Judge: Audra Mori, Case: 22STCV06109, Date: 2022-08-04 Tentative Ruling

Case Number: 22STCV06109    Hearing Date: August 4, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Jesus Manuel Cazarez (“Plaintiff”) filed this action against Defendants Austin Charles Harper (“Harper”) and Enterprise FM Trust, Inc. for damages arising from a motor vehicle accident.  The complaint asserts claims for negligence against Harper and negligent entrustment against Enterprise.

On June 22, 2022, Harper filed an answer to the complaint.  Plaintiff provides that after meeting and conferring with Harper, Plaintiff agreed to allow Harper to file a First Amended Answer (“FAA”).  The FAA consists of 10 separately pleaded paragraphs asserting affirmative defenses to the complaint. 

July 11, 2022, Plaintiff filed the instant demurrer to the FAA.  The demurrer is unopposed.  However, on July 14, 2022, Harper attempted to file a Second Amended Answer (“SAA”).  There is no showing that the court ever granted Harper leave to file the SAA, or that the parties otherwise stipulated to allow Plaintiff to file a SAA.  (See CCP § 472.)  Therefore, Plaintiff’s operative pleading in this matter is the FAA to which Defendant demurs.  (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 574-75; accord. Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488 [court may grant leave to amend answer at any time].) 

2. Demurrer to First Amended Answer

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.) 

Here, Plaintiff avers that each of the ten affirmative defenses in the FAA are supported only by conclusory allegations and completely devoid of any facts.  Plaintiff contends he should not be forced to conduct discovery upon “scattershot affirmative defenses” that are not supported by any facts.  (Demurrer at p. 6:4-5.) 

Harper does not oppose the demurrer or otherwise dispute these contentions regarding the FAA.  Harper, instead, filed attempted to file a SAA after the demurrer was filed.  Notably, Plaintiff’s purported SAA reduced the number of affirmative defenses pled from 10 to three.  Harper seemingly concedes that he does not have any facts to support many of the affirmative defenses pled in the FAA.  (See (FPI v. Nakashima, 231 Cal.App.3d at 384.)  Moreover, multiple defenses in the FAA are not in the style of “yes, the allegations are true, but,” as is required to state an affirmative defense.  (See Id. 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].”].)  For example, the second affirmative defense in the FAA, which is conspicuously omitted from the improperly filed SAA, pleads only that Plaintiff fails to state facts sufficient to constitute a cause of action.  These issues are properly joined by Harper’s 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.”].) 

            Based on the foregoing, Plaintiff’s demurrer to the FAA is sustained. 

The burden is on Harper to show in what manner he amend the FAA, and how that amendment will change the legal effect of the pleading.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  

In this case, although Harper does not oppose the demurrer, Harper previously attempted to file a Second Amended Answer.  In light of this fact, and because this is the first challenge to Harper’s answer, leave to amend is granted.

Plaintiff’s demurrer to the FAA is sustained with 20 days leave to amend.   

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 4^th day of August 2022