Judge: Andrew E. Cooper, Case: 24CHCV00899, Date: 2024-09-18 Tentative Ruling

Case Number: 24CHCV00899    Hearing Date: September 18, 2024    Dept: F51

DEMURRER

Demurrer filed: 5/10/24

MOVING PARTY: Plaintiff Arsen Titanyan (“Plaintiff”)

RESPONDING PARTY: Defendant David Safar (“Defendant”)

NOTICE: OK 

RELIEF REQUESTED: Plaintiff demurs to Defendant’s entire answer.

TENTATIVE RULING: The demurrer is sustained with 20 days leave to amend.

BACKGROUND 

This is a premises liability action in which Plaintiff alleges that on 4/26/23, while he was an invitee at Defendant’s house, he was injured when he slipped and fell on the stars between the first and second steps. (Compl. p. 4.) On 3/19/24, Plaintiff filed his complaint against Defendant, alleging the following causes of action: (1) General Negligence; and (2) Premises Liability.

On 5/1/24, Defendant filed his answer to Plaintiff’s complaint. On 5/10/24, Plaintiff filed the instant demurrer against Defendant’s answer. On 9/5/24, Defendants filed their opposition. No reply has been filed to date.

ANALYSIS

As a general matter, a party against whom an answer has been filed may object to the answer by demurrer, on the basis of 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 fairly 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.)

A.    Meet-and-Confer

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 on 5/1/24 and 5/6/24, he sent Defendant’s counsel meet and confer letters attempting to discuss the issues raised in the instant demurrer, but the parties were unable to informally resolve the dispute. (Decl. of Ruben Vardanyan, ¶¶ 2–5.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements set forth under Code of Civil Procedure section 430.41, subdivision (a).

B.     Factual Sufficiency

“An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. … This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.” (South Shore Land Co., 226 Cal.App.2d at 733.)

Here, Plaintiff demurs to each of Defendant’s affirmative defenses in his answer, on the basis that Defendant fails¿to allege facts sufficient to state a defense. Plaintiff argues that the Court should sustain the demurrer and “strike all defenses because they fail to state facts sufficient to constitute a defense and are, therefore, ambiguous and uncertain.” (Dem. 4:27–28.) “Plaintiff should not be forced to guess which defenses apply to which causes of action, the facts supporting those defenses, and conduct lengthy discovery into meritless defenses.” (Id. at 4:21–23.)

In opposition, Defendant argues that “Defendant is allowed to reference the complaint itself as to the facts in order to establish the affirmative defense. Defendant is not required to plead the same facts as that in the complaint.” (Def.’s Opp. 4:12–14, citing South Shore Land Co., 226 Cal.App.2d 725.) Defendant further contends that “Defendant’s Answer to Plaintiff’s Unverified Complaint, states sufficient facts in support of Defendant’s affirmative defenses, and refers back to Plaintiff’s Unverified Complaint, referencing all causes of action with language sufficient to assert the affirmative defenses to Plaintiff’s Unverified Compliant.” (Id. at 5:18–22.)

However, upon review of Defendant’s answer, the Court notes that Defendant makes no incorporation by reference to the factual allegations in Plaintiff’s complaint. To the contrary, “Defendant denies each, every and all of the allegations of said Complaint, and the whole thereof, and denies Plaintiff has sustained damages in any sum or sums alleged, or in any other sum or at all.” (Answer 1:19–21.) Therefore, under South Shore Land Co., Defendant effectively eliminated Plaintiff’s factual allegations as stated in his complaint, and fails to allege any additional facts in his answer, besides an allegation that “at the time of the accident described in the complaint, plaintiff was in the course and scope of his/her employment with this answering defendant.” (Answer 3:19–21.)

Based on the foregoing, the Court finds that Defendant has failed to state facts sufficient to constitute the defenses asserted in his answer. Accordingly, the demurrer is sustained.

C.    Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the opposing party to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Here, under the Court’s liberal policy of granting leave to amend, Defendant is granted 20 days leave to amend the answer to cure the defects set forth above.

CONCLUSION 

The demurrer is sustained with 20 days leave to amend.

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at CHAdeptF51@LACourt.org or by telephone at (818) 407-2233.