Judge: Anne Hwang, Case: 23STCV17435, Date: 2023-10-18 Tentative Ruling

Case Number: 23STCV17435    Hearing Date: October 18, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On July 26, 2023, Plaintiff Carlo Carrion (Plaintiff) filed a complaint against The Kroger Company and Does 1 to 10 for negligence and premises liability after allegedly slipping on a wet floor in Ralphs. On September 7, 2023, Alpha Beta Company dba Ralphs (erroneously sued as “The Kroger Co.”) filed an answer where it issued a general denial of Plaintiff’s allegations and asserted nineteen affirmative defenses.

Plaintiff now demurs to Ralph’s (Defendant) answer arguing that the first eighteen affirmative defenses: (1) fail to state facts sufficient to constitute a defense and (2) are uncertain.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading.  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  It is sustained only where the defects appear on the face of the pleading or are judicially noticeable.  (Code Civ. Pro., § 430.30.)  No extrinsic evidence may be considered.  (See Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) 

A demurrer to an answer is limited to three grounds:¿¿ 

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(a) The answer does not state facts sufficient to constitute a defense;¿¿ 

(b) The answer is uncertain; or¿¿ 

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.¿¿ 

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(Code Civ. Proc., § 430.20.)¿  

The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading the complaint. The effect of a general denial in an answer is to put in issue the material allegations of the complaint. (Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.)   

In addition to denials, the answer should contain whatever affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial.  Such affirmative defenses or objections are “new matter” and must be specially pleaded. (Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546; Code Civ. Proc. § 431.30(b).) Also, the answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.  (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.)  The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.”  (Code Civ. Proc. §431.30(g).) 

The critical inquiry when a plaintiff demurs to an answer is whether the answer raises a defense to plaintiff’s stated cause of action.  (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) Demurrers to a complaint or an answer generally follow the same rules; however, there are some important differences.  (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.)   

First, for a demurrer to an answer, the defect in question need not appear on the face of the answer.  (South Shore Land Co.. supra, 226 Cal.App.2d at 733.)  “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. [Citations.] 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. [Citations.]” (Id.)  Second, for purposes of a demurrer to an answer, each defense in the answer must be considered separately without regard to any other defense.  (Id. at 733-34.)  Thus, a separately stated defense that is sufficient in form and substance when viewed in isolation does not become insufficient when, on looking at the answer as a whole, that defense appears inconsistent with other parts of the answer. (Id.)  Third, because a defendant is entitled to plead inconsistent defenses, where one separate answer denies all of the allegations of the plaintiff's complaint, the plaintiff is not excused from making proof of the material facts because of admissions of some or all of them found in other and separate answers of the defendant. (Id. at 734.)   

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, 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 parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

            Plaintiff’s counsel declares they attempted to meet and confer by emailing a copy of the demurrer to Defendant’s counsel on September 8, 2023. (Murrin Decl. ¶ 3.) On September 15, 2023, Defendant sent a letter in response and the parties could not resolve the issue. (Id.) It does not appear the parties conferred in person or by telephone pursuant to section 430.41. However, a failure to meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc. § 430.41 (a)(4).)

ANALYSIS

As an initial matter, the Court declines Defendant’s suggestion to transfer the case on its own motion. (Opposition at pg. 2.) The Civil Case Cover Sheet filed by Plaintiff indicated an address of 4311 Lincoln Blvd., Marina Del Rey, CA 90292. (See Civil Case Cover Sheet, at Step 4.) Although the case was assigned to this Court, the Marina Del Rey location will be considered when the case is assigned for trial.

Defendant’s First Affirmative Defense alleges that Plaintiff’s Complaint does not state facts sufficient to constitute a cause of action and its Fifteenth Affirmative Defense alleges it was not the proximate cause of Plaintiff’s injuries. These defenses are not “new matter” but are simply denials. Accordingly, these “defenses” need not state additional facts.

The Second Affirmative Defense states that Plaintiff’s action is barred by the statute of limitations. To properly plead a statute of limitations defense, a defendant must either (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense, or (2) plead the specific section and subdivision. (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91; Code Civ. Proc. § 458.) Here, Defendant asserted “Code of Civil Procedure sections 335.1, 337, 339, and /or 343.” (Answer ¶ 3.) Under section 335.1, a plaintiff has two years to commence an action for injury based on the negligence of another. (Code. Civ. Proc. § 335.1.) Because Plaintiff’s complaint alleges premises liability against Defendant, section 335.1 is proper. The demurrer to this cause of action is overruled.

The Third Affirmative Defense alleges the comparative negligence of Plaintiff, alleging that “Plaintiff so negligently and recklessly conducted him/herself so as to totally cause and/or contribute in some degree to the injuries and damages of which Plaintiff now complains.” (Answer ¶ 4.) The Eighth Affirmative Defense alleges that “Plaintiff, at all times, knew and appreciated the dangers and risks, if any, that may have been associated with Plaintiff’s activities on the date of this incident.” (Answer ¶ 9.) The Tenth Affirmative Defense alleges that “said condition was open and obvious, or should have been open and obvious to a reasonable prudent person.” (Answer ¶ 11.) These allege ultimate facts, and the demurrer as to the third, eighth, and tenth affirmative defenses are overruled.

On the other hand, the following affirmative defenses do not state ultimate facts, but rather legal conclusions. As a result, the demurrers to these affirmative defenses are sustained:

Fourth: Failure to Mitigate

Fifth: Intervening and Superseding Causes

Sixth: Negligence of Others

Seventh: No liability for Non-Economic Damages

Ninth: Abnormal Use of Premises

Eleventh: Laches

Twelfth: Unclean Hands

Thirteenth: Misuse of Products

Fourteenth: Estoppel

Sixteenth: Passive Acts

Seventeenth: Spoilation of Evidence

Eighteenth: Witt v. Jackson

Defendant contends that it may risk waiver by not placing affirmative defenses in its answer. However, Defendant may move for leave to amend their answer under Code of Civil Procedure section 473(a). (See Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) Moreover, while it is correct that California does not require evidentiary pleadings, Defendant must still allege ultimate facts and not rely on legal conclusions.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s demurrer to Defendant’s answer is overruled in part and sustained in part. Specifically, the Court overrules the demurrer to the First, Second, Third, Eighth, Tenth, and Fifteenth Affirmative Defenses, and sustains the demurrer to the Fourth, Fifth, Sixth, Seventh, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Sixteenth, Seventeenth, and Eighteenth Affirmative Defenses.

The Court grants leave to amend. Any amended answer shall be filed within 30 days.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.