Judge: Kerry Bensinger, Case: 21STCV30169, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV30169    Hearing Date: May 8, 2023    Dept: 27

Tentative Ruling

 

Judge Kerry Bensinger, Department 27

 

 

HEARING DATE:     May 8, 2023                           TRIAL DATE:  July 24, 2023

                                                          

CASE:                         Steven Parris v. Mastro’s Restaurants, LLC, et al.

 

CASE NO.:                 21STCV30169

 

 

DEMURRER TO ANSWER TO FIRST AMENDED COMPLAINT

 

MOVING PARTY:               Plaintiff Steven Parris

 

RESPONDING PARTY:     Defendant Moses Barrios

 

 

I.          BACKGROUND

 

On August 16, 2021, Plaintiff Steven Parris filed this action for injuries arising from a slip and fall.  Plaintiff filed the First Amended Complaint (“FAC”) on August 24, 2021.  The FAC is unverified.  According to the FAC, on December 25, 2019, Plaintiff slipped and fell on the wet bathroom floor of a restaurant owned, managed, and operated by Defendants. 

 

The FAC asserts causes of action for (1) Premises Liability and (2) Negligence against defendants Mastro’s Restaurants, LLC, Matthew Espy, and Does 1 to 50.  Plaintiff named defendant Moses Barrios (“Barrios”) by doe amendment on February 23, 2023.  Barrios filed an Answer to the FAC on April 3, 2023, asserting seven affirmative defenses. 

 

            On April 6, 2023, Plaintiff filed this demurrer to Barrios’ Answer.  Barrios opposes.

 

II.        LEGAL STANDARD

 

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.)  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.)   

 

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. Nakashima (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, subd. (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.)  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; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.  (Code Civ. Proc., § 458.

 

IV.       DISCUSSION

 

A.    Timeliness

 

A party who has filed a complaint may, within 10 days after service of the answer to his pleading, demur to the answer.  (Code Civ. Proc., § 430.40, subd. (b).)  Here, Barrios served his answer on April 3, 2023, and Plaintiff filed this demurrer to Barrios’ answer three days later. Plaintiff’s motion is timely. 

 

B.     Meet and Confer 

 

“Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the 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., § 430.41, subd. (a).)  Plaintiffs’ counsel has not satisfied the meet and confer requirement.  (Declaration of Ramin Soofer, ¶ 2.)  However, a failure to comply with the requirement shall not be grounds to overrule or sustain a demurrer.¿ (Code Civ.  Proc., § 430.41, subd. (a)(4).)¿ Therefore, the Court considers the merits of Enterprise’s demurrer.[1]

 

C.     Analysis

Plaintiff argues that Barrios’ First, Second, Fourth, Fifth, and Sixth Affirmative Defenses do not state facts sufficient to constitute a defense.  The Court addresses each in turn.

 

1.      First Affirmative Defense

 

“That the accident and resulting injuries and damages, if any, alleged in the Complaint were proximately caused and contributed in some degree, by the negligence and carelessness of the Plaintiff, in that he so negligently failed to exercise ordinary care and caution for his own safety, so as to cause said action. On information and belief, Plaintiff failed to take notice of wet floor sign(s) posted outside the subject restroom and use caution accordingly when entering the restroom. Plaintiff failed to recognize a condition which was open and obvious in that it was raining heavily outside and Defendant had placed rugs throughout the entry way near the restroom.”

 

(Answer, ¶ 2.)                                                                    

 

            Contrary to Plaintiff’s argument, the First Affirmative Defense alleges facts sufficient to state a defense.  Specifically, Barrios alleges that Plaintiff “failed to take notice of wet floor sign(s) posted outside the subject restroom and use caution accordingly when entering the restroom.  Plaintiff failed to recognize a condition which was open and obvious in that it was raining heavily outside and Defendant had placed rugs throughout the entry way near the restroom.”  The foregoing is more than sufficient to apprise Plaintiff of the basis for this defense.

            Accordingly, the demurrer to the First Affirmative Defense is OVERRULED.

2.      Second Affirmative Defense

“That Plaintiff is barred from any recovery herein as to this answering Defendant and any damages proven to have been sustained by the Plaintiff herein, would be the direct and proximate result of the independent negligence and unlawful conduct of independent third parties, whether named or not named, or their agents, and not any act or omission on the part of this answering Defendant.”

(Answer, ¶ 3.)

            Plaintiff argues the Second Affirmative Defense is vague and lacking in effect, and that Barrios “must know if there is third party negligence” because Plaintiff and manager have been deposed and written discovery has been answered.  This argument lacks merit.  Barrios filed his Answer on April 3, 2023; he is a new party.  Plaintiff does not cite to any authority for the proposition that any and all information discovered prior to a defendant’s addition should be attributed to that defendant.  Moreover, the Second Affirmative Defense sets forth sufficient facts to state a defense.

            Accordingly, the demurrer to the Second Affirmative Defense is OVERRULED.

3.      Fourth Affirmative Defense

“Defendant is informed and believes, and on that basis alleges, that Plaintiff has failed to mitigate all or some of his alleged damages.”

(Answer, ¶ 5.)

            Plaintiff argues that Barrios fails to allege sufficient facts to show how Plaintiff failed to mitigate damages.  But each evidentiary fact need not be alleged.  The Fourth Affirmative Defense sufficiently apprises Plaintiff of the nature of the defense.  The general demurrer is OVERRULED.   

                        3.  Fifth Affirmative Defense

“That the Complaint fails to state facts sufficient to constitute a cause of action. On information and belief, wet floor caution sign(s) were present just outside the door of the men’s restroom providing Plaintiff with adequate warning of any potentially wet floor. The condition alleged was open and obvious to Plaintiff who failed to recognize and take appropriate caution to protect himself against it.”

(Answer, ¶ 6.)

            This Fifth Affirmative Defense sets forth the same or similar facts as the First Affirmative Defense.  The defense is sufficient pled.

            Accordingly, the demurrer to the Fifth Cause of Action is OVERRULED.

4.      Sixth Affirmative Defense

“Defendant is informed and believes and based thereon alleges that a differential exists between medical expenses billed and medical bills paid by or on behalf of Plaintiff and pursuant to Howell v. Hamilton Meats ck Provisions (2011) 52 C.4th 541, 129 C.R.3d 325, 257 P.3d 1130, Plaintiff is entitled to only amounts paid for medical care and treatment, if any.”

 

(Answer, 7.)

 

            Plaintiff argues that the Sixth Affirmative Defense is not a defense but a recitation of law concerning the admissibility of medical specials.  The defense alleges a differential between the medical expenses billed and medical bills paid.  Defendant may produce such evidence and can avail itself of the law.  While this may be a legal proposition, it may also support an affirmative defense related to damages. 

           

            Accordingly, the demurrer to the Sixth Affirmative Defense is OVERRULED.

 

V.        CONCLUSION

 

            The demurrer to the Answer is OVERRULED. 

           

            Defendant to give notice.

.

 

 

Dated:   May 8, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

 

 


[1]  Failure to meet and confer may result in the continuance of the hearing.