Judge: Mark H. Epstein, Case: 24SMCV03654, Date: 2025-02-19 Tentative Ruling

Case Number: 24SMCV03654    Hearing Date: February 19, 2025    Dept: I

This is a demurrer to the answer.  Although rare, they are proper.  Often the defense will view such a demurrer as a waste of time, and often it is.  But not always, for it does sometimes cause the defense to think about what it really wants to be at issue in the case.  In any event, accusations by the defense of improper motive are not well taken and are irrelevant to the court’s decision making process.  That is especially so in that much of the demurrer is actually correct legally; defendant would have been better off amending the answer to meet the issue and be done with it.

The court is not going to wax long on this motion.  The general rule is that an answer, like a complaint, must set forth the ultimate facts that give rise to the affirmative defenses.  Often, those facts need be little more than the recitation of the ultimate fact, but sometimes additional specificity is required, often in the case of equitable defenses.

Here, the court agrees with plaintiff that having “placeholder” defenses is improper.  The court understands the desire to keep the numbering, but that does not mean that one can allege a fake defense.  The demurrers as to the “placeholder” defenses are SUSTAINED WITHOUT LEAVE TO AMEND.

As to estoppel, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  The answer needs to set forth the basis for the estoppel claim—what is the action plaintiff took upon which the defendant relied to its detriment and what was the detriment.  The court cannot glean it from the answer, but that is what must be pled.

As to consent, the demurrer is OVERRULED.  This legal defense requires little by way of factual predicate.  It is enough to allege that the plaintiff consented to the allegedly wrongful act.  The details surrounding the consent can be determined in discovery.

As to waiver, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  This is a legal defense, not an equitable one.  Even so, there needs to be some fact alleged that specifies what the waiver was.  Not much more than that is needed, but that much is needed.

As to laches, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  The answer needs to set forth why the delay was unreasonably long and what the prejudice is that defendant suffered.

As to unclean hands, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  The answer needs to say what the conduct was that rendered plaintiff’s hands unclean.

As to standing, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  Standing is an element of plaintiff’s case in chief.  As such, a lack of standing generally is not an affirmative defense.  If there is some less obvious reason for a lack of standing—such as that plaintiff assigned the rights or something—then it would need to be alleged.  Given that, defendant ought to consider what it is claiming.  If the defense would like to amend to allege such an issue, it may do so.

As to the ADA and Unruh defenses, the demurrer is OVERRULED.  The court understands the issues that are being raised here.  While plaintiff might well believe that these acts will not cover the claims made, the defenses are enough to survive the demurrer stage.

Finally, as to the FEHA defense, the court is inclined to OVERRULE the demurrer for reasons similar to the ADA and Unruh defenses.

Defendant has 30 days leave to amend.

The case is close enough to at issue that the court intends to go forward with the CMC.