Judge: Alison Mackenzie, Case: 24STCV05925, Date: 2024-09-10 Tentative Ruling

Case Number: 24STCV05925    Hearing Date: September 10, 2024    Dept: 55

NATURE OF PROCEEDINGS:  Hearing on Demurrer without Motion to Strike to Answer

Jonathan Mitchell’s Demurrer without Motion to Strike to Answer is overruled. 

BACKGROUND

Plaintiff Johnathan Mitchell filed this action against Defendant Aptive Environmental LLC, alleging violations of the California Fair Employment and Housing Act.

Defendant filed its Answer, asserting 26 affirmative defenses on May 22, 2024.

Plaintiff filed a Declaration of Demurring Party in Support of Automatic Extension on June 4, 2024.

Plaintiff filed a Demurrer without Motion to Strike to Defendant’s Answer on July 3, 2024.

The motion now before the Court is Plaintiff’s Demurrer to Defendant’s Answer. Plaintiff demurs to each of the 26 affirmative defenses in Defendant’s Answer. Defendant filed an opposition.  Plaintiff filed a reply. 

LEGAL STANDARD

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations, (2) facts that can be reasonably inferred from those expressly pleaded, and (3) judicially noticed matters. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The Court may not consider contentions, deductions, or conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638. Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. § 430.10, subd. (e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644. “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-610.

Under Code of Civil Procedure section 430.10, subdivision (f), a demurrer may also be sustained if a complaint is “uncertain.[1]“ Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.

A demurrer to an answer challenges the sufficiency of the factual allegations of the answer. A defendant must plead ultimate facts rather than conclusions to state viable affirmative defenses. The allegations must be “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d. 367, 384.

ANALYSIS

Plaintiff demurs to the Answer filed by Defendant under section 430.20 on the grounds that each of Defendant’s affirmative defenses fails to state sufficient facts to constitute an affirmative defense. Plaintiff further demurs to affirmative defenses 2 and 6 to 26 on the grounds they are uncertain. 

Defendant opposes the demurrer on the grounds that it is untimely, and the declaration submitted to extend time does not comply with section 430.41. Defendant further argues that the affirmative defenses are properly pleaded and alternatively requests leave to amend.

A demurrer to an answer must be filed within 10 days after service of the answer. § 430.40. Defendant served the Answer on 5/22/24 via email. Because the deadline to file a demurrer fell on a Saturday the demurrer was due on 6/3/24. See § 12a. However, here, Plaintiff did not file his demurrer until 7/3/2024.  Accordingly, whether Plaintiff’s demurrer is timely depends on whether Plaintiff was entitled to an automatic extension under section 430.41, subdivision (a)(2).

Section 430.41 requires a meet and confer process via telephone, video conference, or in person before filing a demurrer, 5 days before the demurrer is due. If the parties are not able to meet and confer, the demurring party shall be granted an automatic 30-day extension by filing and serving a declaration under penalty of perjury that a good faith meet and confer was made and explaining why the parties could not meet and confer. § 430.41, subd. (a)(2). Plaintiff did not attempt to meet and confer until Friday, 5/31/24, only 3 days before the filing deadline, and did so in a letter. Alizadeh Decl.; Demurrer, Exh. 1. Therefore, Plaintiff did not comply with either the deadline to meet and confer or the requirement that the meet and confer occur in person or over telephone or video conference. Because the declaration shows Plaintiff failed to comply with the meet and confer requirements, Plaintiff is not entitled to an automatic extension. Therefore, the Demurrer is untimely.

The Court has discretion to consider an untimely demurrer. Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-750. However, the Court chooses not to exercise its discretion based on Plaintiff’s failure to timely meet and confer in compliance with section 430.41, subdivision (a)(2). The Court overrules the demurrer as untimely.

CONCLUSION

Plaintiff's demurrer to the Answer is overruled.