Judge: Martha K. Gooding, Case: 2021-01229518, Date: 2022-12-19 Tentative Ruling

1) Demurrer to Answer

2) Demurrer to Answer

The Court OVERRULES the Demurrers by Plaintiffs Eugene F. Roberts, JSU Investments, Inc. dba Orange County Office Cleaning to the Answers to the First Amended Complaint filed by Defendants Nelson Partners, LLC and Patrick Nelson, respectively.

Each of the Answers at issue contains 28 separate affirmative defenses.  Rather than demur to specific affirmative defenses, Plaintiff demurred to each Answer as a whole.

Although a demurrer may be taken to the entire pleading (CCP § 430.50), most demurrers are directed at specified causes of action. But if there are several causes of action/affirmative defenses, a demurrer to the entire complaint is properly overruled if any one of the claims or defenses is properly stated. (See e.g. Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 CA3d 24, 36; Shook v. Pearson (1950) 221 P.2d 757, 99 Cal.App.2d 348, a demurrer which attacks entire pleading should be overruled if one of the counts therein is not vulnerable to the objection.)

In general, whenever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”) and thus must be specially pleaded in the answer. (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses].) A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; 5 Witkin, Cal. Proc. 5th (2008) Pleading, § 1082, p. 515.)

New matter is matter alleged for the first time in the answer, creating a new issue in the case not presented by the complaint. (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543; Coles v. Soulsby (1862) 21 Cal. 47, 50 (“new matter” is “that matter which the defendant must affirmatively establish”).

Here, minimally, the first affirmative defense for “No Cause of Action” and the twenty-second affirmative defense for failure to state facts to assert punitive damages are not new matter and do not require specific facts to be pled.  Thus, because the Notice of Demurrer/Demurrer is directed to the entire Answer for each Defendant, the Demurrers are overruled in their entirety

Plaintiffs are ordered to give notice of this Order.

If all parties wish to submit on the tentative ruling, they shall promptly notify the Court’s clerk by telephone.

If any party wishes oral argument on the tentative, the argument is continued to Thursday, January 5, 2023 at 1:30 p.m. due to a conflict on the Court’s calendar.