Judge: Daniel M. Crowley, Case: 22STCV29667, Date: 2023-01-20 Tentative Ruling

Case Number: 22STCV29667    Hearing Date: January 20, 2023    Dept: 28

Plaintiff Rhoda Lee Levi’s Demurrer Defendant Main Electric Supply, LLC’s Answer; Plaintiff Rhoda Lee Levi’s Motion to Strike to Defendant Eduardo De La Cruz’s Answer

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On September 12, 2022, Plaintiff Rhoda Lee Levi (“Plaintiff”) filed this action against Defendants Eduardo De La Cruz (“Cruz”), Main Electric Supply, LLC (“MES”), Penske LGS Rental CA (“Penske”) for negligence, negligent entrustment and negligent hiring, retention and supervision.

On October 18, 2022, Cruz filed an answer. On November 3, 2022, Cruz filed an amended answer. On November 3, 2022, MES filed an answer. On November 21, 2022, Cruz filed a Second Amended Answer. On November 21, 2022, MES filed an amended answer. On November 21, 2022, Penske filed an answer.

On November 29, 2022, Plaintiff filed a Demurrer to MES’s Amended Answer to be heard on January 20, 2023. On January 9, 2023, MES filed an opposition. Plaintiff filed a reply on January 10, 2023.

On November 29, 2022, Plaintiff filed a Motion to Strike Cruz’s Second Amended Answer to be heard on January 20, 2023. On January 9, 2023, Cruz filed an opposition. Plaintiff filed a reply on January 10, 2023.

Trial is scheduled for March 11, 2024.

PARTY’S REQUESTS

Plaintiff requests that the Court sustain the demurrer to MES’s first through fifth affirmative defense for failure to state facts sufficient to constitute a defense.

MES requests the Court overrule the demurrer.

Plaintiff requests the Court grant the motion to strike on the basis that Cruz did not seek leave or file a stipulation allowing for the submission of a second answer.

Cruz requests that the Court deny the motion or deem their proposed answer filed.

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.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b).) The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

CCP § 472(a) states: “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

DISCUSSION

Demurrer

In evaluating a demurrer, the Court reads the answer in the context of the complaint. Plaintiff’s complaint alleges that Cruz, while working for MES, was driving a car owned by Penske. Cruz made a left turn, failed to yield to Plaintiff who was lawfully in a cross-walk, and collided with pedestrian Plaintiff.

Defendant’s answer asserts six affirmative defenses: comparative negligence, intervening and superseding cause, comparative fault, failure to mitigate, no proximate or legal causation and reservation of rights. Based on the limited facts in the complaint, the Court finds the answer is sufficient. Each affirmative defense provides sufficient information for Plaintiff to understand the defense being asserted. The facts in the complaint are straightforward and limited, meaning that there are no potential complications to confuse Plaintiff. The Court overrules the demurrer.

Motion to Strike

Any party is entitled to amend their pleadings once without leave of Court or stipulation; here, Cruz filed a second amended answer without either of the requirements. Cruz does not contest it was filed by either stipulation or leave of Court. The Court grants the Motion to Strike.

The Court will not deem the proposed answer filed; this is an inappropriate request that bypasses the standard judicial process for filing additional amended pleadings. Cruz needs to either submit a stipulation or file a Motion for Leave to File Amended Answer.

CONCLUSION

Plaintiff Rhoda Lee Levi’s Demurrer Defendant Main Electric Supply, LLC’s Answer is OVERRULED.

Plaintiff Rhoda Lee Levi’s Motion to Strike to Defendant Eduardo De La Cruz’s Answer is GRANTED, without leave to amend, but without prejudice to De La Cruz moving for leave to file an amended Answer.

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.