Judge: Michael Small, Case: 24STCV03235, Date: 2025-04-07 Tentative Ruling
Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.
Case Number: 24STCV03235 Hearing Date: April 7, 2025 Dept: 57
Pending before the Court is Plaintiff's demurrer to Defendant's First Amended Answer (the "FAA"). The Court is overruling the demurrer.
As a threshold matter, the Court rejects Defendant's contention that the demurrer contravenes the stay imposed by the parties' stipulation and corresponding Court order of November 6, 2024. The stay that was entered applies only to formal discovery, not to other facets of litigation, including the demurrer. Nor does Defendant's filing of a motion to compel arbitration, which is set for hearing next month, automatically stay the litigation pending that hearing. Defendant did not ask for such a stay in the motion.
Because the demurrer is not barred by the stay, the Court has to address the demurrer's merits. Having done so, the Court is overruling the demurrer.
The Court finds nothing defective about the FAA, which resembles answers that the Court sees every day. In the Court's view, none of the grounds Plaintiff advances supports the demurrer.
Plaintiff states that "the leading treatise on civil discovery practice recommends using the demurrer to eliminate 'boilerplate affirmative defenses.' (Demurrer at p. 0 [sic], quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7.35.1.) That treatise makes no such "recommendation." All it says is that a "demurrer can be used to eliminate 'boilerplate' affirmative defenses," and then notes that "such demurrers are very rare. . . ." (Ibid., emphasis added.)
Plaintiff overreads FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, and Rodriguez v. Cho (2015) 236 Cal.App.4th 742. Neither case actually involved a demurrer to an answer. And the statements in both cases about demurrers to answers were specific to the particular contexts in which the cases came to the Court of Appeal — an appeal from a grant of a motion for summary judgment in FPI and a denial of a motion to vacate default judgment on the ground that the judgment was procured through extrinsic fraud in Rodriguez.
