Judge: Mark H. Epstein, Case: 24SMCV00386, Date: 2024-05-22 Tentative Ruling

Case Number: 24SMCV00386    Hearing Date: May 22, 2024    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND as to the second, third, fourth, fifth, sixth, eighth, ninth, eleventh, eighteenth affirmative defenses.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the first, seventh, thirteenth, nineteenth affirmative defenses and the “Additional” defenses.

The demurrer is OVERRULED as to the tenth, twelfth, fourteenth, fifteenth, sixteenth, seventeenth (first), seventeenth (second) affirmative defenses and the demurrer to the answer.

This is an ADA case.  Plaintiff sued and defendant answered.  Plaintiff demurs to the answer and the affirmative defenses.  As to the answer itself, plaintiff asserts that the answer is not verified and that it ought to admit more.  Turning to the verification, Code of Civil Procedure section 446 allows an attorney to verify a pleading where the client is out of the county (that’s “county,” not “country”).  This relic of a bygone era made a lot of sense when one had to rely on Pony Express to get a signed verification across county lines.  That might have been tough in some of the larger counties.  It makes no sense today.  But having said that, it remains the law.  Therefore, the verification complies with the code.  As to whether the denials are true, that is not the office of a demurrer.  Plaintiff might later have some fun with denials that turn out to be false, but at this stage the court is not going to adjudicate the merits of a denial.

Plaintiff also asserts that the affirmative defenses are not well pled.  Most litigators do not know one even can demur to an answer, let alone that some facts must be alleged for the affirmative defenses.  But that is in fact the law; it is often not enough to state the affirmative defense and stop.  Further, an affirmative defense is one that admits the truth of the complaint’s allegations and admits that plaintiff has made out its case in chief but asserts that the defendant should prevail even so.  The statute of limitations is a good example.  Even if everything plaintiff says is true, plaintiff still loses because plaintiff waited too long.  Failure to plead facts sufficient to state a cause of action is not an affirmative defense technically because the assertion is that plaintiff has not made out its case in chief.

The first affirmative defense is failure to state a claim, which is not an affirmative defense.  The second affirmative defense is unclean hands.  However, there are no facts alleged that would establish the defense.  Thus, it fails for lack of alleging sufficient facts.  The third affirmative defense is laches.  This is an equitable defense stating that the plaintiff waited too long to sue and that the delay caused prejudice.  It is different than the statute of limitations, which requires no showing of prejudice.  To establish laches, defendant needs to state why plaintiff waited too long and how defendant was prejudiced.  No facts are alleged.  The fourth affirmative defense is offset.  That is a defense that reduces plaintiff’s judgment by an amount plaintiff owes to the defendant.  However, there is nothing that suggests that plaintiff owes defendant anything.  Defendant must set forth the nature of the offset.  The fifth affirmative defense is privilege.  The court has no idea what that could mean.  The claim is that the cause of action is barred by privilege, which is the litigation privilege.  That would suggest that defendant claims that plaintiff is suing based on some litigation conduct.  The court cannot fathom how that could be and there is nothing in the complaint that would suggest an answer.  The sixth affirmative defense is excuse.  The court has no idea what defendant is claiming here.  The seventh affirmative defense is lack of standing.  But that is not an affirmative defense.  Plaintiff must establish standing as part of the case in chief.  The eighth affirmative defense is failure to mitigate.  This is sufficient to the extent that plaintiff seeks actual damages, but it is no defense to statutory damages.  In its papers, plaintiff suggests that no actual damages are sought and therefore the defense is inapplicable.  Were it applicable, defendant must at least hint at how plaintiff failed to mitigate.  The ninth affirmative defense is estoppel.  That is an affirmative defense, but it requires defendant to allege the conduct in which plaintiff engaged that led defendant to act or refrain from acting in a way that has caused prejudice.  The tenth affirmative defense is release and waiver.  That is probably adequately alleged.   The eleventh affirmative defense is judicial estoppel.  That requires some additional detail.  The twelfth affirmative defense is preemption.  The court is not sure that is an affirmative defense, but it might be, and it is adequately alleged.  The thirteenth affirmative defense is CCP 128.5 and 128.7.  Those are not affirmative defenses.  The fourteenth affirmative defense is illegality.  The argument is that to perform the improvements plaintiff demands is illegal under City law.  That is adequately alleged. The fifteenth affirmative defense is ready achievability.  The claim is that compliance is not readily achievable.  The court is not sure this is an affirmative defense, but it might be.  The sixteenth affirmative defense is “De Minimis Violations.”  The theory is that the violations do not materially impair plaintiff’s use.  That does not strike the court as an affirmative defense, but it might be.  The seventeenth affirmative defense is “Not Alterations,” in which defendant asserts that plaintiff is not seeking alterations.  That might or might not be an affirmative defense.  The second seventeenth affirmative defense is “To the Maximum Extent Feasible.”   The thrust of this is that the claims are barred because this is the best that can be done.  Again, that might or might not be an affirmative defense.  The eighteenth affirmative defense is “Good Faith Access,” which alleges that defendant has acted in good faith.  That requires more facts.  The nineteenth affirmative defense is “Not Readily Achievable,” which is the same as the fifteenth affirmative defense.  The “Additional Affirmative Defenses” is improper.

Defendant has 10 court days leave to amend.

The court suggests that the parties do a better job of meeting and conferring and filing motions that might matter more than this one.  The court has lots to do every day.