Judge: Daniel M. Crowley, Case: 22STCV05201, Date: 2022-08-15 Tentative Ruling

Case Number: 22STCV05201    Hearing Date: August 15, 2022    Dept: 28

Plaintiffs Ariella Kerendian and Jonathan Bakhsheshian’s Demurrer with Motion to Strike to Defendants’ Answer

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On February 10, 2022, Plaintiffs Ariella Kerendian (“Kerendian”) and Jonathan Bakhsheshian (“Bakhsheshian”) filed this action against Defendant Yasmine Anada Tsu (“Yasmine”) and Irene Tsu (“Irene”) for negligence, negligent entrustment and intentional infliction of emotional distress.

On April 27, 2022, the clerk entered default against Defendants.

On May 6, 2022, Defendants filed their answer. On June 13, 2022, Defendants filed another answer; it was not listed as an amended answer.

On May 17, 2022, Plaintiff filed a Demurrer with Motion to Strike to be heard on June 24, 2022. The Court continued the hearing on this motion to August 15, 2022.

Trial is scheduled for August 10, 2023. 

PARTY’S REQUESTS

Plaintiffs request that the Court sustain the demurrer for failure to state facts sufficient to constitute a defense. Plaintiffs also request the Court strike the answer and enter default against both Defendants.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

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, 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.)

When pleading the Statute of Limitations as an affirmative defense, it is not necessary to state specific facts showing the defense. A defendant can generally state the cause of action is barred by the provisions of an applicable section. CCP § 458.

DISCUSSION

As discussed at the previous hearing on this motion, the Court noted that defaults have been entered against both Defendants. Parties did not file a stipulation reflecting an agreement to strike the first answer, to set aside defaults, or to deem the June 13^th answer as the operative answer. However, the Court notes that Defendants have filed a Motion to Vacate Default; the Court continues the motion to be heard concurrently with that motion. The Court order parties to continue to meet and confer to see if these issues can be resolved prior to the next hearing.

CONCLUSION

Plaintiffs Ariella Kerendian and Jonathan Bakhsheshian’s Demurrer to Defendants’ Answer is CONTINUED to November 9, 2022, at 1:30 p.m. in Department 28 of the Spring Street Courthouse. Parties are ordered to meet and confer prior to the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.