Judge: Lisa R. Jaskol, Case: 23STCV19743, Date: 2024-04-15 Tentative Ruling
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Case Number: 23STCV19743 Hearing Date: April 15, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On August 17, 2023, Plaintiff Judy Lipkin (“Plaintiff”) filed this action against Defendants City of Los Angeles (“Defendant”) and Does 1-100 for dangerous condition of public property under Government Code sections 830, subdivision (a), 835, subdivision (b), and 835.2.
On December 12, 2023, Defendant filed an answer and a cross-complaint against Cross-Defendants Roes 1-10 for indemnification, apportionment of fault, and declaratory relief.
On February 2, 2024, Plaintiff filed a demurrer to Defendant’s answer, to be heard on March 1, 2024.
On February 5, 2024, Defendant filed a first amended answer.
On February 16, 2024, Plaintiff a demurrer to the first amended answer, to be heard on March 14, 2024. On March 1, 2024, Defendant filed an opposition. On March 15, 2024, Plaintiff filed a reply. The Court continued the hearing to April 15, 2024.
Trial is scheduled for February 13, 2025.
PARTIES’ REQUESTS
Plaintiff asks the Court to sustain the demurrer to Defendant’s first amended answer.
Defendant asks the Court to overrule the demurrer or grant leave to amend.
LEGAL STANDARD
Code of Civil Procedure section 430.20 provides:
“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:
“(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.
“(c) Where the answer pleads a contract, it cannot be
ascertained from the answer whether the contract is written or oral.”
Code of Civil Procedure section 430.30, subdivision (a), provides:
“(a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.”
(Code Civ. Proc., § 430.30, subd. (a).)
Code of Civil Procedure section 430.40, subdivision (b), provides:
“(b) A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.”
(Code Civ. Proc., § 430.40, subd. (b).)
DISCUSSION
A. The complaint
The
complaint alleges that on October 31, 2022, due to Defendants’ negligence,
Plaintiff’s foot struck a raised portion of sidewalk located on public property
at or near 2018 Westwood Boulevard in Los Angeles which was cracked, broken,
elevated and mis-leveled. As a result,
Plaintiff tripped and fell, suffering injuries.
B. Defendant’s answer
The
answer denied the complaint’s allegations and asserted seven affirmative defenses.
C. The first amended answer
The first amended answer denies the complaint’s allegations and asserts four affirmative defenses.
· First affirmative defense: “The 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.”
· Second affirmative defense: “The damages alleged were
directly and proximately caused and contributed to by the negligence of other
persons, and the extent of damages sustained, if any, should be reduced in
proportion to the amount of said negligence.”
· Third affirmative defense: “Plaintiff had actual
knowledge of the condition and particular danger alleged, knew and understood
the degree of the risk involved, and voluntarily assumed such risk.”
· Fourth affirmative defense: “That Plaintiff failed to exercise reasonable care and diligence to mitigate any damages sustained by reason of Defendant’s alleged acts. Therefore, any damages awarded to Plaintiff shall be limited to the damages Plaintiff would have sustained had Plaintiff mitigated their damages.”
D. The Court takes the hearing on Plaintiff’s demurrer to Defendant’s initial answer off calendar
“A party may amend its [answer] once without leave of the court . . . after a demurrer . . . is filed but before the demurrer . . . is heard if the amended [answer] is filed and served no later than the date for filing an opposition to the demurrer . . . .” (Code Civ. Proc., § 472, subd. (a).) The opposition to a demurrer must be filed at least nine court days before the hearing on the demurrer. (Code Civ. Proc., § 1005, subd. (b).)
Defendant filed its amended answer on February 5, 2024, which was more than nine court days before the demurrer hearing scheduled for March 1, 2024. Therefore, the amended answer supersedes the original answer and moots Plaintiff’s original demurrer, which the Court takes off calendar. (Cf. L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:122.16, p. 7(l)-56 (Cal. Practice Guide).)
E. Plaintiff’s demurrer to Defendant’s amended answer
Plaintiff asserts that the four affirmative defenses alleged in Defendant’s amended answer (Section C above) do not state facts sufficient to constitute a defense. According to Plaintiff, the affirmative defenses contain only conclusory allegations and lack supporting facts.
F. Analysis
Like a complaint, an answer must plead “ultimate facts” rather than “evidentiary” matter or legal conclusions. (Cal. Practice Guide, supra, ¶ 6:459, pp. 6-144 to 6-145; see FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (FPI) [answer’s affirmative defenses of fraud in the inducement and failure of consideration, proffered in the form of terse legal conclusions, would not have survived a demurrer].) 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.’ ” (Cal. Practice Guide, supra, ¶ 6:459, p. 6-145, quoting FPI, supra, 231 Cal.App.3d at p. 384, omitting internal quotes.)
“Lawyers and judges have struggled with [the distinction between ultimate facts, evidentiary facts, and legal conclusions]. [In the context of complaints], ‘[u]ltimate facts’ are those that raise the issues on which the right to recover depends – i.e., the essential elements of the cause of action. All the facts that are material to the cause of action – i.e., the facts that make a difference to the outcome of the case – must be alleged [citation]. [Citations.] By contrast, allegations of unnecessary detail and generalized argument may be objectionable as ‘evidentiary’ pleading and ‘legal conclusion,’ respectively.” (Cal. Practice Guide, supra, ¶ 6:124, pp. 6-39 to 6-40; see id., ¶ 6:125, p. 6-40 [as example, allegation that defendant drove while under the influence of alcohol pleads an ultimate fact; allegation that defendant drove immediately after consuming a fifth of vodka pleads evidentiary matter; allegation that defendant drove in violation of California's drunk driving laws pleads a legal conclusion].)
The requirement that answers plead ultimate facts “is frequently ignored in practice.” (Cal. Practice Guide, supra, ¶ 6:459, p. 6-145.) The routine acceptance of answers with affirmative defenses phrased as legal conclusions may account for the relative lack of legal authority addressing their validity.
Here, Defendant’s affirmative defenses allege legal conclusions and give Plaintiff no information about the acts or omissions, by Plaintiff or others, on which Defendant bases the defenses.
Defendant argues that reviewing the answer in the context of the complaint provides adequate notice of potentially meritorious defenses. But Defendant points to nothing in the complaint that provides this notice. Indeed, the complaint contains no allegations of ultimate facts that support Defendant’s affirmative defenses.
Defendant also cites Hoelzle v. Fresno County (1958) 159 Cal.App.2d 478 (Hoelzle) for the proposition that “affirmative defenses are only required to put a plaintiff on notice of the affirmative defenses plead.” [1] (Opposition p. 4.) In Hoelzle, the plaintiff filed an action for wrongful death. The defendant’s answer included a general denial and asserted as an affirmative defense that the decedent “ ‘did not exercise ordinary care, caution, or prudence in the premises to avoid the happening of said accident and the said accident and death of [decedent] were directly and proximately caused and contributed to by the negligence in the premises of [decedent].’ ” (Hoelzle, supra, 159 Cal.App.2d at p. 480.) At trial, the plaintiff objected to the defendant’s introduction of evidence and moved for judgment on the pleadings, arguing that the defendant’s answer failed to raise any issue or state a defense. (Ibid.) The trial court overruled the objection and denied the motion. (Ibid.) The jury returned a verdict for the defendant. (Ibid.)
The plaintiff appealed, arguing the defendant’s answer was not sufficient to raise the issue of contributory negligence. (Hoelzle, supra, 159 Cal.App.2d at p. 482.) Affirming, the Court of Appeal observed that “no demurrer was filed to the answer, and if one had been filed and overruled the plaintiff would not be entitled to a reversal of the judgment in the absence of a showing of prejudice.” (Hoelzle, supra, 159 Cal.App.2d at p. 482.) Citing the ruling that pleadings are to be liberally construed (Code Civ. Proc., § 452), the Court of Appeal concluded that “[n]o prejudice appears here since the answer made it perfectly clear what issues the adverse parties must meet. Taken in connection with the complaint, no reasonable person could be in any doubt about the issues to be met. Since there were no eyewitnesses to this accident the precise facts were not known to either party, and this suggests an additional reason why the provision for a liberal construction [Code Civ. Proc., § 452] should be applied here. The appellant was in no way misled and the answer was sufficient to raise the issues of negligence and contributory negligence.” (Hoelzle, supra, 159 Cal.App.2d at p. 483.)
The Court of Appeal in Hoelzle did not squarely address whether the trial court should have sustained a demurrer to the answer. Instead, the Court of Appeal held that, if the plaintiff had filed a demurrer to the answer and the trial court had overruled it, the plaintiff could not have shown prejudice from the ruling. In addition, Hoelzle is factually distinguishable because Defendant has not shown that “there were no eyewitnesses to the accident” or “the precise facts were not known to either party.” (See Hoelzle, supra, 159 Cal.App.2d at p. 483.) Based on the facts presented here, the Court finds that the Defendant is not excused from pleading ultimate facts that inform Plaintiff of the issues she must address in responding to Defendants’ affirmative defenses.
Finally, Defendant argues that its answer “alleges no new matters” and its “affirmative defenses are properly premised on its general denial of all the allegations asserted in Plaintiff’s Complaint.” (Opposition p. 3.) Defendant is mistaken. Affirmative defenses are “new matter” and raise issues “that would otherwise not be in issue under a simple denial.” (Cal. Practice Guide, supra, ¶ 6:430, p. 6-135; see Code Civ. Proc., § 431.30, subd. (b) [“The answer to a complaint shall contain (1) the general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense”].)
The Court sustains Plaintiff's demurrer to the first amended answer with leave to amend.
CONCLUSION
The Court SUSTAINS Plaintiff Judy Lipkin's demurrer to Defendant City of Los Angeles’s first amended answer with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.
[1] Defendant incorrectly cites the case as Hoelvle v.
Fresno County (1958) 159 Cal.App.3d 278.