Judge: Christopher K. Lui, Case: 22STCV09498, Date: 2022-10-19 Tentative Ruling
Case Number: 22STCV09498 Hearing Date: October 19, 2022 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the demurrer 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 not all parties appear, the Court will
adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendant committed legal malpractice in connection with construction licensing laws, resulting in Plaintiff being unable to collect its construction fees.
Plaintiff Vertiv Corporation demurs to the Answer to the First Amended Complaint.
TENTATIVE RULING
Plaintiff Vertiv Corporation’s demurrer to the Answer to the First Amended Complaint is SUSTAINED with leave to amend as to the second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, twentieth, and twenty-first affirmative defenses, and without leave to amend as to the eighteenth, nineteenth and twenty-third affirmative defenses.
The demurrer is OVERRULED as to the sixteenth affirmative defense.
Defendant is given 30 days’ leave to amend the answer.
ANALYSIS
Demurrer
Request For Judicial Notice
Plaintiff’s request that the Court take judicial notice of the First Amended Complaint and Answer thereto filed in this action is GRANTED per Evid. Code § 452(d)(court records).
Defendant’s request that the Court take judicial notice of the First Amended Complaint, demurrer thereto and the Court’s order overruling the demurrer is GRANTED per Evid. Code, § 452(d)(court records).
Meet and Confer
The Declaration of Hannah B. Stetson reflects that counsel for moving party satisfied the meet and confer requirement set forth in CCP § 430.41.
Discussion
Plaintiff demurs to the Answer to the First Amended Complaint on the following grounds.
1. Second Affirmative Defense (Waiver); Third Affirmative Defense (Estoppel); Fifth Affirmative Defense (Consent and/or Authorization); Sixth Affirmative Defense (Knowledge of Plaintiffs); Seventh Affirmative Defense (Assumption of Risk); Eighth Affirmative Defense (Failure to Use Reasonable Care); Ninth Affirmative Defense (Negligence or Wrongful Acts of Third Parties); Tenth Affirmative Defense (Intervening or Superseding Causes or Events); Eleventh Affirmative Defense (Full Performance); Twelfth Affirmative Defense (Performance Excused); Thirteenth Affirmative Defense (Lack of Standing); Fourteenth Affirmative Defense (Unclean Hands); Fifteenth Affirmative Defense (Laches); Seventeenth Affirmative Defense (Failure to Add Necessary Parties); Twentieth Affirmative Defense (Uncertain Damages); Twenty-First Affirmative Defense (Failure to Mitigate Damages).
A. Re: Failure To State Facts Sufficient To Constitute A Defense and Uncertainty.
“New matter constituting an affirmative or special defense must be specially pleaded in the answer; otherwise, it cannot be relied on. . . .” (Richter v. Adams (1937) 19 Cal.App.2d 572, 576.)
(1) In General. An
affirmative defense must be pleaded in the same manner as if the facts were set
forth in a complaint. In other words, the general requirement of stating the
ultimate facts applies and, where particularity in pleading is necessary in a
complaint, it is equally necessary in an affirmative defense involving the
issue. (Bruck v. Tucker (1871) 42 C. 346, 352; Greiss v. State Inv. & Ins.
Co. (1893) 98 C. 241, 244, 33 P. 195; Bradbury v. Higginson (1914) 167 C. 553,
557, 140 P. 254 [if matter set up is equitable cause of action, answer must contain
all averments essential to statement of cause of action as such]; see 19B
Am.Jur. P.P. Forms (2007 ed.), Pleading, §85 et seq.)
(2) Argumentative Denials. The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form ("argumentative denials"). (Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543, 81 P.2d 533; Jolley v. Clemens (1938) 28 C.A.2d 55, 65, 82 P.2d 51, supra, §1077.)
(5 Witkin Cal. Proc. Plead § 1082.)
Affirmative defenses consisting only of legal conclusions do not survive demurrer. Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, 1117: Affirmative defenses cannot be “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.’ (Citation omitted.)” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)
The demurrer to the second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, twentieth, and twenty-first affirmative defenses is SUSTAINED with leave to amend. These must be supported by factual detail which constitute new matter, and demonstrate applicability to the sole cause of action for professional negligence. If Defendant has no idea why it is asserting the defense, then it should not be asserted. If there are facts uncovered during discovery which support a defense, Defendant may seek leave to amend on this basis.
2. Sixteenth Affirmative Defense (Statute of Limitations).
A. Re: Failure To State Facts Sufficient To Constitute A Defense and Uncertainty.
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.
(Civ. Proc. Code, § 458.)
Here, the affirmative defense cites the applicable statute of limitations, which is sufficient.
The demurrer to the sixteenth affirmative defense is OVERRULED.
3. Eighteenth Affirmative Defense (No Proximate Cause); Nineteenth Affirmative Defense (No Damages).
This affirmative defense appears to simply be a denial in affirmative form, and is not properly asserted as an affirmative defense because it does not plead new matter. (5 Witkin Cal. Proc. Plead § 1082, supra.)
The demurrer to the eighteenth, nineteenth affirmative defenses is SUSTAINED without leave to amend.
4. Twenty-Third Affirmative Defense (Reservation
of Additional Defenses).
Defendant
must obtain leave of Court to amend the Answer once the case is at-issue.
The demurrer to the twenty-third affirmative defense is SUSTAINED without leave to amend.
Defendant is given 30 days’ leave to amend the answer.