Judge: David A. Rosen, Case: 22GDCV00744, Date: 2023-01-06 Tentative Ruling
Case Number: 22GDCV00744 Hearing Date: January 6, 2023 Dept: E
Hearing Date: 01/06/2023 – 10:00am
Case No. 22GDCV00744
Trial Date: UNSET
Case Name: AE KYUNG CHO
TENTATIVE
RULING – DEMURRER TO ANSWER
Moving Party: Plaintiff, Ae Kyung Cho
Responding Party: Defendants, Midtown Plumbing, Inc.
and Javier Zamarripa Vallez
RELIEF REQUESTED¿
Plaintiff demurs to the answer to the Complaint filed by Defendants. Plaintiff’s
demurrer is based on CCP §430.20(a).
Plaintiff demurs to the first through
nineteenth affirmative defenses in the Defendants’ answer on grounds that each
affirmative defense does not state facts sufficient to constitute a cause of
action.
Procedural
16/21
Day Lapse (CCP §12c and §1005(b):Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok
Opposition and Reply submitted.
BACKGROUND
On
10/24/2022, Plaintiff filed a complaint alleging a cause of action for
negligence against Defendants. Plaintiff alleges that Defendant, Javier Zamarripa
Vallez, was an employee of Defendant Midtown Plumbing, Inc. and Javier
negligently crashed Midtown Plumbing Inc.’s vehicle into Plaintiff’s vehicle.
Defendants
filed an answer on 11/28/2022 asserting a general denial and nineteen
affirmative defenses. Plaintiff now demurs to all nineteen affirmative defenses
in Defendants’ answer for failure to state facts sufficient to constitute a
defense.
LEGAL STANDARD – DEMURRER TO ANSWER
“A party against whom an answer has been filed may
object, by demurrer as provided in Section 430.30, to the answer upon any one
or more of the following grounds: (a) The answer does not state facts
sufficient to constitute a defense. (b) The answer is uncertain. As used in
this subdivision, “uncertain” includes ambiguous and unintelligible.” (CCP
§430.20(a)-(b).)
“The answer to a complaint shall contain: (1) The
general or specific denial of the material allegations of the complaint
controverted by the defendant. (2) A statement of any new matter constituting a
defense.”
In Walsh, the Court of Appeal explained the
difference between denials and affirmative defenses:
In State
Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d
721 [279 Cal.Rptr. 116], the court explicated the difference between denials
(also known as traverses) and affirmative defenses (also known as new matters).
The court stated, “Under Code of Civil Procedure section 431.30,
subdivision (b)(2), the answer to a complaint must include '[a] statement of
any new matter constituting a defense.' The phrase 'new matter' refers to
something relied on by a defendant which is not put in issue by the
plaintiff. [Citation.] Thus, where matters are not responsive to essential
allegations of the complaint, they must be raised in the answer as 'new
matter.' [Citation.] 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 traverse. [Citation.]” (Id. at
p. 725, italics added.)
An even clearer
explanation of the difference between denials and affirmative defenses was set
forth 70 years ago by Professor Pomeroy in his treatise: “ 'Any facts which
tend to disprove some one of these allegations may be given in evidence under
the denial; any fact which does not thus directly tend to disprove some one or
more of these allegations cannot be given in evidence under the denial. It
follows, that if such fact is in itself a defense, or, in combination with
others, aids in establishing a defense, this defense must be based upon the
assumption, that, so far as it is concerned, all the material allegations made
by the plaintiff are either admitted or proven to be true. The facts which
constitute or aid in constituting such a defense are ”new matter “ .... The new
matter of the codes admits that all the material allegations of the complaint
or petition are true, and consists of facts not alleged therein which destroy
the right of action, and defeat a recovery. To sum up these conclusions, ... [a]ll
facts which directly tend to disprove any one or more of these averments may be
offered under the general denial: all facts which do not thus directly tend to
disprove some one or more of these averments, but tend to establish a defense
independently of them, cannot be offered under the denial; they are new matter,
and must be specially pleaded.' ” (FPI Development, Inc. v. Nakashima, supra,
231 Cal.App.3d at p. 383, fn. 4, quoting Pomeroy, Code Remedies (5th ed.
1929) § 549, pp. 900-901, original italics omitted, italics added.)
(Walsh v. West
Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546.)
“Generally speaking, the determination whether an
answer states a defense is governed by the same principles which are applicable
in determining if a complaint states a cause of action.” (South Shore Land
Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) In the case of a demurrer
to the answer, as distinguished from a demurrer to the complaint, the defect in
question need not appear on the face of the answer. (South Shore Land Co. v.
Petersen (1964) 226 Cal.App.2d 725, 733.) 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. (Id.)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. (Id.) Another rule, particularly
applicable to the case of a demurrer to the answer, is that each so-called defense
must be considered separately without regard to any other defense. (Id.)
Accordingly, a separately stated defense or counterclaim which is sufficient in
form and substance when viewed in isolation does not become insufficient when,
upon looking at the answer as a whole, that defense or counterclaim appears
inconsistent with or repugnant to other parts of the answer. (Id.)
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. (See FPI Development, Inc. v. Nakashimi
(1991) 231 Cal.App.3d 367, 384.)
ANALYSIS
Procedural
“A
party who has filed a complaint or cross-complaint may, within 10 days after
service of the answer to his pleading, demur to the answer.” (CCP §430.40(b).)
Here, the answer was filed on 11/28/2022. The instant
demurrer was filed and served by email on December 8, 2022. Opposition does not
dispute the timeliness of the demurrer to the answer.
Meet and Confer
“Before
filing a demurrer pursuant to this chapter, the demurring party shall meet and
confer in person or by telephone with the party who filed the pleading that is
subject to demurrer for the purpose of determining whether an agreement can be
reached that would resolve the objections to be raised in the demurrer. If an
amended complaint, cross-complaint, or answer is filed, the responding party
shall meet and confer again with the party who filed the amended pleading
before filing a demurrer to the amended pleading.” (CCP §430.41(a).)
Here, moving party alleges it met and conferred.
(Decl. Nazdjanova ¶¶3-4.)
FIRST AFFIRMATIVE DEFENSE
Defendants
title their first affirmative defense as “No Cause of Action,” and answer with,
“Defendants alleges that the Complaint, and each and every purported cause of action
against her contained therein, fails to state facts sufficient to constitute a
cause of action against them.” (Defs.’ Answer p.2.)
Moving party argues that Defendants offer no facts as
to what elements or supporting facts Plaintiff failed to state in the
Complaint; therefore, this factually devoid defense is insufficient.
In Opposition, Defendants don’t argue with respect to
this specific affirmative defense, but argue generally with respect to the
requirements for an answer. [The Court notes that Defendants’ Opposition only
specifically addressed the second,
sixth, fifth, tenth, eleventh, thirteenth, and fourteenth affirmative
defenses. As to the affirmative defenses that were not specifically addressed,
the Opposition addressed generally with respect to the requirements of an
answer.] Defendants argue that Plaintiff misunderstands the difference between
ultimate facts and evidentiary facts. Defendants argue that a defendant need
not set forth evidentiary facts in raising its defenses rather it need only set
forth ultimate facts, which Defendants have done.
Additionally, in Opposition, Defendants cite to
Footnote 4 in Burke. Defendants argue that Burke supports their
argument that “Evidentiary facts, however, are not required (or appropriate) in
an answer. The law is clear that only ultimate fats are to be pled.” (Oppo.
p.4.)
TENTATIVE RULING – FIRST AFFIRMATIVE
DEFENSE
As
a preliminary matter, footnote 4 in Burke states as follows:
Petitioners'
necessary allegation that a successful defense of the action on the promissory
note was the only way to discharge the attachment is an example of the type of
conclusory allegation frequently permitted in California as an exception to the
general rule that a complaint must contain only allegations of ultimate facts
as opposed to allegations of evidentiary facts or of legal conclusions or
arguments. (E.g., Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149,
154—156, 157 P.2d 1 (plaintiff may allege negligence in general, i.e.,
conclusory, terms); see generally, 2 Witkin, Cal.Procedure (1954) pp.
1139—1140.) Thus, although impermissible conclusory allegations need not be
answered and are not put at issue by a general denial (see 2 Witkin, Supra, at
p. 1510), petitioners' allegation required a response, and the bonding
company's general denial technically put this allegation at issue.
(Compare Code Civ.Proc. s 437, with Williamson v.
Clapper, 88 Cal.App.2d 645, 647, 199 P.2d 337.)
(Burke v
Superior Court of Sacramento County (1969) 71 Cal.2d 276, 279, fn. 4.)
Here, it is not clear to the Court as to
why Burke is relevant or how it is on point to support Defendants’
argument that the demurrer should be overruled.
Defendants’ first affirmative defense does
not assert new matter and Plaintiff’s burden of proof remains the same regardless of whether this defense is
stated in the answer. Therefore, the demurrer to the First Affirmative Defense
is SUSTAINED WITHOUT LEAVE TO AMEND.
SECOND AFFIRMATIVE DEFENSE
Defendants title their second affirmative defense as
“No Damages,” and answer with, “Defendants allege that Plaintiff has sustained
no injury, damage or loss by reason of any act, omission or negligence on their
part.”
In Opposition, Defendants argue that this is an appropriate
defense because it raises a new matter, asserts ultimate facts, and could
potentially eliminate liability or at least reduce damages. Opposition argues
that the evidentiary facts which may support this defense are often learned
during the discovery process.
TENTATIVE RULING – SECOND AFFIRMATIVE
DEFENSE
Demurrer
as to the second affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND. The
second affirmative defense does not assert new matter, it simply denies damages/injury
occurred to the Plaintiff. Defendants already generally and specifically denied
each and every allegation of the complaint in its “General Denial” section of
the answer.
THIRD AFFIRMATIVE DEFENSE
Defendants
title their third affirmative defense as “Independent, Intervening or
Superseding Cause,” and answer with, “Without admitting that Plaintiff suffered
any damages whatsoever, Defendants allege that the injuries or damages alleged
by her, if any, were the result of new, independent, intervening or superseding
causes that are unrelated to any conduct of Defendants and, as a result, any
conduct by Defendants was not the proximate or producing cause of any alleged
injuries or damages Plaintiff claims to have suffered.”
TENTATIVE RULING – THIRD AFFIRMATIVE
DEFENSE
Defendants
appear to be asserting new matter; however, Defendants simply answer in a conclusory
fashion that any injuries or damages were the result of an
independent/superseding cause without stating any facts to support their
defense. Demurrer as to the third cause of action is SUSTAINED WITH 20 DAY’S LEAVE
TO AMEND GRANTED.
FOURTH AFFIRMATIVE DEFENSE
Defendants
title their fourth affirmative defense as “Justifiable Conduct/No Intent/Bona
Fide Qualifications,” and answer with, “Defendants allege that, with
respect to the matters alleged in the Complaint, and each and every cause of
action contained therein, they did not engage in any conduct relating to or
regarding Plaintiff that was unlawful or motivated by an intent to injure or
damage her, and any and each of their decisions relevant to the underlying
facts of this matter was justified and based on proper exercise of judgment or
other bona fide reasons. Furthermore, their conduct did not arise out of any
improper or unlawful practice.”
TENTATIVE RULING FOURTH AFFIRMATIVE
DEFENSE
Here,
the Court is unclear what affirmative defense Defendants are even attempting to
assert, and how this alleged affirmative defense is even relevant to a
negligence cause of action. Further, the Court is unclear as to what new matter
this affirmative defense is trying to assert. Demurrer to the fourth cause of
action is SUSTAINED WITH 20 DAY’S LEAVE TO AMEND GRANTED.
FIFTH AFFIRMATIVE DEFENSE
Defendants
title their fifth affirmative defense as “Comparative Fault” and answer with, “Defendants
alleges that, if Plaintiff suffered any injury or damage (and they deny she
suffered any), the injury or damage was proximately caused, in whole or in
part, by the acts and/or omissions of persons and/or entities other than
Defendants, including the acts and omissions of Plaintiff herself. Accordingly,
Defendants are entitled to an allocation of any and all non-economic damages
pursuant to California Civil Code section 1431.2.”
Opposition argues that Plaintiff’s contention that
Defendants are required to detail Plaintiff’s actions is misplaced. Opposition
argues that “Defendants need not plead detailed, evidentiary facts to support
their defenses, as ultimate facts such as those pled, are sufficient.” [Defendants
cite no case law for this argument.] Defendants also state, “In addition, since
these defenses are based on the acts and conduct of Plaintiff, which are
certainly within her scope of knowledge, pleading specific evidentiary facts
are not required at this stage. (Ching Ye v. Dy Foon (1956) 143 Cal.App.2d 129,
136, disapproved on other grounds in Shahinian
v. McCormick (1963) 59 Cal. 2d 554, [holding it is unnecessary to set forth
evidentiary facts supporting each element when the ultimate fact implies those
elements and where the facts where presumptively within the knowledge of the
demurring party]).” (Oppo. p.7.)
TENTATIVE RULING FIFTH AFFIRMATIVE DEFENSE
Defendants
have pled this affirmative defense sufficiently. Demurrer to this affirmative defense is
OVERRULED.
SIXTH AFFIRMATIVE DEFENSE
Defendants title their sixth affirmative defense as “Failure to Mitigate,”
and answer with, “Defendants allege that, if Plaintiff suffered any damages,
any damages otherwise recoverable are barred and/or limited by Plaintiff’s
failure to exercise reasonable diligence in attempting to mitigate her claimed
damages.”
Opposition argues that this affirmative defense is a
new matter and must be pled as an affirmative defense in Defendants’ answer.
Defendants cite Erler v. Five Points Motors, Inc. (1967) 249 Cal.App.2d 560,
568. Opposition argues that this defense clearly sets forth the ultimate fact
that Defendants aver Plaintiff’s recovery is reduced by reason of her failure
to exercise reasonable diligence to mitigate her alleged damages. Opposition
argues that at this juncture, Defendants are not required to plead evidentiary
facts to support this defense since no discovery was conducted, or could have
been conducted, by Defendants prior to timely submitting their answer.
In Reply, Plaintiff argues:
“For decades now,
C.C.P. § 128.7(b) has required that affirmative defenses have evidentiary support
(or, if specifically so identified, are likely to have evidentiary support
after a reasonable opportunity for further discovery). In other words.
defendants may allege only defenses for which evidence exists. If a defendant
later uncovers facts to support an unalleged affirmative defense, its remedy is
to seek to amend its answer. In doing so, defendants may rely on California's
general policy of liberally granting leave to amend pleadings. See. e.g. ,
Nestle v. Citv of Santa Monica, 6 Cal.3d 920, 939 ( 1972).”
(Pl. Reply. p. 3.)
TENTATIVE RULING SIXTH AFFIRMATIVE DEFENSE
Failure to mitigate is an affirmative defense. See,
Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402,
and Defendants have adequately pled so here.
The Demurrer to the Sixth Affirmative defense is OVERRULED.
SEVENTH AFFIRMATIVE DEFENSE
Defendants
title their seventh affirmative defense, “Good Faith/No Negligent Conduct,” and
answer with, “Defendants allege that the Complaint, and each and every
purported cause of action contained therein, cannot be maintained against them
because, at all relevant times, they acted in accordance with their
responsibilities under all applicable laws and did not engage in any negligent
conduct with respect to Plaintiff.”
TENTATIVE RULING – SEVENTH AFFIRMATIVE
DEFENSE
Demurrer
as to the seventh affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND. The
seventh affirmative defense does not assert new matter, it simply denies that
negligence occurred. Defendants already generally and specifically denied each
and every allegation of the complaint in its “General Denial” section of the
answer.
EIGHTH AFFIRMATIVE DEFENSE
Defendants
title their eighth affirmative defense as “Causation,” and answer with, “Defendants
allege that no causal connection exists between any purported claims of injury
or damage allegedly suffered by Plaintiff and any action of Defendants.”
TENTATIVE RULING – EIGHTH AFFIRMATIVE
DEFENSE
Demurrer
as to the eighth affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND. The
eighth affirmative defense does not assert new matter, it simply denies the
causation of a negligence cause of action. Defendants already generally and
specifically denied each and every allegation of the complaint in its “General
Denial” section of the answer.
NINTH AFFIRMATIVE DEFENSE
Defendants
title their ninth affirmative defense as “Exercise of Reasonable Care,” and
answer with, “Defendants allege that they exercised reasonable care to prevent
and any purportedly unlawful or avoidable conduct with regard to Plaintiff.
Accordingly, any and all claims for damages by Plaintiff are barred.”
TENTATIVE RULING NINTH AFFIRMATIVE DEFENSE
Demurrer
as to the ninth affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND. The
ninth affirmative defense does not assert new matter. It appears as if the
ninth affirmative defense is just denying the “breach” element of a negligence
cause of action. Defendants already generally and specifically denied each and
every allegation of the complaint in its “General Denial” section of the
answer.
TENTH AFFIRMATIVE DEFENSE
Defendants
title their tenth affirmative defense, “Failure to Exercise Reasonable Care,”
and answer with, “Defendants allege that Plaintiff failed to exercise
reasonable care for her own protection against the type of damages and
incidents alleged to have occurred in her Complaint, if any, which damages and
incidents are denied by these Defendants. If any such damage has occurred, it
was proximately and legally caused in some proportion, up to and including the
whole thereof, by the negligence of Plaintiff, and therefore an award against
Defendants, if any, must be reduced according to law and according to the principles
of comparative fault.”
Opposition argues that Plaintiff’s contention that
Defendants are required to detail Plaintiff’s actions is misplaced. Opposition
argues that “Defendants need not plead detailed, evidentiary facts to support
their defenses, as ultimate facts such as those pled, are sufficient.”
[Defendants cite no case law for this argument.] Defendants also state, “In
addition, since these defenses are based on the acts and conduct of Plaintiff,
which are certainly within her scope of knowledge, pleading specific
evidentiary facts are not required at this stage. (Ching Ye v. Dy Foon (1956)
143 Cal.App.2d 129, 136 [holding it is unnecessary to set forth evidentiary
facts supporting each element when the ultimate fact implies those elements and
where the facts where presumptively within the knowledge of the demurring
party]).” (Oppo. p.7.)
TENTATIVE RULING TENTH AFFIRMATIVE DEFENSE
Demurrer
to this affirmative defense is OVERRULED.
ELEVENTH AFFIRMATIVE DEFENSE
Defendants
title their eleventh affirmative defense as “Contributory or Comparative
Negligence,” and answer with, “Without admitting that Plaintiff is entitled to
any recovery, Defendants allege that any recovery to which Plaintiff might be
entitled must be reduced by reason of her contributory and/or comparative
negligence.”
Opposition argues that Plaintiff’s contention that
Defendants are required to detail Plaintiff’s actions is misplaced. Opposition
argues that “Defendants need not plead detailed, evidentiary facts to support
their defenses, as ultimate facts such as those pled, are sufficient.”
[Defendants cite no case law for this argument.] Defendants also state, “In
addition, since these defenses are based on the acts and conduct of Plaintiff,
which are certainly within her scope of knowledge, pleading specific
evidentiary facts are not required at this stage. (Ching Ye v. Dy Foon (1956)
143 Cal.App.2d 129, 136 [holding it is unnecessary to set forth evidentiary
facts supporting each element when the ultimate fact implies those elements and
where the facts where presumptively within the knowledge of the demurring
party]).” (Oppo. p.7.)
TENTATIVE RULING ELEVENTH AFFIRMATIVE
DEFENSE
Demurrer
to this 11th affirmative defense is SUSTAINED WITHOUT LEAVE TO
AMEND, as this defense is duplicative of the 5th affirmative
defense.
TWELFTH AFFIRMATIVE DEFENSE
Defendants
title their twelfth affirmative defense, “No Proximate Cause,” and answer with,
“Defendants allege, without admitting any of the allegations of Plaintiff’s Complaint,
that, if they are found liable at the time of trial, then their fault was not
the sole legal or proximate cause of the incidents upon which liability is
based or damages awarded, if any, and accordingly, damages awarded, if any,
must be apportioned according to the respective fault of all parties, persons
or entities or their agents, servants and employees that have contributed to or
caused the alleged incidents or damages at the time of trial.”
TENTATIVE RULING TWELFTH AFFIRMATIVE
DEFENSE
Demurrer
to this affirmative defense is OVERRULED, per CA Civ. Code sec. 1431.2.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendants
title their thirteenth affirmative defense, “Acts of Plaintiff,” and answer
with, “Defendants alleges that Plaintiff failed to exercise reasonable and
ordinary care, caution or prudence and, therefore, any alleged injuries and
damages, if she, in fact, suffered any, were proximately caused and/or
contributed to by her own conduct.”
Opposition argues that Plaintiff’s contention that
Defendants are required to detail Plaintiff’s actions is misplaced. Opposition
argues that “Defendants need not plead detailed, evidentiary facts to support
their defenses, as ultimate facts such as those pled, are sufficient.”
[Defendants cite no case law for this argument.] Defendants also state, “In
addition, since these defenses are based on the acts and conduct of Plaintiff,
which are certainly within her scope of knowledge, pleading specific
evidentiary facts are not required at this stage. (Ching Ye v. Dy Foon (1956)
143 Cal.App.2d 129, 136 [holding it is unnecessary to set forth evidentiary
facts supporting each element when the ultimate fact implies those elements and
where the facts where presumptively within the knowledge of the demurring
party]).” (Oppo. p.7).
TENTATIVE RULING THIRTEENTH AFFIRMATIVE
DEFENSE
Demurrer
to the 13th affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND,
as this defense is duplicative of the 5th affirmative defense.
FOURTEENTH AFFIRMATIVE DEFENSE
Defendants
title their fourteenth affirmative defense, “Reduction in Damages,” and answer
with, “Defendants allege that, if any damages or injuries were, in fact,
suffered by Plaintiff, such damages or injuries must be reduced or diminished
by amounts received or receivable by her in the exercise of reasonable
diligence as income or in lieu of earned income or as benefits.
Opposition argues that Plaintiff’s contention that
Defendants are required to detail Plaintiff’s actions is misplaced. Opposition
argues that “Defendants need not plead detailed, evidentiary facts to support
their defenses, as ultimate facts such as those pled, are sufficient.”
[Defendants cite no case law for this argument.] Defendants also state, “In
addition, since these defenses are based on the acts and conduct of Plaintiff,
which are certainly within her scope of knowledge, pleading specific
evidentiary facts are not required at this stage. (Ching Ye v. Dy Foon (1956)
143 Cal.App.2d 129, 136 [holding it is unnecessary to set forth evidentiary
facts supporting each element when the ultimate fact implies those elements and
where the facts where presumptively within the knowledge of the demurring
party]).” (Oppo. p.7.)
TENTATIVE RULING FOURTEENTH AFFIRMATIVE
DEFENSE
Demurrer
to the 14th affirmative defense is OVERRULED.
FIFTEENTH AFFIRMATIVE DEFENSE
Defendants
title their fifteenth affirmative defense, “No Special Damages,” and answer
with, “Defendants allege that the Complaint, and each and every purported cause
of action contained therein, fails to state with sufficient particularity a
claim for special damages.”
Moving Plaintiffs argue that the fifteenth affirmative
defense is not an affirmative defense, but just a denial and should be stricken
from the Answer.
TENTATIVE RULING FIFTEENTH AFFIRMATIVE
DEFENSE
Demurrer
as to the fifteenth affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND.
SIXTEENTH AFFIRMATIVE DEFENSE
Defendants
title their sixteenth affirmative defense, “Plaintiffs Not Entitled to Costs,”
and answer with, “Defendants allege that Plaintiff has failed to state facts
sufficient to entitle her to the costs of suit incurred herein.”
TENTATIVE RULING SIXTEENTH AFFIRMATIVE
DEFENSE
Demurrer
as to the sixteenth affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND.
SEVENTEENTH AFFIRMATIVE DEFENSE
Defendants
title their seventeenth affirmative defense, “Several Liability,” and answer
with, “Defendants allege that their liability for Plaintiff’s damages, if any,
is several only and not joint pursuant to California Civil Code section 1431.2.”
TENTATIVE RULING SEVENTEENTH AFFIRMATIVE
DEFENSE
SUSTAINED
WITH 20 DAY’S LEAVE TO AMEND, as this defense, as pled, is a misstatement of
the law.
EIGHTEENTH AFFIRAMTIVE DEFENSE
Defendants
title their eighteenth affirmative defense, “Speculative Damages,” and answer
with, “Defendants allege that Plaintiff is barred from recovery because her
claims are uncertain and damages are speculative and not readily
ascertainable.”
TENTATIVE RULING EIGTEENTH AFFIRAMTIVE
DEFENSE
Demurrer
to this Affirmative Defense is SUSTAINED WITHOUT LEAVE TO AMEND.
NINETEENTH AFFIRMATIVE DEFENSE
Defendants
title their nineteenth affirmative defense, “Additional Affirmative Defense,”
and answer with, “Defendants allege that they do not presently know all the
facts concerning Plaintiff’s conduct sufficient to state all affirmative
defenses at this time and reserves the right to seek leave to amend this Answer
should they discover facts to support additional affirmative defenses.”
TENTATIVE RULING NINETEENTH AFFIRMATIVE
DEFENSE
Demurrer
to the 19th affirmative defense is SUSTAINED WITHOUT LEAVE TO AMEND.