Superior Court of California 

County of Los Angeles 

Department 78 

 

LINDA ALEXANDER-LIEBLANG,

Plaintiff,  

vs. 

MOMENTUM AGENCIES,

Defendants. Case No.: 23STCV30746

DEMURRER TO DEFENDANT MOMENTUM AGENCIES’ ANSWER

Plaintiff’s demurrer is SUSTAINED in part with leave to amend and OVERRULED in part. 

Any first amended answer must be filed and served within 30 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 after the date of this order.

FACTUAL BACKGROUND

This is an action for violations of the FEHA, unfair business practices, and for declaratory and injunctive relief. Plaintiff alleges that while she was employed as a human resources officer for Defendant, she was paid less than her male coworkers. Plaintiff was later terminated in retaliation for whistleblowing about the difference in pay and because she took medical leave.

PROCEDURAL HISTORY

On December 18, 2023, Plaintiff filed her Complaint against Linda Alexander-Lieblang.

On January 19, 2024, Defendant Answered.

On February 9, 2024, Plaintiff filed this demurrer to Defendant’s Answer.

On February 29, 2024, Defendant filed an opposition.

On March 6, 2024, Plaintiff filed a reply.

DISCUSSION

Plaintiff demurs to Defendant’s Answer on the grounds that the Answer fails to state facts sufficient to constitute a defense or an affirmative defense.  

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).) 

 

Here, Plaintiff’s counsel testifies that he attempted to meet and confer with Defendant my emailing a meet and confer letter to Defendant’s counsel. (Kalinowski Decl., ¶2.) After the parties extended the deadline to Answer, Defendant’s counsel failed to respond to Plaintiff’s counsel’s meet and confer communications. (Id., ¶3.) Although Defendant argues Plaintiff failed to meet and confer, the Court finds that Plaintiff satisfied meet and confer requirements.    

Judicial Notice

Plaintiff requests judicial notice of the Complaint and Answer in this action. The requests are granted.

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., section 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., section 430.20.)¿  

 

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., section 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.¿ 

 

An 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 matters 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., section 431.30(g).)¿ 

Analysis

Plaintiff demurs to each of Defendant’s affirmative defenses except for the first affirmative defense on the grounds that each affirmative defense fails to state facts sufficient to constitute a defense or affirmative defense. 

Statute of Limitations (Second Affirmative Defense)

Defendant’s second affirmative defense states the Cross-Complaint is barred by the applicable statutes of limitations, including Code Civ. Proc., sections 337, 338, 339, 340, and 343. 

To properly plead a statute of limitations defense, a defendant must either (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense, or (2) plead the specific section and subdivision. (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.) An answer which only cites an inapplicable statute of limitations cannot raise an issue as to the timeliness of a complaint. (Davies v. Krasna (1975) 121 Cal.Rptr. 705, 14 Cal.3d 502.)

Here, Defendant’s Answer states Plaintiff’s action is barred by the statute of limitations set forth in Code Civ. Proc., sections 337, 338, 339, 340, and 343. However, these statutes concern written contracts, oral contracts, open accounts, injury to real party, title insurance disputes, actions against a sheriff or coroner, forfeiture to the state, libel slander, false imprisonment, and for relief not otherwise provided for in the recovery of real property, among other topics. None of these statutes appear to be applicable to violations of the FEHA or unlawful business practices. Therefore, the Answer fails to raise an issue as to the timeliness of Plaintiff’s Complaint. The demurrer is sustained on this ground.

Exhaust Administrative Remedies (Third Affirmative Defense)

Defendant’s next affirmative defense is that Plaintiff failed to exhaust administrative remedies. 

Under Government Code section 12960, an employee must file an administrative charge with the DEFH within one year of experiencing conduct prohibited by FEHA. The statute enumerates the administrative steps that employees must take in order to file a complaint with the DEFH, including setting forth “particulars” of the unlawful practice as required by the department.  

Here, the Answer states that Plaintiff failed to exhaust administrative remedies available under state and federal law. (Answer, p.2.) Because the Answer need only allege ultimate facts, an allegation that Plaintiff failed to exhaust administrative remedies is sufficient to plead this affirmative defense. Although Plaintiff argues the exhibit attached to the Complaint shows she did exhaust administrative remedies, the allegations in the Answer must be taken as true for the purposes of this demurrer. Factual disputes may not be resolved on demurrer. Therefore, the demurrer is overruled on this ground. That said if this defense is not factually supported, the Court would ask that Defendants not include it in any amended answer. 

Sufficient Ultimate Facts

The Answer as to the following causes of action states sufficient ultimate facts to support them:

Seventh: Not willful

Eighth: Good faith dispute

Ninth: Previous pursuit of claim

Tenth: Adequate remedy at law

Eleventh: Failure to state a claim for attorney’s fees

Twelfth: Arbitration

Thirteenth: Failure to state a claim for prejudgment interest

Fourteenth: Sham pleading

Fifteenth: Failure to mitigate

Sixteenth: Lawful business and good faith actions

Seventeenth: Uncertainty

Eighteenth: Compromise and release

Nineteenth: Causation/contribution by Plaintiff’s own acts

Twentieth: Causation/contribution by third party acts

Twenty-second: No private right of action

Twenty-third: Failure to perform responsibilities

Twenty-fourth: Mixed-motive/same decision

Twenty-fifth: Full compliance with labor codes and laws

Twenty-sixth: No knowledge

Twenty-seventh: Good faith

Twenty-eighth: Acts outside the scope of agency relationship

Twenty-ninth: No punitive or exemplary damages

Thirtieth: No failure to pay wages

Thirty-first: Privileged, good faith, and justified conduct

Twenty-fourth: Mixed-motive/same decision

Thirty-second: Speculative damages

Remaining Defenses

Defendant also alleges the following affirmative defenses:

Fourth: Unclean hands

Fifth: Laches

Sixth: Estoppel and Waiver

Twenty-first: Due process required

Thirty-third: Reservation of future defenses

These defenses consist solely of legal conclusions. Defendant fails to allege any facts supporting these affirmative defenses. The demurrer is sustained as to these defenses.

Defendant argues that the Answer is sufficiently pled because the affirmative defenses are new matters which incorporate the Complaint. Defendant argues that to require more specificity is a heightened pleading standard.

An affirmative defense is considered “new matter” beyond a general denial. (Code Civ. Proc., section 431.30, subd. (b)(2).) The defendant bears the burden of proof to establish any new matters. (Harris v City of Santa Monica (2013) 56 Cal.4th 203, 239.) The answer must allege the facts on which the defense is founded. (See California Trust Co. v. Gustason (1940) 15 Cal.2d 268, 273.) 

Here, the remaining defenses are not sufficiently piled even if the Answer incorporates the Complaint because the Answer fails to identify any fact on which the defenses are founded.

DATED: March 13, 2024 

____________________________

Hon. Jill Feeney

Judge of the Superior Court