Judge Mark E. Windham, Case 22STLC08346 2023-05-18 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC08346, Date: 2023-05-18 Tentative Ruling

Case Number: 22STLC08346 Hearing Date: May 18, 2023 Dept: 26

Cohen v. Speakes, Jr., et al.

DEMURRER

(CCP §§ 430.31, et seq., 426.30, 428.50)

TENTATIVE RULING:

Plaintiff Shoshana Cohen’s Demurrer to the Answer is OVERRULED AS TO THE THIRD AFFIRMATIVE DEFENSE AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, AND FOURTH THROUGH ELEVENTH AFFIRMATIVE DEFENSES.

ANALYSIS:

Plaintiff Shoshana Cohen (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Jamal Speakes, Jr. on December 15, 2022. Defendant filed an Answer on March 17, 2023.

On March 28, 2023, Plaintiff filed the instant Demurrer to the Answer. Defendant filed an opposition to the Demurrer on April 12, 2023 and Plaintiff replied on May 10, 2023.

Discussion

The Demurrer is supported by a meet and confer declaration showing email communications between the parties’ attorneys. (Demurrer, Cohen Decl., Exhs. 1-4.) This satisfies the meet and confer requirements of Code of Civil Procedure section 430.41.

Substantively, the Demurrer is brought against the Answer for failure to allege sufficient facts as to the first through eleventh affirmative defenses. (Citing Code Civ. Proc., § 430.10, subds. (e), (f).) The Demurrer points out that in order to sufficiently allege an affirmative defense in the Answer, the same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as when pleading the Complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) In other words, 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. (Ibid.) Also, 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.” (Code Civ. Proc., § 431.30, subd. (g).)

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. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., 120 Cal.App. 589, 600, 8 P.2d 560.) This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the Answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the Answer. (Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 600, 8 P.2d 560; Sheward v. Citizens' Water Co., 90 Cal. 635, 639, 27 P. 439; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p. 489.)

(South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.)

The Complaint alleges a single cause of action for general negligence, as follows. On April 20, 2022, Plaintiff authorized Mr. Tomer Tal to use Plaintiff’s vehicle and at 9:30 a.m. Tal was stopped at a red light at the intersection of Tampa Avenue and Roscoe Blvd. (Compl., ¶GN-1.) When Tal’s traffic signal turned green, they proceeded northbound to cross the intersection. (Ibid.) Midway through, Defendant drove through the westbound red light at an exceedingly high speed and struck Plaintiff’s vehicle, causing it flip and land on its roof. (Ibid.) Defendant failed to stop at the red light and yield, and “so negligently, carelessly, recklessly, and unlawfully drove, operated, maintained, conducted, and controlled” their vehicle as to cause the collision with Plaintiff’s vehicle. (Ibid.) Plaintiff sustained damages due to the loss of her vehicle and increase in the rate of interest on a replacement vehicle. (Ibid.)

Plaintiff argues in the Demurrer that the affirmative defenses in Defendant’s Answer do not allege facts sufficient to support the defenses. Specifically, that none of the affirmative defense are alleged “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” The Court finds that the affirmative defenses are alleged as legal conclusions instead of as ultimate facts. Ultimate facts are those facts that support the core elements of a claim, or in this case, a defense. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) The Rutter Guide provides an example of the distinction between legal conclusions and ultimate facts: alleging “defendant drove while under the influence of alcohol” is an ultimate fact in support of a personal injury case, while alleging “defendant drove in violation of California drunk driving law” is a legal conclusion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶6:124.)

For example, the first affirmative defense alleges that Plaintiff “carelessly, recklessly and negligently drove, operated, managed and controlled her automobile” but does not allege any ultimate facts regarding Plaintiff’s conduct in connection with the facts alleged in the Complaint. (Answer, p. 1:24-25.) The Complaint alleges that Plaintiff authorized Mr. Tomer Tal to use her vehicle on April 20, 2022. (Compl., ¶GN-1.) No other conduct by Plaintiff is alleged in the Complaint. The first affirmative defense must allege facts regarding Plaintiff’s authorization to Tal to use the vehicle that support the conclusion of her negligence. Likewise, the remaining affirmative defenses use only conclusory, not factual language. (Answer, pp. 1-3.) Nor does the opposition address the case law cited in the Demurrer regarding the requirement to plead ultimate facts.

The opposition does cite to Code of Civil Procedure section 458, which appears to be an exception to the rule of pleading ultimate facts with respect to the statute of limitations defense. The statute states:

In 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 Answer alleges in the third affirmative defense that each cause of action is barred by Code of Civil Procedure section 335.1. (Answer, p. 2:6-9.) This is all that is required to be pled under Code of Civil Procedure section 458. The third affirmative defense is sufficiently plead.

Regarding Defendant’s argument that negligence may be pled generally, this may be true for the affirmative defenses only if the allegations of negligence in the Complaint are also generally pled. However, where the allegations in the Complaint are more specific, as in this case, the allegations in the Answer must be as well, under the case law cited above. The case on which Defendant relies supports this rule by holding “the defendant is required to plead the facts upon which he relies to support his defense of contributory negligence, and must allege the causal connection between those facts and the injury. But this simply means that a defendant may allege that the plaintiff was negligent in and about those matters alleged in the complaint, and that such negligence proximately contributed to his injury.” (Singer v. Superior Court of Contra Costa County (1960) 54 Cal.2d 318, 323-324 [emphasis added].) The Answer, therefore, must allege facts in reference to those matters alleged in the Complaint. The Answer here fails to do so. Therefore, the Demurrer is sustained as to the all the affirmative defenses in the Answer except the third affirmative defense, to which it is overruled.

Conclusion

Moving party to give notice.