Judge Lee S. Arian, Case Number: 23STCV23614, Date: 2024-01-22 Tentative Ruling

This is an auto accident case. On September 29, 2023, Plaintiff John Merriett (“Plaintiff”) filed this action against Defendants Vincent Mack Jr., Charlotte Bilis, Uber Technologies, Inc. (“Uber”), and Does 1 to 50, alleging causes of action for motor vehicle and general negligence. Uber filed an Answer to the Complaint on December 1, 2023.

On December 8, 2023, Plaintiff filed a demurrer to Uber’s Answer. On January 8, 2024, Uber filed an opposition to the demurrer. Plaintiff did not file an optional reply.

A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds:

(b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the pleading; and for purposes of ruling on the demurrer, all facts pleaded in the pleading are assumed to be true. (See Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

Counsel for Plaintiff indicates having met and conferred with counsel for Uber regarding the subject matter of this demurrer. (Zeesman Decl., ¶¶ 3-4, Ex. A.) The Court finds Plaintiff’s meet and confer efforts inadequate, as Plaintiff provides no evidence of having attempted to meet and confer telephonically or in person, as is required under Code of Civil Procedure section 430.41, subdivision (a). (Code Civ. Proc., § 430.41, subd. (a).) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Id., § 430.41, subd. (a)(4).) Therefore, the Court will still consider Plaintiff’s demurrer, but the Court admonishes Plaintiff to comply with the Code of Civil Procedure going forward.

Plaintiff demurs to Uber’s Answer to the Complaint on the grounds that the Answer fails to plead facts sufficient to state an affirmative defense, and on the grounds that the Answer is uncertain. Plaintiff contends the Answer is comprised solely of generic, boilerplate affirmative defenses without any factual allegations, and is also uncertain as a result. The Court finds Plaintiff’s demurrer unpersuasive and unavailing.

Although not raised in Uber’s opposition, if Plaintiff intended to demur separately to each affirmative defense on separate grounds for each affirmative defense, i.e. failure to state facts and uncertainty, Plaintiff was required to have pleaded each ground for each affirmative defense in a separate paragraph. (See Cal. Rules of Court, rule 3.1320, subd. (a) [“[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”]) Plaintiff lumped all 22 affirmative defenses and the grounds for demurrer into one sentence, (Notice, 1:26-27), which violates rule 3.1320, subdivision (a) of the California Rules of Court. (See Cal. Rules of Court, rule 3.1320, subd. (a); A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, ¶ 7:103 [“If several grounds are stated conjunctively in the same paragraph (e.g., ‘the complaint is uncertain and fails to state facts sufficient to constitute a cause of action’), the demurrer violates CRC 3.1320(a).”]). The Court therefore construes Plaintiff’s demurrer as a demurrer to the entire Answer, which means that if any of Uber’s affirmative defenses are adequately pleaded, the entire demurrer fails. (See Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 36; A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, ¶ 7:105.)

Moreover, although also not raised in Uber’s opposition, Code of Civil Procedure section 458 provides that, “[i]n 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.) The Court finds that Uber’s Answer complies with Code of Civil Procedure section 458. (Answer, 2:5-15.). Therefore, Uber has sufficiently pled an affirmative defense based on the statute of limitations, which defeats Plaintiff’s demurrer. (See Warren, supra, 19 Cal.App.3d at p. 36; A. Demurrers, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A, ¶ 7:105.)

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.

Hon. Lee S. Arian

Judge of the Superior Court