Judge Audra Mori, Case 22STCV26483 2023-01-06 Tentative Ruling

Plaintiff Lydia Sanchez (“Plaintiff”) filed this action against Defendant Ralphs Grocery Company (“Defendant”), et al. for injuries relating to Plaintiff’s alleged slip and fall in Defendant’s grocery store. The complaint alleges, “Plaintiff was walking towards the floral department when she violently slipped and fell on water that had collected on Defendants floor creating a dangerous and slippery condition, resulting in Plaintiffs injuries and related damages.” (Compl. ¶ 11.) Plaintiff asserts causes of action for premises liability and general negligence against Defendant.

Defendant filed its answer to the complaint on November 2, 2022, containing a general denial and 16 affirmative defenses.

Plaintiff now demurs to the 7th (statute of limitations), 8th (due process violation), 13th financial responsibility), and 15th (premises liability) affirmative defenses in Defendant’s answer. Defendant opposes the demurrer, and Plaintiff filed a reply.

Plaintiff contends the subject four affirmative defenses fail to allege facts sufficient to constitute a defense. Plaintiff argues the defenses are not supported by any factual allegations and are uncertain.

In opposition, Defendant argues the answer sufficiently gives Plaintiff notice of the nature of Defendant’s defenses, and that because Plaintiff’s complaint was unverified, Defendant is entitled to a general denial. Defendant argues the demurrer should be overruled so that Defendant can continue to conduct discovery to support the defenses. Further, Defendant contends sanctions under CP § 128.5 should be imposed against Plaintiff for bringing this demurrer.

Plaintiff, in reply, again asserts the affirmative are not supported with any facts, and that the four defenses do not give Plaintiff notice of the defenses that Defendant intends to actually rely on.

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.)

The 7th affirmative defense asserts that the complaint is barred by the applicable statute 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.) Accordingly, Defendant adequately pleaded this defense.

The 8th, 13th, and 15th affirmative defenses in the amended complaint allege (a) the “that the claim for punitive or exemplary damages violates the rights of this answering Defendant guaranteed by the due Process clause of the United States Constitution”, (b) “that non-economic damages may not be recovered as to any cause of action by virtue of the bar of Civil Code §§3333.3 through 3333.4 …”, and (c) that “plaintiff's alleged injuries were not caused by any dangerous, defective or deceptive condition of this answering defendant's premises.” (Answer ¶¶ 8, 13, 15.)

These 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.) Defendant must plead facts to support each defense. Thus, Defendant’s answer is improperly pleaded as to these defenses. (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.)

Moreover, while the 8th defense asserts that the claim for punitive damages violates Defendant’s due process rights, the complaint does not contain a prayer for punitive damages. As to the 13th defense, Civil Code § 3333.3 states, “In any action for damages based on negligence, a person may not recover any damages if the plaintiff's injuries were in any way proximately caused by the plaintiff's commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony”, and Civil Code § 3333.4 applies “in any action to recover damages arising out of the operation or use of a motor vehicle …” (Id. § 3333.4(a).) There are no facts pled whatsoever to suggest that either of these provisions are appliable in this action, which the complaint alleges relates to Plaintiff’s slip and fall on Defendant’s property.

Additionally, as to the 15th affirmative defense, as Plaintiff argues, both the 12th and 15th affirmative defenses assert that Plaintiff's alleged injuries “were not caused by any dangerous, defective or deceptive condition” of Defendant's premises. (Answer ¶¶ 12, 15.) Thus, the 15th defense is merely duplicative of the 12th defense and adds nothing new to the answer or litigation. Defendant fails to offer any explanation why the duplicative defense is required or should be permitted in this matter.

Furthermore, the 15th affirmative defense is 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 issue raised in the affirmative defense is properly joined by Defendant’s general denial and not appropriately pleaded as an affirmative defense. (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.”].) Defendant’s general denial puts all elements of Plaintiff’s claims at issue, including causation.

To the extent Defendant contends it may waive the defenses if 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 Defendant is unaware of facts supporting its purported affirmative defenses- in which case there is no waiver- or it is aware of them and chose not to plead them in support of the affirmative defenses despite California being a fact pleading jurisdiction. Either way, Defendant’s answer is improperly pleaded. (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.)

Defendant 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. It is not appropriate to list all the affirmative defenses of which one can think in hopes that discovery will render some of them relevant. If facts are subsequently discovered that support the addition of affirmative defenses, Defendant 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 Defendant to demonstrate there is a possibility it can state valid affirmative defenses if given leave to amend. While Defendant requests leave to amend, it does not make any showing as to what facts it 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 8th, 13th, and 15th affirmative defenses is sustained without leave to amend. If Defendant appears 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 Defendant 20 days leave to amend the answer.

Defendant’s request for sanctions pursuant to CCP § 128.5 is denied. Given that the demurrer is being sustained in part, Plaintiff’s demurrer was not brought as a bad-faith action or tactic, nor was it frivolous. Further, Defendant is wrong that Defendant was not required to comply with the 21-day safe harbor period before requesting sanctions. CCP § 128.5(f)(1)(B) states, “If the alleged action or tactic is the making or opposing of a written motion … that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Emphasis added.) While Defendant cites to San Diegans for Open Government v. San Diego (2016) 247 Cal.App.4th 1306, 1311 (“San Diegans”), in arguing that Defendant was not required to comply with the safe harbor provision, San Diegans was decided before the 2017 amendment to CCP § 128.5 was enacted that clearly incorporated the safe harbor period.

Hon. Audra Mori

Judge of the Superior Court