Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Rose Mary Benvie 

 

RESPONDING PARTY: Defendants Sidney Gale Gathrid and Michele Gathrid 

 

 

BACKGROUND 

 

This dispute arises from a car accident.  Defendant Sidney Gale Gathrid rear-ended Plaintiff Rose Mary Benvie.  Plaintiff alleges Defendant was traveling at an unsafe speed, failed to maintain a safe stopping distance and was inattentive to road conditions.  Defendant Michele Gathrid owns the car that Sidney Gale Gathrid was driving (collectively “Defendants”).    

The operative complaint alleges claims for negligence and negligent entrustment.   

The answer to the complaint contains a general denial and alleges nine affirmative defenses: (1) comparative negligence of Plaintiff, (2) comparative negligence of others, (3) failure to state a claim, (4) statute of limitations, (5) assumption of risk, (6) mitigation, (7) limitation to special damages permitted by Civ. Code § 3333.4 as Plaintiff was uninsured, (8) Plaintiff’s negligence, and (9) reservation of rights to assert additional affirmative defenses.  

This hearing is on Plaintiff’s demurrer to Defendants’ answer.  Plaintiff demurs to the answer on the grounds that the first, second, fourth, fifth, sixth, seventh and eighth affirmative defenses fail to state sufficient ultimate facts or new matters.   

MEET AND CONFER 

As an initial matter, the Court notes that Plaintiff’s meet and confer efforts were insufficient, as Code Civ. Proc. §430.41, subdivision (a), requires meeting and conferring “in person or by telephone.”  Plaintiff simply sent an e-mail, thereby frustrating the purpose of the meet and confer requirement, which is to determine whether the parties can reach an agreement as to the issues raised in the demurrer.  However, pursuant to Code Civ. Proc. § 430.41(a)(4), “A determination by the court that the¿meet¿and confer process was insufficient shall not be grounds to overrule or sustain the¿demurrer.”  The Court will therefore consider the merits of Plaintiff’s demurrer, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion.     

LEGAL STANDARD 

Plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc., §430.20.)  Under Code Civ. Proc. §431.30, subdivision (g), every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”  Legal conclusions are insufficient, and an answer must allege “facts averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)  Under Code Civ. Proc. §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.  Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as new matter.”  (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)   

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 via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Plaintiff demurs to seven of nine affirmative defenses on the ground they consist only of legal conclusions, and it is unclear how they relate to Plaintiffs’ claims as no new matters or ultimate facts are pled in the Answer for these defenses.  The Court agrees as to all but two of these affirmative defenses.   

Absent the pleading of new matters, it is not clear how the defenses at issue here apply to each cause of action in the Complaint.  The defenses are 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 are alleged in the complaint.”  (FPI Development, 231 Cal.App.3d at 384.)   

For example, on their first affirmative defense, Defendants claim Plaintiff’s own negligence proximately contributed to Plaintiff’s injuries and/or damages but Defendants do not explain how Plaintiff’s actions contributed to the rear-end collision.  For their second affirmative defense, Defendants claim Plaintiff’s damages were caused by the negligence, carelessness or fault of others, but Defendants do not identify the “others,” what actions they took, or how their actions caused Plaintiff’s damages.  On their fourth affirmative defense, Defendants assert the claims are barred by statute of limitations but Defendants do not cite to any statute or identify the applicable limitations period.  On their fifth affirmative defense, Defendants allege Plaintiff assumed the risk, but Defendants fail to specify how Plaintiff assumed the risk of a rear end collision.  For their sixth affirmative defense, Defendants allege that Plaintiff failed to mitigate her damages, but again, there is no explanation as to how Plaintiff could have or should have mitigated her damages.   

In contrast to the foregoing, the Court concludes Defendants have sufficiently stated their seventh and eighth affirmative defenses.  For their seventh affirmative defense, Defendants assert Plaintiff is limited to those special damages permitted by Civ. Code § 333.4 (Proposition 213) as a result of Plaintiff being uninsured on the date of the car accident.  This affirmative defense is stated with facts, not mere conclusions, and sufficiently puts Plaintiff on notice of the defense.  For their eighth affirmative defense, Defendants allege Plaintiff was negligent because she failed to wear a seat belt, which would have avoided, or made less severe, Plaintiff’s alleged injuries and damages.  Again, this affirmative defense is properly plead and is not in the form of a terse conclusion but provides Plaintiff sufficient notice of what Defendants are contending.   

Defendants argue they should be allowed to assert defenses even if they have no facts to support them at this stage because they may uncover supporting facts in discovery.  In essence, Defendants concede they do not have the facts now to support their affirmative defenses.  Defendants cannot assert defenses with the hope that facts will later be discovered that would support those defenses.  Defendants may always seek leave to amend their answer should they later discover facts to support a new defense.       

Accordingly, Defendants’ first, second, fourth, fifth and sixth affirmative defenses are all subject to demurrer.  However, as there is a reasonable possibility of successful amendment, the Court will sustain the demurrer with leave to amend.  

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Plaintiff’s demurrer to the answer with 20 days’ leave to amend.        

DATED:  October 25, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court