Judge: Frank M. Tavelman, Case: 24NNCV01246, Date: 2024-10-17 Tentative Ruling

Case Number: 24NNCV01246    Hearing Date: October 17, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER TO ANSWER

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Christoff Antoun (Plaintiff) brings this action against Kelsey Carter (Defendant). Plaintiff alleges that his vehicle was struck from behind by Defendant’s vehicle while Plaintiff was stopped at a red light. Plaintiff further alleges that he sustained injuries as the result of Defendant’s negligent operation of her own vehicle. Plaintiff’s Complaint presents causes of action for (1) Motor Vehicle and (2) General Negligence.

Before the Court is a demurrer to Defendant’s Answer. Plaintiff demurs to Defendant’s first through fifth, seventh, and ninth affirmative defenses. Defendant has filed no opposition. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted. 

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at p. 318.)

A general demurrer may be made on the ground that an answer does not state facts sufficient to constitute a defense. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 880.) The answer to a complaint must contain the “general or specific denial of the material allegations of the complaint controverted by the defendant” and a “statement of any new matter constituting a defense.”  (C.C.P. § 431.30(b)(1) & (2).)  

The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading a complaint. 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. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) Defenses must be pleaded in the nature of “yes, the allegations [of the complaint] are true, but . . .”  (Id. at 383.) 

II.                 MERITS

Meet and Confer

C.C.P. § 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review the Court finds the meet and confer requirements were met. (Perez Decl. ¶ 4.)

First Affirmative Defense – Sustained with Leave to Amend

Defendant’s first affirmative defense is as follows:

At the time and place of the accident referred to and alleged in plaintiff's Complaint, the plaintiff, Christoff Antoun, did so negligently and carelessly entrust, manage, operate, control and drive said motor vehicle so as to proximately cause and contribute to the accident and resulting injuries and damages, if any.

Plaintiff argues that Defendant does not sufficiently allege facts in support of this affirmative defense. The Court finds this argument persuasive.

Generally, a defendant bears the burden of proving “new matter,” which must be specifically pleaded in the answer. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.” (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546.) Where the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not new matter but are denials. (Id.)

Here, Defendant’s affirmative defense alleges that Plaintiff was in some way contributorily negligent. As Plaintiff’s Complaint contains no facts speaking to his own negligence, Defendant’s affirmative defense necessarily qualifies as new matter. As stated above, such new matter must be supported by sufficient facts, just like a cause of action in a Complaint. Affirmative defenses consisting only of legal conclusions are subject to demurrer. (FPI supra, 231 Cal.App.3d at 384 [holding that affirmative defenses "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 and are alleged in the complaint" are subject to demurrer.] [internal quotation marks omitted].) Here, Defendant’s affirmative defense of contributory negligence is supported only by a short conclusory statement.

Accordingly, the demurrer to this is SUSTAINED with 20 days leave to amend. Leave to amend is granted as the Court finds it possible that additional facts upon amendment could cure this deficiency.

Second Affirmative Defense – Sustained with Leave to Amend

Defendant’s second affirmative defense reads as follows:

This answering defendant(s) alleges that the accident, and any or all injuries and/or damages caused therefrom, were due to the negligence of plaintiff and persons other than this answering defendant(s).

Plaintiff argues that this affirmative defense also suffers from a lack of any factual allegation in support. The Court agrees. Defendant’s second affirmative dense again asserts Plaintiff’s contributory negligence with no facts pled in support. Further, the defense states that Plaintiff’s injuries were attributable to “persons other than this answering defendant” but makes no aversion to who these persons are or how they contributed to Plaintiff’s injuries.

Accordingly, the demurrer to this affirmative defense is SUSTAINED with 20 days’ leave to amend.  

Third Affirmative Defense – Sustained without Leave to Amend

Defendant’s third affirmative defense reads:

Plaintiff's complaint, and each cause of action thereof, fails to state sufficient facts to constitute a cause of action against this answering defendant(s).

Plaintiff argues that this affirmative defense is procedurally improper because it essentially functions as a demurrer under C.C.P. § 430.10(e). Plaintiff argues that Defendant must choose between filing a demurrer and an answer. The Court agrees, though the procedural rationale requires some clarification.

C.C.P. § 430.10 authorizes a responding party to object to a complaint either through demurrer or an answer. C.C.P. § 430.10(e) establishes that a party may object to a pleading on grounds that it fails to state sufficient facts. C.C.P. § 430.30 serves as the section which distinguishes when objections are properly addressed in an answer as opposed to a demurrer. Where a responding party’s objections appear on the face of the complaint, such objections are to be taken by a demurrer. (C.C.P. § 430.30(a).) When the responding party’s objections do not appear on the face of the pleading, they are to be taken by answer. (C.C.P. § 430.30(b).)

Here, Defendant’s objection on grounds that Plaintiff’s Complaint fails to state sufficient facts is one that must necessarily appear on the face of the Complaint. C.C.P. § 430.30 makes clear that such objections are to be presented on demurrer, not in an answer. Plaintiff is correct that Defendant cannot assert this objection in her answer, but it is not because an answer and a demurrer are always mutually exclusive. C.C.P. §430.30(c). Situations exist in which the simultaneous filing of an Answer and Demurrer are appropriate, but no authority authorizes the use of this defense.  

Accordingly, the demurrer to this affirmative defense is SUSTAINED without leave to amend. Leave to amend is denied as no amendment would render this affirmative defense proper under C.C.P. § 430.30.

Fourth Affirmative Defense – Sustained with Leave to Amend

Defendant’s fourth affirmative defense is as follows:

Plaintiff's complaint, and each cause of action thereof, is barred by the Statute of Limitations since the events alleged causing personal injuries to the plaintiff, occurred more than two (2) year prior to the filing of said complaint, and said complaint was not filed within two (2) year of the occurrence of said event as is required by Statute.

Plaintiff argues that this defense does not adhere to the procedure for pleading a defense of statute of limitations established by C.C.P. § 458.

In pleading the statute of limitations, “it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section _____(giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure.” (C.C.P. § 458.) “There are two ways to properly plead a statute of limitations: (1) allege facts showing that the action is barred and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision.” (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91, citing Brown v. World Church (1969) 272 Cal.App.2d 684, 691.)

Here, Defendant has neither alleged facts regarding the statute of limitations nor cited to the relevant code sections.

Accordingly, the demurrer to this affirmative defense is SUSTAINED with 20 days’ leave to amend.

Fifth Affirmative Defense – Sustained with Leave to Amend

Defendant’s fifth affirmative defense reads as follows:

This answering defendant(s) alleges that if plaintiff was injured and/or damaged, as set forth in plaintiff's complaint, or in any other way, sum or manner, or at all, then said injuries and/or damages, and the whole thereof, proximately and concurrently resulted from and were caused, in whole or in part, by plaintiff's failure to exercise ordinary care for the protection of his person and/or property at the time and place mentioned in plaintiff's complaint.

Plaintiff contends that Defendant has alleged insufficient facts as to this affirmative defense. The Court agrees. Defendant’s fifth affirmative defense is almost indistinguishable from her first affirmative defense alleging contributory negligence. The Court does not see how Plaintiff’s injuries in a motor vehicle incident could result from any negligence other than the negligent operation of a motor vehicle, which is the gravamen of Defendant’s first affirmative defense. Regardless, Defendant has pled no facts to support her allegations that Plaintiff was negligent, either in the operation of his vehicle or otherwise.

Accordingly, the demurrer to this affirmative defense is SUSTAINED with 20 days’ leave to amend.

Seventh Affirmative Defense – Sustained without Leave to Amend

Defendant’s seventh affirmative defense reads as follows:

Plaintiff’s claims are barred in whole, or in part, by the doctrine of Accord and Satisfaction.

As with the previous affirmative defenses, Plaintiff argues that Defendant fails to state sufficient facts as to the defense of Accord and Satisfaction. The Court agrees.

“An accord and satisfaction is the substitution of a new agreement for and in satisfaction of a preexisting agreement between the same parties. The usual purpose is to settle a claim at a lesser amount. The elements of an accord and satisfaction are: (1) a bona fide dispute between the parties, (2) the debtor sends a certain sum on the express condition that acceptance of it will constitute full payment, and (3) the creditor so understands the transaction and accepts the sum.” (In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058.)

Here, Plaintiff’s action is based in common law negligence, not contract. Defendant has alleged no facts in her answer which would indicate that the doctrine of Accord and Satisfaction is even applicable to this action. Nor does the Court find it reasonably possible that she could do so upon amendment.

Accordingly, the demurrer to this affirmative defense is SUSTAINED without leave to amend.

Ninth Affirmative Defense- Sustained with Leave to Amend

Defenant’s ninth affirmative defense reads as follows:

This answering defendant(s) alleges that plaintiff was capable of and failed to mitigate damages. Therefore, any amount awarded to plaintiff for damages suffered should be reduced by that amount which plaintiff would have avoided by taking reasonable steps to do so.

Plaintiff argues that this affirmative defense is also unsupported by any factual allegations. The Court agrees. Defendant’s affirmative defense provides no factual allegations as to how Plaintiff failed to mitigate his damages. In its current state, Defendant’s Answer reveals no grounds for why she would claim that Plaintiff could have, and thereafter failed to, mitigate his damages.

Accordingly, the demurrer to this affirmative defense is SUSTAINED with 20 days’ leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Christoff Antoun’s Demurrer came on regularly for hearing on October 17, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FIRST, SECOND, FOURTH, FIFTH, AND NINTH AFFIRMATIVE DEFENSES IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE DEMURRER TO THE THIRD AND FIFTH AFFIRMATIVE DEFENSES IS SUSTAINED WITHOUT LEAVE TO AMEND.

PLAINTIFF TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  October 17, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles