Judge: Jill Feeney, Case: 22STCV25529, Date: 2023-02-01 Tentative Ruling
Case Number: 22STCV25529 Hearing Date: February 1, 2023 Dept: 30
Department 30, Spring Street Courthouse
February 1, 2023
22STCV25529
-Plaintiff’s Demurrer to Answer filed by Defendant Turo, Inc.
-Plaintiff’s Demurrer to Answer filed by Defendant Grant Kazarian
DECISION
As set forth below, the demurrers are sustained in part with leave to amend and overruled in part.
Any amended answers must be filed within 45 days after the date of this order.
Moving party to provide notice and to file proof of service of such notice within five court days.
Background
This is an action for negligence and motor vehicle negligence arising from a vehicle collision that took place in February 2021. Plaintiff Jianna Bonomi filed her Complaint against Defendants Turo, Inc. and Grant Kazarian on August 8, 2022.
Defendants filed and served their answers on October 26, 2022.
Plaintiff filed the instant demurrers to Defendants’ Answers on November 16, 2022.
On December 20, 2022, the Court continued this matter to allow Plaintiff to file supplemental briefing on the issue of timeliness.
Summary
Moving Arguments
Plaintiff demurs to all 18 affirmative defenses in both Defendants’ Answers on the grounds that they consist of boilerplate language that do not allege any specific facts. Plaintiff argues the Answers do not state facts sufficient to support Defendants’ defenses and are uncertain to the point that Plaintiff is unable to formulate a meaningful discovery plan.
Opposing Arguments
Defendants Turo and Grant Kazarian argue that their defenses were adequately pled.
Reply Arguments
Plaintiff reiterates arguments from her motion and argues that Defendants’ references to deficiencies in Plaintiff’s Complaint are irrelevant.
Legal Standard
Within ten (10) days of service of an answer, a party against whom an answer has been filed may object by demurrer. (Code Civ. Proc., § 430.40.) 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.
(Code Civ. Proc., § 430.20.)
A court has discretion to consider late-filed demurrers if good cause is shown and the delay does not exceed an additional 30 days without the adverse party’s consent. (Code Civ. Proc., §1054, subd. (a).)
A verified complaint must be denied positively or according to information and belief. A general denial is effective to controvert all material allegations of an unverified complaint. (Code Civ. Proc., § 431.30, subd. (d).) Anything less than a general denial of the whole complaint is a “qualified” or “specific” denial. A defendant can direct his or her denials to specific sentences, paragraphs, of parts of the complaint. Although not widely used, a defendant can also effectively deny allegations in the complaint by alleging contrary or inconsistent facts.
In addition to denials, the answer should contain any and all affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are “new matter.” (Code Civ. Proc., § 431.30, subd. (b).) Generally, a defendant bears the burden of proving “new matter” and, as such, 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; see also Cahil Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385 [“The basic consideration is whether the matters of defense are responsive to the essential allegations of the complaint, i.e., whether they are contradicting elements of plaintiff’s cause of action or whether they tender a new issue, in which case the burden of proof is upon the defendant as to the allegation constituting such new matter.”].) 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. (Ibid.; see also Statefarm Mutual Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 [holding a matter negating an essential allegation in the complaint does not constitute a new matter, and therefore, need not be specifically pled by the defendant].)
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.) The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” (Code Civ. Proc., § 431.30(g).) Defenses must be pleaded in the nature of “yes, the allegations [of the complaint] are true, but . . .” (FPI Development, Inc., supra, 231 Cal.App.3d at p. 383.)
Meet and Confer
A party filing a demurrer “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.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)
Plaintiff’s counsel testifies that he met and conferred with Defendants’ counsel via telephone on November 15, 2022 and could not reach an informal resolution. (Munoz Decl., ¶5.) Plaintiff satisfies meet and confer requirements.
Discussion
Plaintiff demurs to Defendants’ answers on the grounds that they fail to state facts sufficient to constitute defenses and because they are uncertain.
Plaintiff submitted supplemental briefing on the issue of timing. Plaintiff argues that she granted an extension for Defendants to file their Answers to November 11, 2022 and Defendants agreed to extend Plaintiff’s deadline to file responsive motions to November 16, 2022. (Supp. Briefing, Exh. 2.) This demurrer was filed on November 16, 2022. Thus, the demurrer is timely.
Defendants Turo and Kazarian filed Answers that are substantially similar. Plaintiff argues that there are no facts to support the affirmative defenses alleged in Defendants’ answers.
Both Turo and Kazarian
Defendants’ First Affirmative Defense alleges that Plaintiff’s Complaint does not contain facts sufficient to constitute a cause of action against Defendants. This defense is sufficiently pled. The demurrers to this defense are overruled.
Defendants’ Second Affirmative Defense states that Plaintiff’s claims are barred by the statute of limitations. Here, Defendants’ answer alleges that Plaintiff’s claims are barred under Code Civil Proc., section 335.1. Given the date of the accident here and the statute of limitations cited, the demurrers to this defense are sustained with leave to amend.
Defendants’ Third and Fourth Affirmative Defenses states that they deny that any act or omission to act on their part, or on the part of any other person for whom Defendants are legally responsible, actually or proximately caused or contributed to any losses or damages for which Plaintiff seeks recovery. Defendants’ Fifth, Sixth, Seventh, Fourteenth and Sixteenth Affirmative defenses cover comparative fault, apportionment of fault, and the acts of other parties. Defendants allege that Plaintiff was negligent and that there were intervening and superseding causes of Plaintiff’s damages. Defendants also allege that Plaintiff’s non-economic injuries were caused by persons other than Defendants and that they would only be liable for damages allocated to their percentage of fault. These matters are sufficiently pled and give Plaintiff the same type of notice that Plaintiff provided to Defendants in the Complaint. The demurrers are overruled with respect to these defenses.
Defendants’ eight affirmative defense, failure to mitigate, also is adequately pled in much the same manner as Plaintiff’s complaint is pled. The demurrers are overruled as to this defense.
Ninth: Estoppel
Tenth: Unclean hands
Eleventh: Reliance on Good Faith of Others
Twelfth: Custom and Practice
Thirteenth: Voluntary Assumption of the Risk
Fifteenth: Unavoidable Accident
Seventeenth: Indispensable Parties.
These defenses consist solely of legal conclusions. Defendants fail to allege any facts supporting these affirmative defenses. The demurrers to these defenses are sustained with leave to amend.
Turo’s Eighteenth Affirmative Defense and Kazarian’s Twentieth Affirmative Defense both state that they intend to rely on other affirmative defenses as may become legally available during discovery and reserves their right to amend their answers. Code Civ. Proc., section 473 provides that parties seeking leave to amend their pleadings must file a motion to amend. A reservation of rights would not circumvent this requirement. Here, Defendants’ reservation of rights is redundant given the statutory procedure available to seek leave to amend. The demurrers to this defense are sustained.
As to Kazarian only
Kazarian’s Eighteenth Affirmative Defense covers Graves Amendment preemption of vicarious liability. Kazarian alleges that the Graves Amendment preempts any state or local law that would impose vicarious liability on the vehicle owner who has rented or shared his car for remuneration for the conduct of the driver. Kazarian does not allege facts that any party rented or shared a vehicle for remuneration. The demurrer to this defense is sustained with leave to amend.
Kazarian’s Nineteenth Affirmative Defense states that claims against him are barred under Insurance Code, section 11580.24(d). Section 11580.24(d) concerns actions where injury occurred while a vehicle was under the control of a person other than the vehicle owner pursuant to a vehicle sharing program. This case does not appear to concern a vehicle sharing program, nor does Kazarian allege facts showing that his vehicle was being used by a person other than himself pursuant to a vehicle sharing program. The demurrer to this defense is sustained with leave to amend.
Conclusion
Plaintiff’s demurrers are overruled in part and sustained in part.
