Judge: Christopher K. Lui, Case: 18STCV02166, Date: 2022-08-03 Tentative Ruling

Case Number: 18STCV02166    Hearing Date: August 3, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer and motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            Plaintiffs allege that Defendant committed legal malpractice in handling the underlying property damage claim and personal injury claim arising from an apartment fire.

            On May 13, 2022, the Court sustained the demurrer to the to the Answer to the First Amended Cross-Complaint with leave to amend as to the first through fifteenth affirmative defenses.Cross-Complainant Colleen O’Hara now demurs to the First Amended Answer to the First Amended Cross-Complaint and moves to strike portions thereof. 

Cross-Complainant Colleen O’Hara now demurs to the First Amended Answer to the First Amended Cross-Complaint and moves to strike portions thereof. 

TENTATIVE RULING

            Cross Complainant Colleen O’Hara’s demurrer to the First Amended Answer to the First Amended Cross-Complaint is SUSTAINED with 30 days’ leave to amend as to the fourth and fifth affirmative defenses, SUSTAINED without leave to amend as to the third and sixth affirmative defenses, and OVERRULED as to the first and second affirmative defenses.

            O’Hara’s motion is MOOT as it relates to the third, fourth, fifth, and sixth affirmative defenses, and DENIED as it relates to the first and second affirmative defenses. 

DISCUSSION: 

Demurrer 

Request for Judicial Notice

            O’Hara’s request for judicial notice of various documents filed in this case is GRANTED as they are records of the Court. (Evid. Code § 452(d).)

Meet and Confer

            The Declaration of Colleen O’Hara reflects that Cross-Complainant satisfied the meet and confer requirement set forth in CCP § 430.41.

Discussion 

1.         All Affirmative Defenses

            Cross Complainant demurs to each Affirmative Defense on the basis that the Amended Answer was in violation of the Court's Ruling in that it was filed over 30 days beyond the period authorized by the Court.

            Cross Defendants argue that O’Hara has miscounted the 30 day period because (1) the 30^th calendar day was a Sunday, and (2) the Court’s ruling was served by mail which extends the deadline by 5 days under CCP § 1013. The Court agrees. Accordingly, the Amended Answer needed to be filed by June 17, 2022. As the Amended Answer was filed on June 13, 2022, the demurrer is not sustained on this ground.

2.         First Affirmative Defense: Failure to State a Cause of Action

            O’Hara argues that the first affirmative defense improperly sets forth multiple separate defenses in one, in violation of California Rule of Court 2.112.

            Cross Defendants correctly point out that this is not grounds for a demurrer. Accordingly, the demurrer to the first affirmative defense is OVERRULED.

3.         Second Affirmative Defense: Statute of Limitations

O’Hara argues that the defense violates Civil Code § 458. The Court assumes she means CCP § 458.

In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section_____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. (CCP § 458.)

Here, the affirmative defense cites the applicable statute of limitations, which is sufficient.

O’Hara also argues that this affirmative defense does not intelligibly relate to Cross Complainants' causes of action. The Court disagrees. The defense lays out the relevant statute of limitations and which causes of action which they relate to. O’Hara also makes argument with regard to specific parts of the affirmative defense, but not the defense in its entirety. Accordingly, the Court need not address these arguments as it only relates to part of the affirmative defense and not the entire defense.

            The demurrer to the second affirmative defense is OVERRULED.

4.         Third and Sixth Affirmative Defenses

            O’Hara demurs to these defenses on the basis that they are brand new and were added without leave of court.

Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment. (CCP § 472(a).)

As Cross Defendants did not obtain leave to add these defenses, the demurrer is SUSTAINED without leave to amend as to the third and sixth defenses. Cross Defendants must move to amend the answer in order to add new defenses.

5.         Fourth Affirmative Defense

            O’Hara argues that Cross Defendants still have not stated the causes of action that the defense is intended to answer.

CCP § 431.30(g) states: “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”

Here, the affirmative defense does not specify with intelligibility which causes of action it is intended to answer. Accordingly, the demurrer to the fourth affirmative defense is SUSTAINED with 30 days’ leave to amend.

6.         Fifth Affirmative Defense

O’Hara argues that Cross Defendants still have not stated the causes of action that the defense is intended to answer. The Court agrees. The affirmative defense does not specify with intelligibility which causes of action it is intended to answer.

Accordingly, the demurrer to the fifth affirmative defense is SUSTAINED with 30 days’ leave to amend.

Motion To Strike

The motion to strike is MOOT as it relates to third, fourth, fifth, and sixth affirmative defenses in light of the ruling on demurrer. The motion to strike is DENIED as it relates to the first and second causes of action because O’Hara makes the same arguments made in the demurrer which are addressed above.