Judge Audra Mori, Case 21STCV32074 2023-01-05 Tentative Ruling

Plaintiff Lidia Lemus De Umana (“Plaintiff”) filed this action against Defendant WDW Joint Venture, et al. for damages relating to Plaintiff’s slip and fall while in defendants’ premises. The complaint alleges that while Plaintiff was lawfully on defendants’ premises as a resident or guest of a skilled nursing facility, she slipped and fell on a liquid substance on the floor. (Compl. ¶ 17.) The complaint asserts causes of action for premises liability and general negligence against all defendants.

On October 17, 2022, Defendants WDW Joint Venture dba Downey Community Health Center (erroneously sued as Downey Community Health Center), LTC Investors D-BJW, LLC, LTC Investors D-BW, LLC, LTC Investors D-HJ, LLC, SD Sheryl Brigette, LLC, WDW Frankel Unified Credit Holdings, LLC, and H&E Wilkins Family II Limited Partnership (collectively, “Defendants”) filed their answer to the complaint containing a general denial and 31 affirmative defenses.

Plaintiff now demurs to Defendants’ answer arguing the 31 alleged affirmative defenses do not allege sufficient facts to constitute a defense. Plaintiff contends the boilerplate defenses do not contain any factual allegations and are supported by conclusory allegations only. Plaintiff argues the defenses are all vague and uncertain.

In opposition, Defendants argue that their answer properly pleads all 31 defenses and informs Plaintiff of the defenses that will be litigated. Defendants aver that their answer sufficiently apprises Plaintiff of the basis of the defenses.

Plaintiff, in reply, argues that none of the defenses apprise Plaintiff of what defenses Defendants actually intend to raise at trial, and that none of the defenses are supported by sufficient facts to apprise Plaintiff of the basis for the defenses raised.

A party against whom an answer has been filed may object by demurrer to the answer. (CCP § 430.20.) 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 (complaint, answer or cross-complaint). (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.)

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 defenses or objections are “new matter.” (CCP §431.30(b).) In general, defendant bears the burden of proving “new matter” and, as such, must be specifically pleaded in the answer. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading the complaint. 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.” (CCP §431.30(g).) In sum, California is a fact pleading jurisdiction, not a notice pleading jurisdiction like the federal courts, such that merely putting an opposing party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.)

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.) The demurrer raises the objection that the answer does not state facts sufficient to constitute a defense. (Id. at 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. (Id.) “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.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Plaintiff has sufficiently satisfied this requirement prior to filing the demurrer. (Demurrer Artinian Decl. ¶¶ 2-7.)

c. 2^nd, 4^th, 5^th, 17^th, 19^th, and 20^ththrough 25^th Affirmative Defenses

The 2nd, 4th, 5th, 17th, 19th, and 20th through 25th affirmative defenses are not in the style of “yes, the allegations are true, but,” as is required to state an affirmative defense. (See FPI Development, Inc., 231 Cal.App.3d at 383; see also Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546 [Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a [denial].”].) The issues raised in these affirmative defenses are properly joined by Defendants’ general denial and not appropriately pleaded as affirmative defenses. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal. App. 4th 1319, 1330; see LL B Sheet 1, LLC v. Loskutoff (2019) 362 F.Supp. 3d 804, 818 [“[f]ailure to state a claim is not a proper affirmative defense but, rather, asserts a defect in [the plaintiff's] prima facie case.”].) Defendants’ general denial puts all elements of Plaintiff’s claims at issue, including causation and damages. Further, Defendants in their Opposition do not identify any factual allegations or cite any legal authority to support these purported defenses.

Therefore, the demurrer is sustained without leave to amend as to the 2nd, 4th, 5th, 17th, 19th, and 20th through 25^th affirmative defenses.

d. 3^rd, 6^th, 8^th through 16^th, 18^th, 24^th, and 27^th through 30^th Affirmative Defenses

The 3rd, 6th, 8th through 16th, 18th, 24th, and 27th through 30th affirmative defenses merely contain boilerplate conclusory assertions, and thus, fail to state facts sufficient to constitute a defense as to the alleged affirmative defenses. (FPI v. Nakashima, 231 Cal.App.3d at 384.) Defendants must plead facts to support each defense. In their Opposition, Defendants imply that supporting factual allegations may be found in the Complaint, but they do not identify which factual allegations support each of these defenses.

Defendants also seem to argue that they need not plead facts in support of their affirmative defenses, citing Perkins v. Superior Court (1981) 117 Cal.App. 3d 1, 6. However, the facts of Perkins are distinguishable. In that case, Plaintiff alleged the following facts in support of his claims: Defendants incorrectly published his phone number as that of an auto supply store, causing him to receive unwarranted calls, and although Plaintiff put Defendants on notice of same, they did not stop the practice and instead retaliated by terminating phone service to Plaintiff’s home. Because the complaint had sufficient facts to apprise Defendants of the basis on which Plaintiff was seeking relief, it was inappropriate to strike related conclusions of law, such as that the Defendants acted “wrongfully and intentionally.” Here, Defendants’ affirmative defenses contain virtually no facts.

Thus, Defendants’ answer is improperly pleaded as to these defenses. (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.)

To the extent Defendants contend they may waive any defenses if they are not raised now, waiver is an “intentional relinquishment of a known right after knowledge of the facts.” (Waller v. Truck Ins. Exch. (1995) 11 Cal. 4th 1, 31 [citations omitted].) Either Defendants are unaware of facts supporting their purported affirmative defenses- in which case there is no waiver- or they are aware of them and chose not to plead them in support of the affirmative defenses despite California being a fact pleading jurisdiction. Either way, Defendants’ amended answer is improperly pleaded. (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.)

Defendants should plead only affirmative defenses for which supporting facts are known. Although common, the practice of pleading affirmative defenses which have no basis in known facts is no more appropriate than pleading a complaint without factual support. If facts are subsequently discovered that support the addition of affirmative defenses, Defendants can bring a motion to amend the answer based on the new facts. (See Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159 [liberality is displayed in allowing amendments to answers].)

The burden is on Defendants to demonstrate there is a possibility they can state valid affirmative defenses if given leave to amend. While Defendants request leave to amend, they do not make any showing as to what facts they can allege to state valid defenses for the above. (See Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260.)

Accordingly, the demurrer to the 3rd, 6th, 8th through 16th, 18th, 24th, and 27th through 30th affirmative defenses is sustained without leave to amend. If Defendants appear at the hearing and provides specific facts as to how these affirmative defenses can be cured to state a valid defense, the Court will grant Defendants 20 days leave to amend the answer for those defenses Defendant can identify supporting facts for.

The 31st affirmative defense merely states that Defendants reserve the right to assert additional affirmative defenses if discovery supports them. However, Defendants do not technically have a “right” to amend the answer; rather, Defendants must obtain leave of court to do so. This purported reservation therefore serves no purpose and is not actually a defense. CCP § 473(a)(1) already reserves a party’s ability to amend a pleading, including the answer.

Again, the Court suggests Defendants plead only affirmative defenses for which supporting facts are known; if subsequent facts are discovered, Defendants can bring a motion to amend the answer based on the new facts.

The demurrer is sustained as to the 31st affirmative defense without leave to amend.

The 7th affirmative defense asserts that the complaint is barred by the applicable statutes of limitations.

The defense of statute of limitations need not include specific facts, but instead it may be stated generally with the applicable statute. (CCP § 458.) Defendants, therefore, adequately pleaded this defense.

The 1st affirmative defense asserts that Plaintiff agreed to binding arbitration as a condition to any and all services rendered by Defendants, and that this matter should be submitted to arbitration. The 26th defense asserts that Plaintiff failed to serve Defendants with a notice of intention to sue pursuant to CCP § 364. These affirmative defenses, when read in conjunction with the complaint, allege sufficient ultimate facts to apprise Plaintiff of the basis for the defenses against the complaint.

The demurrer to the 1st, 7th, and 26th affirmative defenses, therefore, is overruled.

Hon. Audra Mori

Judge of the Superior Court