Judge: Audra Mori, Case: 22STCV13413, Date: 2022-09-02 Tentative Ruling

Case Number: 22STCV13413    Hearing Date: September 2, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Edward Rozell III (collectively, “Plaintiffs”) filed this action against Defendants Dennis Palmieri (“Palmieri”) and EAN Holdings, LLC (“EAN”) for damages arising from a motor vehicle vs. bicycle accident.  Palmieri allegedly negligently and carelessly switched his lane of travel while operating a vehicle owned by EAN and collided with Plaintiff’s bicycle.  The complaint alleges causes of action for negligence and negligent entrustment.  On August 4, 2022, EAN filed an answer to the complaint that contains a general denial and seven affirmative defenses.  The affirmative defenses are numbered as two to eight; there is no affirmative defense labeled as number one.

Plaintiff now demurs to EAN’s answer arguing that the answer fails to plead sufficient facts to support the defenses.  Any opposition to the demurrer was due by August 22, 2022; as of August 31, 2022, no opposition has been filed.

2. Demurrer to Answer

a. Legal Standard

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 at 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.) 

b. 2^nd, 5^th, and 6^th Affirmative Defenses

The 2^nd, 5^th and 6^th affirmative defenses in the answer allege (a) the complaint fails to state a cause of action against EAN, (b) that Plaintiff can only recover non-economic damages except those allocated to EAN, and (c) that Plaintiff’s claims are limited to economic damages under Civil Code § 3333.4. 

These 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].”].)  These issues are properly joined by EAN’s general denial and not appropriate 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.”].)  EAN’s general denial puts all elements of Plaintiffs’ claims at issue, including causation and damages.

Therefore, the demurrer to the 2^nd, 5^th and 6^th affirmative defenses is sustained without leave to amend. 

c. 3^rd, 4^th, and 8^th  Affirmative Defenses

The 2^nd, 6^th through 21^st and 23^rd 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.)  EAN must plead facts to support each defense.  Thus, EAN’s answer is improperly pleaded.  (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.) 

The Court suggests EAN 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, EAN 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 EAN to demonstrate there is a possibility it can state valid affirmative defenses if given leave to amend; however, EAN does not oppose the demurrer or otherwise make a showing as to how the above defects can be cured.  (See Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260.) 

Accordingly, the demurrer to the 3^rd, 4^th and 8^th affirmative defenses is sustained without leave to amend.  If EAN appears at the hearing and provides specific facts as to how these affirmative defenses can be cured to state a valid affirmative defense, the Court will grant EAN 20 days leave to amend the answer. 

d. 7^th Affirmative Defense

The 7^th affirmative defense claims the complaint is barred by the applicable statute of limitations under CCP § 340. 

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

The demurrer to the 7^th affirmative defense, therefore, is overruled.

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 2^nd day of September 2022