Judge: Michael Shultz, Case: 24STCV05134, Date: 2024-11-14 Tentative Ruling
Case Number: 24STCV05134 Hearing Date: November 14, 2024 Dept: 40
[TENTATIVE] ORDER
SUSTAINING PLAINTIFF’S DEMURRER TO DEFENDANTS’ ANSWER AND GRANTING MOTION TO
STRIKE WITH LEAVE TO AMEND
The complaint
alleges that Plaintiff was subjected to a campaign of harassment and
retaliation because he expressed concerns over Defendants’ food preparation and
storage procedures. Plaintiff alleges claims for assault and battery,
violations of the Fair Employment & Housing Act, wrongful termination in
violation of public policy, and product liability claims.
Plaintiff
demurs to Defendants’ answer on grounds of uncertainty as the 31 affirmative
defenses fail to state any facts. Defendants declined to amend their answer
after the parties met and conferred. The affirmative defense for “unknown other
defenses” should be stricken.
Plaintiff
timely served the demurrer electronically. Defendants did not file an
opposition.
A demurrer reaches defects that appear on
the face of the pleading. The court considers the allegations and matters that
are subject to judicial notice. All facts are accepted as true. (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 837–838.) A demurrer tests the legal sufficiency of
the allegations. It does not test their truth, the plaintiff’s ability to prove
them, or the possible difficulty in making such proof. (Saunders at 840.)
The sufficiency of an answer
depends on the complaint to which it purports to answer. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) Therefore, the answer does not stand
alone; rather it is read with reference to the facts alleged in plaintiff’s
complaint. The pleading must “minimally advise the opposing party of the nature
of the defense even if defective as conclusory.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385.)
The answer is liberally
construed with a view to substantial justice between the parties. The answer
should make clear what issues the adverse parties must meet such that when
taken in connection with the complaint, “no reasonable person could be in any doubt
about the issues to be met.” (Hoelzle v. Fresno County (1958) 159 Cal.App.2d 478, 483.)
A motion to
strike is limited to matters that appear on the face of the pleading or on any
matter of which the court can take judicial notice. (Code
Civ. Proc., § 437.) The court may
strike out any irrelevant, false, or improper matter inserted in any pleading;
or strike all or any part of the pleading not drawn or filed in conformity with
the laws of California, a court rule, or an order of the court. (Code Civ. Proc. §436 subd. (a)-(b).)
III.
DISCUSSION
A
demurrer to an answer is limited to the following: failure to state facts sufficient
to constitute a defense, uncertainty, and failure to allege whether a contract
is written or oral. (Code
Civ. Proc., § 430.20.) A pleading is
required to assert general allegations of ultimate fact. Evidentiary facts are
not required. (Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) The
answer must be read in connection with the complaint, and the allegations must
be liberally construed. (Hoelzle
v. Fresno County (1958) 159 Cal.App.2d 478, 483; FPI, supra
at 384.)
Some
of the affirmative defenses do not assert “new matter.” The critical inquiry when a plaintiff demurs to an answer is whether
the answer raises a defense to plaintiff’s stated cause of action. (Timberidge Enterprises, Inc. v. City of
Santa Rosa (1978) 86
Cal.App.3d 873, 880.) The
demurrer raises the objection that the answer does not state facts sufficient
to constitute a defense. (Id.) Therefore,
the 1st affirmative defense for failure to state a claim is an
objection raised by demurrer. The answer to a complaint must include any
statement of any new matter constituting a defense. (Code Civ. Proc., §
431.430(b)(2).)
“New matter” refers to
“something relied on by a defendant which is not put in issue by the plaintiff.
[Citation.] Thus, where matters are not responsive to essential allegations of
the complaint, they must be raised in the answer as “new matter.” (Walsh v. West Valley Mission Community
College Dist. (1998) 66
Cal.App.4th 1532, 1546.) Thus,
“new matter” is “any ground urged in avoidance of the complaint, ie., some
independent reason why plaintiff should be barred from recovery, even if
everything alleged in the complaint was true.” (Walsh at 1546 [“Thus,
where matters are not responsive to essential allegations of the complaint,
they must be raised in the answer as 'new matter.' [Citation.] Where,
however, the answer sets forth facts showing some essential allegation
of the complaint is not true, such facts are not 'new matter,' but only a
traverse.”].) In contrast, general denials place material
allegations of the complaint at issue.
The
following affirmative defenses do not raise new matter but rather deny
allegations of the complaint or otherwise respond to essential allegations of
the complaint. They do not raise an affirmative defense unless they are based
on facts independent of the complaint that bar recovery.
1 Failure to state a cause of action
18 No damage
19 Uncertainty
23 Failure to exhaust administrative remedies
25 No retaliation
26 No discrimination
28 Failure to allege facts to support punitive
damages
29 No right to attorney’s fees
30 No emotional distress
The
remaining affirmative defenses assert new matter and must be supported by facts.
(Department
of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294 ["Affirmative
defenses must not be pled as ‘terse legal conclusions,’ but ‘rather ... as
facts ‘averred as carefully and with as much detail as the facts which
constitute the cause of action and are alleged in the complaint.” ’ [Citation.]
‘A party who fails to plead affirmative defenses waives them.’”].)
The
31st affirmative defense for “unknown other defenses” is neither an
affirmative defense nor a denial of the allegations and is stricken as improper.
IV.
CONCLUSION
Based on the foregoing, the demurrer to
Defendant’s answer is SUSTAINED in full. Plaintiff’s motion to strike the 31st
affirmative defense is GRANTED. Leave
to amend is ordinarily given if there is a reasonable possibility that the
defect can be cured. (Association of Community Organizations for Reform Now v. Department
of Industrial Relations (1995) 41
Cal.App.4th 298, 302.) Accordingly, the court grants
Defendants 30 days leave to file an amended answer.