Judge Lee S. Arian, Case Number: 23STCV24888, Date: 2023-12-20 Tentative Ruling

On October 12, 2023, Plaintiff Lauren Michelle Reynaldo (“Plaintiff”) filed this action against Defendants County of Los Angeles, City of Los Angeles, David J. Goldstein, The Goldstein Living Trust, and Does 1 through 100, inclusive, asserting causes of action for (1) negligence and (2) dangerous condition of public property.

The Complaint alleges the following: On January 5, 2023, at approximately 5:10 pm, Plaintiff was walking eastbound on 5^th Street and Lucerne Avenue, City of Los Angeles, County of Los Angeles, California. (Compl., ¶ 11.) She was lawfully walking towards her home when she tripped and fell on an uneven/raised sidewalk at 501 S. Lucerne Blvd., Los Angeles, CA 90020. (Compl., ¶ 11.) As a result of the fall, Plaintiff suffered injuries to her left ankle, requiring medical attention. (Compl., ¶ 11.) Defendants David J. Goldstein and The Goldstein Living Trust owned the property at 501 S. Lucerne Blvd., Los Angeles, CA 90020. (Compl., ¶ 4.)

On November 14, 2023, Defendants David J. Goldstein and The Goldstein Living Trust (collectively, “Defendants”) filed their Answer to the Complaint. They also filed a Cross-Complaint against the County of Los Angeles, City of Los Angeles, and Roes 1 through 10, inclusive, asserting causes of action for (1) implied indemnity and total indemnity and (2) apportionment of fault.

On November 20, 2023, Plaintiff filed the instant demurrer to Defendants’ Answer, arguing that Defendant’s eighteen (18) affirmative defenses in the pleading “are defective pursuant to California Code of Civil Procedure § 430.20(a) in that they each fail to allege facts sufficient to constitute a defense and/or fail to make Plaintiff reasonably aware of the defense actually being raised, and are therefore uncertain under California Code of Civil Procedure § 430.20(b).” (Notice of Demurrer, p. 1:11-14 [italics removed].) Plaintiff argues that because affirmative defenses or objections are “new matter,” Defendants bear the burden of proving and specifically pleading them in their Answer.

On December 4, 2023, Defendants filed their opposition to the demurrer, arguing the following, among other things: First, Defendants pleaded the affirmative defenses to prevent waiving the defenses. Second, Defendants had no way of providing all facts to support those defenses within thirty (30) days of receiving the Complaint when no discovery had been done, and this is the first time Defendants are aware of Plaintiff’s claim that allegedly occurred two (2) years ago. Third, a demurrer for uncertainty is strictly construed because even where a complaint is uncertain, those ambiguities can be resolved through discovery. Here, Plaintiff is on notice of the affirmative defenses, and if she believes she needs more facts, she can use discovery to get more details.

On December 12, 2023, Plaintiff filed her reply, arguing as follows, among other things: Defendants misstate the law by arguing that factual support is not required. California is a fact-pleading jurisdiction, not a notice-pleading jurisdiction, such that merely putting an opposing party on notice is insufficient. For an ultimate fact to be adequately stated and withstand demurrer, it must fairly apprise the opposing party of the factual basis of the defense alleged. Here, Defendants only provide conclusive statements of facts and fail to provide any factual basis for each affirmative defense. Defendants must scale down their affirmative defenses to those that are relevant based on the facts they currently know. If facts come to light during the litigation, Defendants may ask the Court for leave to amend the Answer, which Plaintiff will most likely stipulate to based upon this demurrer. Therefore, this demurrer should be sustained without leave to amend, as none of the subject affirmative defenses apply to this case.

Code of Civil Procedure section 430.20 provides: “A party against whom an answer has been filed may object, by demurrer …, to the answer upon any or more of the following grounds: ¶ (a) The answer does not state facts sufficient to constitute a defense. ¶ (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

“The granting or refusing of leave to amend an answer is within the sound discretion of the court. Such discretion will seldom be disturbed where exercised for the purpose of allowing the true facts to be alleged.” (Hyman v. Tarplee (1944) 64 Cal.App.2d 805, 813.) “The rule that the court should be liberal in allowing amendments when they do not seriously impair the rights of the opposite party is particularly applicable to answers.” (Id. at pp. 813-814.)

“Before filing a demurrer pursuant to … [section 430.20], the demurring party 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., § 430.41, subd. (a).)

“As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).) On the other hand, “[t]he party who filed the … answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the … answer could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

Here, Plaintiff has satisfied the meet and confer requirement. (Motion, declaration of Parham Nikfarjam, ¶¶ 2-3.)

Plaintiff demurs to the First through the Eighteenth Affirmative Defenses in Defendants’ Answer, arguing that they fail to state facts sufficient to constitute a defense and are uncertain. (Code Civ. Proc. § 430.20, subds. (a), (b)).

“Under general rules of civil procedure, an answer must contain ‘[t]he general or specific denial of the material allegations of the complaint controverted by the defendant’ and ‘[a] statement of any new matter constituting a defense.’ (Code Civ. Proc., § 431.30, subd. (b)(1) & (2).)” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812 (“Quantification”).)

“‘The phrase “new matter” refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.”’ [Citation.]” (Quantification, supra, 201 Cal.App.4th at p. 812.)

“Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.]” (Quantification, supra, 201 Cal.App.4th at p. 812.)

“Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather . . . as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”’ [Citation.]” (Quantification, supra, 201 Cal.App.4th at pp. 812-813 [emphasis added].) “‘A party who fails to plead affirmative defenses waives them.’ [Citation.]” (Id. at p. 813.)

Keeping the above rules in mind, that affirmative defenses must not be pled as terse legal conclusions but leave to amend them may be granted, the Court rules on Plaintiff’s demurrer as follows.

FIRST AFFIRMATIVE DEFENSE: “The complaint fails to state facts sufficient to constitute a cause of action against defendants.” (Answer, filed November 14, 2023, p. 1:26-27.)

The Court finds the first affirmative defense sufficiently pled, in concert with the Complaint, and, therefore, overrules the demurrer.

SECOND AFFIRMATIVE DEFENSE: “That any injuries, damage or loss, if any, which was sustained by Plaintiff herein was proximately caused and contributed by the willful act of contributory negligence on the part of the

Plaintiff in that Plaintiff failed to exercise any degree of care for their own and as a result willfully and wantonly contributed to the proximate cause of their own injuries.” (Answer, p. 2:1-5.)

The Court finds the second affirmative defense sufficiently pled and, therefore, overrules the demurrer. As stated above, and as Defendants argue, demurrers on the grounds of uncertainty are strictly construed because ambiguities can be resolved through discovery. Here, Plaintiff can find out more details as to why Defendants believe she contributed to her alleged injuries through discovery.

THIRD AFFIRMATIVE DEFENSE: “Plaintiff has failed to mitigate damages, if any, in connection with the matters referred to in the complaint; the failure to mitigate damages bars and/or diminishes the recovery, if any, against these answering Defendants.” (Answer, p. 2:6-9.)

The Court finds the third affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

FOURTH AFFIRMATIVE DEFENSE: “Through its conduct, Plaintiff approved, authorized, consented to and/or ratified Defendants’ conduct alleged in the complaint.” (Answer, p. 2:10-12.)

The Court finds the fourth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

FIFTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis alleges that Plaintiff has unclean hands in relation to the matters alleged in its complaint and, by virtue of its acts, conduct, representations and omissions, Plaintiff has waived their right to the relief sought in the complaint.” (Answer, p. 2:13-16.)

The Court finds the fifth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

SIXTH AFFIRMATIVE DEFENSE: “These Defendants allege that by virtue of Plaintiff’s own acts and conduct, Plaintiff has waived their right to and/or is estopped from asserting their claim.” (Answer, p. 2:17-19.)

The Court finds the sixth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

SEVENTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis allege that Plaintiff has waived their right to the relief sought in the complaint pursuant to the doctrine of laches.” (Answer, p. 2:20-22.)

The Court finds the seventh affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

EIGHTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis allege that in the event an unsafe condition of the property caused or contributed to Plaintiff’s harm that the condition was so obvious that a person could reasonably be expected to observe it and Defendants have not required to warn others, including Plaintiff, about the condition.” (Answer, p. 2:23-27.)

The demurrer to the eighth affirmative defense is overruled because it is sufficiently pled.

NINTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis allege that the real property did not create an unreasonable risk of harm to those entering onto it.” (Answer, p. 3:1-3.)

The demurrer to the ninth affirmative defense is overruled because it is sufficiently pled.

TENTH AFFIRMATIVE DEFENSE: “Plaintiff’s claims are barred in whole or in part because the injuries and damages complained of by Plaintiff is the fault of others not named as parties to this action and/or other persons or entities unknown to Defendants.” (Answer, p. 3:4-7.)

The Court finds the tenth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

ELEVENTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis allege that in the event a dangerous condition caused Plaintiff’s harm, the condition was of such a nature and had not existed

long enough for Defendants to know of its existence or that Defendants had sufficient time to discover it.” (Answer, p. 3:8-12.)

The demurrer to the eleventh affirmative defense is overruled because it is sufficiently pled.

TWELVETH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and on that basis allege that in the event an unsafe and concealed condition of the property caused or contributed to Plaintiff’s harm that the condition was known or should have been known by Plaintiff.” (Answer, p. 3:13-16.)

The demurrer to the twelfth affirmative defense is overruled because it is sufficiently pled.

THIRTEENTH AFFIRMATIVE DEFENSE: “Plaintiff voluntarily, and with full knowledge of all of the matters set forth in the complaint, assumed the risk of any and all injuries, losses, and damages alleged in the complaint, if any there were.” (Answer, p. 3:17-20.)

The Court finds the thirteenth affirmative defense insufficiently pled (specifically, there are no facts supporting the assumption of risk defense) and, therefore, sustains the demurrer with leave to amend.

FOURTEENTH AFFIRMATIVE DEFENSE: “Plaintiff failed to perform all of the conditions, covenants, and promises incumbent upon their in connection with Plaintiff’s tenancy and such failure excuses any and all performance by defendants.” (Answer, p. 3:21-23.)

There are no facts in the Complaint or Cross-Complaint indicating this action concerns landlord-tenant issues. Therefore, it is unclear which tenancy Defendants are referring to under the fourteenth affirmative defense.

Accordingly, the Court finds the fourteenth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

FIFTEENTH AFFIRMATIVE DEFENSE: “Plaintiff’s complaint, each and every separate cause of action contained therein, and/or some of the Plaintiff’s allegations therein are barred or diminished by the applicable statute of limitations.” (Answer, p. 3:24-26.)

The Court finds the fifteenth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

SIXTEENTH AFFIRMATIVE DEFENSE: “Plaintiff consented to and/or approved some or all of the conduct alleged in the complaint.” (Answer, p. 3:27-28.)

The Court finds the sixteenth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

SEVENTEENTH AFFIRMATIVE DEFENSE: “Plaintiff’s claim is barred in whole or in part because of their failure to timely notify Defendants of the alleged breaches, damages, and/or conditions, if any.” (Answer, p. 4:1-3.)

The Court finds the seventeenth affirmative defense insufficiently pled and, therefore, sustains the demurrer with leave to amend.

EIGHTEENTH AFFIRMATIVE DEFENSE: “These Defendants are informed and believe and upon that basis allege that in the event Plaintiff was injured on Defendants’ property, the defect that allegedly caused Plaintiff’s harm was so minor, insignificant and/or trivial that Defendants did not breach its duty of care to Plaintiff.” (Answer, p. 4:4-7.)

The demurrer to the eighteenth affirmative defense is overruled because it is sufficiently pled.

The Demurrer to Defendants David J. Goldstein and The Goldstein Living Trust’s Answer is OVERRULED IN PART and SUSTAINED IN PART as follows.

The demurrer to the 2^nd, 8^th, 9^th, 11^th, 12^th and 18^th affirmative defenses is OVERRULED.

The demurrer to the 1^st, 3^rd, 4^th, 5^th, 6^th, 7^th, 10^th, 13^th, 14^th, 15^th, 16^th, and 17^th affirmative defenses is SUSTAINED with leave to amend.

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’s 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