Judge Andrew E. Cooper, Case Number: 23CHCV01324, Date: 2023-10-04 Tentative Ruling

Los Angeles Superior Court Case # 23CHCV01324

RELIEF REQUESTED: Plaintiff demurs against Defendant’s entire Answer to Plaintiff’s Complaint.

Plaintiff is reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions.

This is a personal injury action in which Plaintiff alleges that on 12/1/21, “defendants and each of them so negligently owned, operated, entrusted and/or drove their vehicle so as to cause injuries to plaintiff.” (Compl. p. 6.)[1] On 5/3/23, Plaintiff filed his complaint, alleging against Defendant the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence. On 6/20/23, Defendant filed her answer.

On 7/3/23, Plaintiff filed the instant demurrer to Defendant’s answer. On 8/29/23, Defendant filed her opposition. No reply has been filed to date.

As a general matter, a party against whom an answer has been filed may object to the answer by demurrer, based on any single or combination the following grounds: “(a) The answer does not state facts sufficient to constitute a defense; (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible; (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc. § 430.20.)

Demurrers against answers are uncommon, and the determination of whether an answer states a defense is generally governed by the same principles that apply in determining if a complaint states a cause of action. (South Shore Land Co. v. Petersen (1965) 226 Cal.App.2d 725, 732.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The sufficiency of the answer requires an examination of the complaint because the adequacy of the answer must be determined in reference to the complaint it purports to answer. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880.)

Here, Plaintiff demurs to each of the three affirmative defenses set forth by Defendant in her Answer, arguing that Defendant does not state facts sufficient to constitute each defense.

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Plaintiff’s counsel declares that he emailed Defendant’s counsel to request to meet telephonically to meet and confer regarding the issues raised in the instant demurrer but received no response. (Decl. of Joshua D. Allton ¶ 4–6.) Therefore, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

Comparative negligence and apportionment of fault reduces plaintiff's recovery in proportion to plaintiff's share of fault. (6 Witkin, Summary of California Law, Torts §§ 1484–1492, 1517–1536.) “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” (Civ. Code § 1431.2, subd. (a).) The issue of mitigation is one of fact, and “a plaintiff will not be compensated for damages which he could have avoided by reasonable effort or expense.” (Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 949.)

“2. If plaintiff suffered or sustained any loss, damage or injury as alleged in the complaint, such loss, damage or injury was proximately caused and contributed to by plaintiff failing to conduct herself in a manner expected of a reasonably prudent person in the conduct of her affairs and person. Plaintiff's recovery herein is barred, diminished or reduced to the extent that plaintiff's loss, damage or injury is attributed to plaintiff's negligence. […]

3. If plaintiff suffered or sustained any damages as alleged in the complaint, those damages were proximately caused and contributed to by persons other than this answering defendant, including but not limited to Doe defendants. The liability of all defendants, named or unnamed, should be apportioned according to their relative degrees of fault, and the liability, if any, of this answering defendant should be reduced accordingly. […]

4. Plaintiff's recovery is reduced or diminished by plaintiff's failure to mitigate plaintiff's damages.” (Def.’s Answer ¶¶ 2–4.)

As Defendant asserts, “Plaintiff’s complaint alleges that the negligent use of motor vehicles caused an accident that resulted in her injuries. The answer, continuing along that line, sufficiently alleges in the same general terms that plaintiff and/or the doe defendants’ conduct related to those events proximately caused the accident.” (Def.’s Opp. 5:3–6.). The Court agrees and finds that Defendant’s affirmative defenses for Apportionment of fault and Comparative Negligence are directly applicable to Plaintiff’s claims.

Plaintiff’s argument that “affirmative defenses must be specifically plead to survive demurrer” applies only to new matter constituting a special defense. (Dem. 5:24–25, citing Houk v. Williams Bros. (1943) 58 Cal.App.2d 573, 582.) Here, the Court finds it satisfactory that Defendant has plead all three of her affirmative defenses in accordance with the samples provided by the California Affirmative Defenses Expert Series treatise. (3 Cal. Affirmative Def. §§ 36:8, 48:17 (2d ed.).)

As Defendant observes, her Answer “adequately apprises plaintiff of the issues to be met in discovery and at trial by adequately describing the nature of the affirmative defenses.” (Def.’s Opp. 6:24–26.) Accordingly, the demurrer is overruled.

[1] The Court notes that Plaintiff has failed to paginate the Complaint. As such, the Court refers to the page numbers in consideration of the entire document filing.