Judge: Mark A. Young, Case: 24SMCV01719, Date: 2024-11-26 Tentative Ruling
Case Number: 24SMCV01719 Hearing Date: November 26, 2024 Dept: M
CASE NAME: Cassell v. Findley
CASE NO.: 24SMCV01719
MOTION: Demurrer to the Answer
HEARING DATE: 5/21/2024
LEGAL STANDARD
In
addition to denials, the answer should contain any and all affirmative defenses
or objections to the complaint that defendant may have, and that would
otherwise not be in issue under a simple denial.¿Such defenses or objections
are “new matter.”¿(CCP § 431.30(b).) Generally, a defendant bears the burden of
proving “new matter” and, as such, must be specifically pleaded in the
answer.¿(California Academy of Sciences v. County of Fresno (1987) 192
Cal.App.3d 1436, 1442.) “The phrase ‘new matter’ refers to something relied on
by a defendant which is not put in issue by the plaintiff.”¿(Walsh v. West
Valley Mission Community College District (1998) 66 Cal.App.4th 1532,
1546.)¿Where the answer sets forth facts showing some essential allegation of
the complaint is not true, such facts are not new matter but are denials. (Ibid.)¿
The
same pleading of “ultimate facts” rather than evidentiary matter or legal
conclusions is required as in pleading a complaint.¿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. (FPI Development, Inc. v.
Nakashimi (1991) 231 Cal.App.3d 367, 384.) The various affirmative defenses
must be separately stated and must refer to the causes of action to which they
relate “in a manner by which they may be intelligently distinguished.”¿(CCP §
431.30(g).)
The
allegations of the pleading demurred to must be regarded as true.¿ (South
Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.)¿All that is
necessary against a demurrer is that, upon consideration of all the facts
stated, it appears that the party whose pleading is attacked by such a demurrer
is entitled to any relief at the hands of the court against his adversary.¿(Id.
at 733.)¿ When considering a demurrer to answer, 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.)¿
“[T]he demurrer to the answer admits all issuable facts pleaded therein and
eliminates all allegations of the complaint denied by the answer.”¿ (Ibid.)¿
“Liberality
in permitting amendment is the rule, if a fair opportunity to correct any
defect has not been given.” (Angie M. v. Superior Court (1995) 37
Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny
leave to amend where there is any reasonable possibility that plaintiff can
state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
349.) The burden is on pleader to show¿in what manner¿they can amend the
pleading, and¿how¿that amendment will change the legal effect of the
pleading.¿(Id.)
MEET
AND CONFER
Before filing a
demurrer or motion to strike, the moving party must meet and confer in person
or by telephone with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (CCP §§ 430.41,
435.5.) The parties met and conferred prior to the filing of the demurrer.
(Decl., ¶¶ 3-7.)
ANALYSIS
Plaintiff
Michael Cassell demurs to each of the sixteen affirmative defenses stated in
Defendant Roger Findley’s Answer.
Affirmative Defenses nos. 1-2, 10, 15-16
As set forth
below, the first, second, tenth, fifteenth and sixteenth affirmative defenses
are facially not “new matters.” Therefore, the demurrer to these affirmative
defenses will be sustained.
In the first defense, Defendant
claims that the Complaint fails to state facts sufficient to constitute a cause
of action This is not a basis for an affirmative defense, because it relies
entirely on the allegations of the complaint. It is inherently not a “new
matter.”
The second, tenth and
fifteenth defenses are also not new matters. In the second defense, Defendant
asserts that he is not at fault and did not engage in any conduct, act and/or
omission as that was a cause and/or substantial contributing factor to
Plaintiff’s alleged claims. In the tenth defense, Defendant alleges that he “acted
within the bounds of the law, in good faith, and with due care.” In the
fifteenth defense, Defendant claims that Plaintiff’s damages were caused or
made worse by another cause and that Defendant is therefore not responsible for
damages. The defenses merely contend that the allegations of
the complaint are not true and are essentially denials of liability.
In the sixteenth defense, Defendant
claims that it may have additional affirmative defenses available and reserves
the right to state additional defenses. This is not a recognized defense.
Accordingly, the
demurrer is SUSTAINED without leave to amend as to the first, second tenth, fifteenth,
and sixteenth defenses.
Affirmative Defense no. 3
Defendant presents the
defenses of “Failure to Mitigate.”
A plaintiff who suffers damage because of either a breach of
contract or a tort has a duty to take reasonable steps to mitigate those
damages and will not be able to recover for any losses that could have been
thus avoided. (Shaffer v. Debbas (1993) 17 Cal.App.4th 33, 41.)
“Generally, ‘[a] person injured by the wrongful act of another is bound to
reasonable care and diligence to avoid loss or minimize the resulting damages
and cannot recover for losses which might have been prevented by reasonable
efforts and expenditures on his part.” (Hunter v. Croysdill (1959) 169
Cal.App.2d 307, 318.) This rule of mitigation of damages comes into play when
the event producing injury or damage has already occurred and it then has
become the obligation of the injured or damaged party to avoid continuing or
enhanced damages through reasonable efforts. (Valle de Oro Bank v. Gamboa
(1994) 26 Cal.App.4th 1686, 1691.)
The Answer alleges that Plaintiff “failed to take reasonable steps
and make reasonable expenditures to reduce Plaintiff’s claims, damages, losses.”
(Aff. Def. ¶ 3.) Taken together with the admissions and denials of Plaintiff’s complaint,
the Answer states the requisite ultimate facts of a mitigation defense. No
greater specificity is required at the pleading stage.
Accordingly, the demurrer is OVERRULED as to this defense.
Affirmative
Defenses Nos. 4, 5 and 9
Defendant presents the
defenses of “Negligence by Plaintiff,” “Intentional Conduct by Plaintiffs,”
“Assumption of the Risk,” “Contributory Negligence/Conduct of Third Parties”
and “Proposition 51.” The Court takes these defenses as claims of comparative
fault and apportionment.
Comparative fault principles are properly invoked whenever
plaintiff's conduct contributes to the overall harm emanating from the injury.
(Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1011.)
Awardable damages must be proportionately reduced to reflect the percentage of
plaintiff’s “fault.” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804,
828–829.) The trier of fact determines what percentage of the fault that caused
the injuries was attributable to plaintiff and then reduces gross damages by
that percentage. Thus, some amount of damages is recoverable even if
plaintiff's negligence is equal to or greater than defendants. (Zavala v.
Regents of Univ. of Calif. (1981) 125 Cal.App.3d 646; CACI 405, 3960; BAJI
14.90, 14.91.) The trier of fact has broad discretion in allocating fault and
may consider all relevant evidence on the question in order to arrive at an
“equitable apportionment or allocation of loss.” (Brandon G. v. Gray
(2003) 111 Cal.App.4th 29, 40-41.)
The Answer alleges that “Plaintiff’s own conduct, lack of
reasonable care, and contributory fault in and about the matters alleged in
Plaintiff’s Complaint was the sole and proximate cause of the happening of the
accident and the loss and damages complained of, if any there were, and said
conduct, lack of reasonable care, and comparative fault on the part of the
Plaintiff bars Plaintiff’s recovery” or alternatively “diminished… in
proportion to the amount of fault attributed”. (Aff. Def. ¶ 4.) The Answer also alleges
Plaintiff “knew the hazards involved in Plaintiff’s actions and, knowing the
probable consequences thereof, did place himself in a position of danger, and
freely and voluntarily participated in all of the activities alleged herein,
and thereby assumed the risks attendant thereto… reduc[ing] the right of
recovery by that amount which said negligence contributed to this incident, as
set forth under the doctrine of comparative negligence.” (¶ 5.) Defendant also
alleges that the claimed damages were proximately contributed to by other
persons failing to conduct themselves in a manner ordinarily expected of
reasonably prudent persons. (¶¶ 7, 12.) Further, Plaintiff willfully, wantonly,
recklessly, and with an unreasonable disregard for the safety of himself and of
others, acted, conducted, and maintained himself so as to cause and contribute
in some degree to the alleged incident” and any damages alleged are imputed to
Plaintiff. (¶ 9.)
Defendant asserts that Plaintiff's negligent and/or intentional conduct
contributed to her overall harm. Defendant also establishes that other parties’
negligent conduct contributed to the claimed damages. Such allegations
establish the ultimate facts of comparative fault and apportionment. No further
specificity is required.
Accordingly, the demurrer is OVERRULED as to these defenses.
Affirmative
Defense No. 6
Defendant presents a “consent” defense. Consent
to a tort normally vitiates any wrong. (Barbara A. v. John G., (1983) 145
Cal. App. 3d 369, 375; see Civ. Code §3515.) Defendant only presents the terse legal conclusion that “Plaintiff
consented, impliedly or expressly, to the act as allegedly conducted by”
Defendant. (¶ 6.) There are no facts demonstrating Plaintiff’s consent
to any acts.
Accordingly, the demurrer is SUSTAINED with leave to amend as to
the sixth affirmative defense.
Affirmative
Defense No. 8
Defendant alleges that the Complaint is barred by Code of Civil
Procedure section 335.1. This is sufficient. Code of Civil Procedure section
458 provides that a statute of limitations affirmative defense may be pleaded by
without any accompanying facts. Accordingly, the demurrer is OVERRULED.
Affirmative Defense no. 11
Defendant alleges the terse
conclusion that the complaint is “barred by the Doctrine of Laches.” “The
defense of laches requires unreasonable delay plus either acquiescence in the
act about which plaintiff complains or prejudice to the defendant resulting
from the delay.” (Pacific Hills Homeowners Assn. v. Prun (2008)
160 cal.App.4th 1557, 1564-65.) Here, there are no allegations showing an
unreasonable delay, acquiescence, or prejudice.
Accordingly, the demurrer is
SUSTAINED with leave to amend.
Affirmative Defense No. 13
Defendant presents the defense of “Bar to Recovery” due to insurance
payments. The Answer alleges that if Plaintiff received payment of all or a
portion of his damages and expenses, such as medical expenses pursuant to a
policy of insurance which pays said medical expenses, that Plaintiff is barred
from again recovering those same expenses. (¶ 13.) Defendant cites no authority
in support of the claimed “bar to recovery” due to insurance payments. Accordingly,
the demurrer is SUSTAINED without leave to amend.
Affirmative Defense No. 14
Defendant presents the
defense of waiver. “Waiver” is the intentional relinquishment of a known right
after knowledge of the facts. A waiver depends only upon one party's intention;
it does not require any act or conduct by the other party. (Gould v.
Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179; Hoopes v.
Dolan (2008) 168 Cal.App.4th 146, 162.)
Defendant fails to allege the ultimate fact of a waiver. Defendant
alleges that “Plaintiff has waived his rights to recovery and/either told, or
led this Defendant to believe, that Plaintiff would not sue Defendant.” (¶ 14.)
Even if believed, the fact that Plaintiff told or led Defendant to believe that
he will not be sued does not equate to an “intentional relinquishment” of a
“known right” without further facts.
Accordingly, the demurrer is SUSTAINED with leave to amend.
Conclusion
The demurrer is SUSTAINED
with leave to amend as to affirmative defenses nos. 6, 11, and 14; SUSTAINED
without leave as to nos. 1-2, 10, 15-16; and OVERRULED as to
the remainder.
Defendant
has 20 days to file an amended answer.