Judge: Douglas W. Stern, Case: 23STCV12497, Date: 2023-10-13 Tentative Ruling

Case Number: 23STCV12497    Hearing Date: October 13, 2023    Dept: 68

Demurrer to Answer with Motion to Strike

Dwain Lammey vs. GG LA Figueroa, LLC, et al., 23STCV12497

Moving Party: Plaintiff Dwain Lammey

Background

            Plaintiff Dwain Lammey (Plaintiff) is alleging in his complaint that a Cold Stone Creamery did not provide ADA compliant countertops and tables. Plaintiff has a spinal injury and uses a wheelchair for mobility. He alleges in his complaint that he encountered barriers to access at the Cold Stone Creamery.

            Defendant GG LA Figueroa, LLC, (Defendant) is the owner of the property where the Cold Stone Creamery is located. In its answer, Defendant responded to several of the allegations by stating that it does not have sufficient knowledge or information to form a belief as to the truthfulness of the allegations regarding Plaintiff’s visit to Cold Stone Creamery. Defendant has included eleven affirmative defenses in its answer.

            Plaintiff demurs to Defendant’s affirmative defenses on the basis that the affirmative defenses do not state facts sufficient to constitute the defenses that Plaintiff is alleging. Further, Plaintiff has moved to strike paragraphs 1-7; 10-13; 16; 20-23; 27-28; 29-47; 50; and 54 of Defendant’s answer. Plaintiff’s motion to strike is on the basis that Defendant’s answers are boilerplate answers that do not meaningfully address the allegations of the complaint.

            In its opposition, Defendant argues that it if does not have sufficient information or belief to answer an allegation, then it may deny the allegations on that basis pursuant to CCP § 431.10(e). Further, Defendant argues that it does not have to prove its affirmative defenses at this stage of the proceedings.

            No reply has been filed.

Analysis

            Demurrer

            Plaintiff demurs to Defendant’s affirmative defenses on the basis that they do not state facts sufficient to constitute those defenses.

Affirmative defenses must be separately stated and refer to the causes of action which they are intended to answer. (CCP § 431.30(g).) Just as a defendant may demur to a complaint, a plaintiff may demur to an answer, in whole or in part. (Timberidge Enterps., Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879; CCP § 430.50(b). A demurrer may be premised on a failure to plead sufficient facts or uncertainty. (CCP § 430.20(a)-(b).) Affirmative defenses are “new matters” as contemplated by CCP § 431.30(b), and these claims must be specifically pleaded in the answer. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.)

            Defendant appears to misstate the standard for demurrer in its opposition. While Defendant is not required to prove its affirmative defenses in its answer, it must still plead facts sufficient to constitute the defense. The one sentence affirmative defenses that Defendant has pled in its answers are not factually sufficient to constitute those defenses.

            Plaintiff’s demurrer to Defendant’s affirmative defenses is sustained with leave to amend.

            Motion to Strike

            Plaintiff has moved to strike several paragraphs from Defendant’s answer on the basis that they are not procedurally proper.

            CCP § 431.10(e) provides that “if the defendant has no information or belief upon the subject sufficient to enable him or her to answer an allegation of the complaint, he or she may so state in her or her answer and place his or her denial on that ground.” The paragraphs in the answer to which Plaintiff objects are the ones that Defendant answered in this manner. Defendant’s answers are procedurally proper pursuant to CCP § 431.10(e).

            Plaintiff’s motion to strike is denied.

Order

1.      Plaintiff’s demurrer to Defendant’s affirmative defenses is sustained. Defendant is given 20 days leave to amend its answer.

2.      Plaintiff’s motion to strike is denied.