Judge Lynne M. Hobbs, Case Number: 22STCV12232, Date: 2023-08-18 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV12232, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV12232 Hearing Date: January 4, 2024 Dept: 30

VIVI DEVEREAUX vs MR. FURLEYS BAR, LLC, et al.

TENTATIVE

Plaintiff’s demurrer to the answer is OVERRULED. Defendant Mr. Furleys, LLC to give notice.

Legal Standard

Plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc. § 430.20.) Code of Civil Procedure section 431.30(b) provides that the answer to a complaint must contain the general or specific denial of the material allegations of the complaint controverted by defendant and a statement of any new matter constituting a defense. (Code Civ. Proc. § 430.30(b).)

Affirmative defenses are pled based upon facts demonstrating that no cause of action exists, notwithstanding the truth of the complaint’s allegations. (Walsh v. W. Valley Mission Cmty. College Dist. (1998) 66 Cal.App.4th 1532, 1542 n.3.) “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as new matter. Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not new matter, but only a traverse.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725 (State Farm).) A traverse is a form of a specific denial of the allegations of the complaint, and it need not be specifically alleged. (Hill v. Smith (1865) 27 Cal. 475, 479 [“Any form of denial which fairly meets and traverses the allegation is admissible.”]; see also State Farm, supra, 228 Cal.App.3d at pp. 725-726 [“Because advice of counsel is directed to an essential element of a plaintiff's cause of action [of bad faith and malice in claims handling], it does not constitute new matter and need not be specifically alleged.”].)

The same pleading of ultimate facts in support of such new matter, rather than legal conclusions, is required as in pleading the complaint. As a general rule, the answer must allege facts constituting the affirmative defense in the same manner as a complaint must do for a cause of action. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) However, some vagueness may exist in a defendant’s answer because most defendants do not have the ability to prove their defenses at the initial answering phase, which usually occurs before discovery. Additionally, a defendant has a significant incentive to plead every affirmative defense because a party waives defenses that are not pled. As a result, even where a defense is defectively pled, it may be allowed if the defendant’s pleading gives sufficient notice to enable the plaintiff to prepare to meet the defense, in part because unpled defenses are waived. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) Unlike a demurrer to complaint, “the defect in question need not appear on the face of the answer” as “[t]he 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.” (Id.)

Meet and Confer

The demurrer is accompanied with the declaration of Alexander J. Zeesman, which does not satisfy the meet and confer requirements. A meet and confer under section 430.41, subdivision (a) must be by telephone or in person. Here, it was sent by email. Further, Plaintiff’s counsel failed to identify each affirmative defense and the reason why Plaintiff’s counsel believed these affirmative defenses to be deficient despite being asked to do so by defense counsel. Rather, Plaintiff’s counsel generally argued the defenses all fail to state sufficient facts. Nevertheless, because the failure to meet and confer is not a basis for overruling the demurrer (see Code Civ. Proc., § 430.41, subd. (a)(4)), the Court will address the merits of the demurrer, but admonishes Plaintiff’s counsel that in the future, he should properly meet and confer.

Discussion

Plaintiff demurs to Defendant’s answer, arguing that the affirmative defenses fail to state sufficient facts and the pleading is uncertain.

The complaint alleges that Plaintiff was lawfully at Defendants' place of business when he was physically attacked by unknown individuals and sustained serious bodily injuries including a facial fracture.

Plaintiff broadly argues that without pleading a single supporting fact, Defendant alleges that Plaintiffs failed to state facts to constitute a cause of action; Plaintiff failed to mitigate his damages; Plaintiff action is barred by C.C.P. 335.1; that Plaintiff assumed risk; that there is no liability as the danger which existed at the time and place was a danger that would have been reasonably apparent; that plaintiff failed to exercise reasonable and ordinary care, caution, or prudence to avoid the alleged incident; and that plaintiff’s damages are barred by comparative fault and contributory negligence. Plaintiff contends it is not appropriate for Defendant to make such allegations without providing a single fact, such as the identity of the third party(ies) who allegedly caused Plaintiffs damages or what actions Plaintiffs have allegedly failed to take to mitigate their damages.

Defendant contends that when liberally construing the affirmative defenses, and reading them together with the allegations of the complaint, it has sufficiently pled each affirmative defense to put Plaintiff on notice of the defense alleged.

Here, the affirmative defenses identified by Plaintiff in this demurrer are either traverses that do not need to plead new matter, or state general allegations of ultimate fact when read together with the complaint. The sufficiency of an answer depends on the complaint to which it purports to answer. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) The difference between conclusions and ultimate facts is not clear, with the latter being described as a “slippery term.” It involves a matter of degree, but what is important is that the pleading as a whole contain sufficient facts to put the other party on notice of the basis for the claim. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal. App. 4th 1076, 1098-1099; Yield Dynamics, Inc. v. Tea Systems Corp. (2007) 154 Cal.App.4th 547, 558.) Defendant’s answer responds to the facts Plaintiff has put at issue in the complaint, and puts Plaintiff on notice of the basis for its defenses. Therefore, the answer does not stand alone, and is not unsupported by factual allegations as Plaintiff contends, rather it is read with reference to the facts alleged in Plaintiff’s complaint. The Court notes that Plaintiff’s complaint states Plaintiff was attacked by unknown individuals, yet Plaintiff expects Defendant to identify these individuals in its answer.

Accordingly, the court OVERRULES the demurrer to these affirmative defenses on this basis.

Uncertainty

Lastly, the Court notes that Plaintiff also demurs on the basis that the answer is uncertain. 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 California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

The court finds that the answer is not so bad that Plaintiff cannot reasonably respond. Further, Plaintiff does not identify how the identified allegations render the Answer uncertain. Accordingly, Plaintiff fails to demonstrate that the Answer is defective on this basis, and the court OVERRULES this basis for the demurrer. To the extent there is any uncertainty or ambiguity as to the scope of Defendant’s answers, such ambiguity may be clarified under modern discovery procedures. (See Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)