Judge: Gail Killefer, Case: 22STCV12319, Date: 2022-08-09 Tentative Ruling
Case Number: 22STCV12319 Hearing Date: August 9, 2022 Dept: 37
HEARING DATE: August 9, 2022
CASE NUMBER: 22STCV12319
CASE NAME: Victor Herrera v. Birrieria Estrada, et al.
MOVING PARTY: Defendant and Cross-Complainant Theo
Swerissen Management, a California corporation
OPPOSING PARTIES: Plaintiffs and Cross-Defendants, Anne
Karoliny Santos Downing, James E. Downing Jr., and Karol Santos, Inc.
TRIAL DATE: Not Set.
PROOF OF SERVICE: OK
MOTION: Defendant’s Demurrer to Plaintiffs’
Answer to the Cross-Complaint
OPPOSITION: None as of August 8, 2022
REPLY: No opposition filed.
TENTATIVE: Plaintiff’s demurrer is granted. Defendants
are granted 20 days leave to file an amended answer. Plaintiff is to give
notice.
Background
This action arises out of Victor Herrera’s (“Plaintiff” or “Herrera”)
employment with Birriera Estrada(s), Michael Estrada, and Helen Jimenez
(“Defendants”). Plaintiff alleges he worked for Defendants at their 2627 Durfee
Ave, El Monte California, 91732 location preparing the food, doing the
inventory, and other tasks. Plaintiff alleges several labor code violations,
namely that Defendants failed to provide meal and rest breaks, failed to pay
overtime wages, failed to provide wage statements, etc. Plaintiff alleges he
worked for Defendants for approximately 26 weeks from June 2021 to December
2021.
Plaintiff’s Complaint alleges causes of action for (1) failure
to pay overtime; (2) failure to provide meal periods; (3) failure to provide
rest periods; (4) failure to pay all wages at time of discharge; (5) failure to
provide accurate itemized statements; (6) unfair competition; (7) violation of
Labor Code §§432, 1198.5; and (8) violation of Labor Code § 226.
On May 31, 2022, Defendant Michael Estrada DBA Birrieria
Estradas filed an Answer (“Answer”) to Plaintiff’s Complaint, which included 30
Affirmative Defenses.
Plaintiff now demurs to Affirmative Defenses 5-8, 10-11,
13-16, 19-20, 22, 25-28, and 30 of the Answer. The motion is unopposed.
DEMURRER
I.
Meet and Confer Efforts
Plaintiff submits the declaration of his attorney, Antonio J. Gonzalez (“Gonzalez”)
to demonstrate that he has fulfilled the statutory meet and confer obligations
pursuant to CCP § 430.41 prior to filing the instant motion. Gonzalez attests
that prior to filing the demurrer, he attempted several meet and confer
correspondences but Defendant’s counsel did not respond to any communication.
(Gonzalez Decl. ¶¶4-10.)
The Gonzalez Declaration is insufficient for purposes of CCP
§ 430.41, as Gonzalez attests the parties did not meet and confer prior to this
demurrer. However, as failure to meet and confer is not sufficient grounds to
overrule a demurrer, the court continues with the parties’ arguments.
II.
Legal Standard
A party against whom an answer has been filed may object by
demurrer. Unlike a demurrer to a complaint or cross-complaint, a demurrer
to an answer is limited to three grounds:
(a) The
answer does not state facts sufficient to constitute a defense;
(b) The
answer is uncertain; or
(c) Where
the answer pleads a contract, it cannot be ascertained from the answer whether
the contract is written or oral.
(CCP § 430.20.)
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; Code
Civ. Proc. § 430.20.) “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 re Quantification Settlement Agreement Cases (2011) 201
Cal.App.4th 758, 813 (Quantification) [“affirmative defenses
cannot be pled as mere legal conclusions, but must instead be alleged with as
much factual detail as the allegations of a complaint.”].)
Affirmative defenses are pled based upon facts
demonstrating that no cause of action exists, notwithstanding the truth of the
complaint’s allegations. (Walsh v. W. Valley Mission Cmty. College
Dist. (1998) 66 Cal.App.4th 1532, 1542 n.3.) “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. 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.” (State
Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721,
725 (State Farm).)
The same pleading of ultimate facts in support of such
new matter, rather than legal conclusions, is required as in pleading the
complaint. As
a general rule, the answer must allege facts constituting the affirmative
defense in the same manner as a complaint must do for a cause of action. (FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
III.
Analysis
Plaintiff first contends that “Affirmative Defenses Nos. 5 (Comparative
Fault), 15 (Carelessness, Negligence, and/or Fault by Plaintiff), 16 (Consent),
20 (Assumption of Risk), and 30 (No Breach of Duty) are for tort and/or
negligence claims but no such claims are alleged in the Complaint and none of
the causes of action involve a negligence standard,” as “all
eight causes of action are wage & hour and Labor Code violations. None of
the causes of action are tort claims.” (Demurrer, 5-6.) Plaintiff therefore
contends they are unintelligible, vague and ambiguous, in violation of CCP §
430.20(b) and do not identify the targeted cause(s) of action as required by CCP
§ 431.30(g). (Id.) Plaintiff further contends Affirmative Defense 16 of
Consent is a defense to defamation claims, where Plaintiff here has not alleged
any defamation claims. (Id.)
Plaintiff then contends “Affirmative
Defenses Nos. 6 (Waiver), 7 (Estoppel), 11 (Unclean Hands), and 14 (Estoppel by
Silence or Acquiescence) are equitable defenses which require particularity in
pleading, but no facts are pled in the Answer,” citing CCP § 430.20(a).
(Demurrer, 6; citing Meyer Koulish Co. v. Cannon, 213 Cal.App.2d 419,
432 (1963) Aetna Cas. & Sur. Co. v. Richmond, 76 Cal.App.3d 645, 653
(1977); Ins. Co. of the W. v. Haralambos Beverage Co., 195 Cal.App.3d
1308, 1320 (1987).) Plaintiff further points out that waiver and estoppel
require specificity in their pleading, where Defendant here has not identified
the targeted cause(s) of action and simply assert “[b]oilerplate legal conclusions.”
(Id.) Plaintiff also contends the Affirmative Defense No. 22 (Fraud)
requires particularity but no facts are pled in the Answer and no causes of
action are identified. (Demurrer, 7.) While Plaintiff’s reliance on FPI
Development Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 383 is misplaced,
as FPI considered whether
affirmative defenses were sufficiently pled in the context of a motion for
summary judgment, Plaintiff contends there are no facts
alleged to support a defense of fraud. (Id.)
Plaintiff also contends Affirmative Defenses
Nos. 8 (Release and Discharge), 10 (Statute of Frauds), 13 (Breach of
Contract), 19 (Failure of Performance), 26 (Condition Precedent), and 27 (Force
Majeur [sic]) are defenses to contract claims where no contract claims
have been alleged by Plaintiff. (Demurrer, 6-7.)
Lastly, Plaintiff contends
Affirmative Defenses Nos. 25 and 28 (28 is a duplicate of 25) for “Failure to
Exhaust Administrative Remedies” are not applicable to this matter as “none of
the causes of action require exhaustion of administrative remedies.” (Demurrer,
7-8.) “Defendants allege no facts to support
the defense of exhaustion of administrative remedies would bar Plaintiff’s
claims. Defendants do not allege to which of Plaintiff’s causes of action those
purported administrative remedies apply.” (Demurrer, 8.)
The court has reviewed the
Answer to Plaintiff’s Complaint. Based on this review, the court agrees with Plaintiff.
The aforementioned affirmative defenses consist of legal conclusions without
supporting facts. For example, several affirmative defenses merely say that the
affirmative defense “is” “fraud,” “negligence,” “estoppel” and “waiver” without
any other facts demonstrating why these affirmative defenses apply. Thus, Defendant’s
affirmative defenses are insufficiently pled because Defendant was required to
state facts in the same manner as a complaint must do for a cause of action.
For these reasons, Plaintiff’s demurrer is granted. Defendants are
granted 20 days leave to file an amended answer. Plaintiff is to give
notice.
Conclusion
Plaintiff’s demurrer is granted. Defendants are granted 20 days leave
to file an amended answer. Plaintiff is to give notice.