Judge: Lee S. Arian, Case: 23STCV19426, Date: 2023-12-08 Tentative Ruling

Case Number: 23STCV19426    Hearing Date: December 8, 2023    Dept: 27

Tentative Ruling

Judge Lee S. Arian, Department 27

HEARING DATE:     December 8, 2023                              TRIAL DATE:  February 11, 2025

CASE:                         Saryl Radwin v.  City of Los Angeles

CASE NO.:                 23STCV19426

DEMURRER TO DEFENDANT’S ANSWER WITHOUT MOTION TO STRIKE

MOVING PARTY:               Plaintiff Saryl Radwin

RESPONDING PARTY:     City of Los Angeles

I.          BACKGROUND

            On August 15, 2023, Saryl Radwin (“Plaintiff”) filed this action against the City of Los Angeles (“Defendant”) for injuries arising from a trip and fall on December 7, 2022.

            On October 26, 2023, Defendant filed its Answer which listed seven affirmative defenses.

On November 11, 2023, Plaintiff filed this Demurrer to Defendant’s Answer because the affirmative defenses in the Answer fail to state facts to constitute an affirmative defense.

On November 27, 2023, Defendant filed an Opposition arguing that Plaintiff’s motion is premature because discovery will provide the requested information.  

On December 1, 2023, Plaintiff filed a Reply arguing that the Defendant fails to cite any law supporting its arguments.

II.        LEGAL STANDARD & DISCUSSION

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, Defendant served its answer on October 26, 2023 and Plaintiff filed this demurrer to Defendant’s answer ten days later on November 9, 2023. Thus, Plaintiff’s motion is timely. 

Meet and Confer 

Before filing a demurrer, the demurring party shall meet and confer with the party who filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)

Plaintiff’s Counsel satisfied this requirement because he provided emails between the parties showing their meet and confer efforts. (Armen Tashjian’s Declaration, ¶2; Exhibit F.) Therefore, the Court considers the merits of Moving Parties’ demurrer.   

Legal Standards & Discussion

Under California Code of Civil Procedure 431.30, the answer to a complaint shall contain “(1) the general or specific denial of the material allegations of the complaint refuted by the defendant and (2) a statement of any new matter constituting a defense.”

“An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) “The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (Ibid.) “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, 348.)   

Plaintiff demurred to City’s affirmative defenses on the grounds that they fail to state facts to support each affirmative defense. The first affirmative defense states “[t]he damages alleged were directly and proximately caused and contributed to by the negligence of plaintiff, and the extent of damages sustained, if any, should be reduced in proportion to the amount of said negligence.” (Defendant’s Answer p. 2, ¶2; Armen Tashjian’s Declaration, ¶6; Exhibit D.) Defendant’s remaining six affirmative defenses also make additional claims such as assumption of risk, statute of limitations, California Tort Claims Act, negligence, and immunity but do not provide any facts as to how they are applicable. (Defendant’s Answer p. 2, ¶¶3-8; Id.) Nevertheless, when applying the court’s reasoning in South Shore Land Co., the complaint must also be referenced to determine the answer’s sufficiency. When referencing the Answer with the Complaint, the Plaintiff is not prejudiced by the lack of facts. (Complaint p. 3-6; Exhibit C.)

The case of Hoelzle v. Fresno County, (1958) 159 Cal.App.3d 278, is instructive. In that case, the answer was similar to Defendant’s answer, but the court considered it to be adequate when read with the complaint.

When read in concert with the Complaint’s allegations, the affirmative defenses here provide sufficient information for Plaintiff to be put on notice of those defenses.  Through discovery, Plaintiff will be able to obtain information to determine if the actual facts support those defenses.

The Court overrules the demurrer in its entirety.

Non- moving party to give notice. 

Dated:   December 8, 2023                                                     ___________________________________

                                                                                    Lee S. Arian

                                                                                    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.