Judge: Nathan Vu, Case: 2022-01264673, Date: 2022-09-26 Tentative Ruling

Demurrer to Answer

Plaintiff Gordon Barienbrock’s demurrer to the Defendant Ryan Boyajian’s answer is OVERRULED as to the 1st affirmative defense and SUSTAINED without prejudice as to the 2nd to 26th affirmative defenses, with 30 days leave to amend.

Plaintiff Gordon Barienbrock’s request for sanctions or an order to show cause re: sanctions is DENIED without prejudice.

Plaintiff Gordon Barienbrock demurs to the 1st through 26th affirmative defenses asserted in Defendant Ryan Boyajian’s answer.

An answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant and (2) a statement of any new matter constituting a defense. (Civil Proc. Code § 431.30(b).) A new matter is a 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.)

New matters must be specially pleaded and the answer must include allegations of ultimate facts sufficient to prove the defense(s). (See FPI Development, Inc. v. Nakashimi (1991) 231 Cal. App. 3d 367, 384.)

The first affirmative defense contends that the Complaint fails to allege a valid cause of action. This is not a new matter which requires ultimate facts to be pleaded. (See 5 Witkin, Cal. Proc. 5th (2008) Pleading, § 1082, p. 515 [affirmative defense of failure to state claim contradicts essential allegations of the complaint and does not raise new matters, but merely denies them in affirmative form]; Civil Proc. Code , § 430.80 [defendant need not assert defense of failure to state claim].)

The second affirmative defense asserts that the statute of limitations bars Plaintiff’s claim. While Defendant need not assert the facts underlying this defense, he must specify the provision of the Civil Procedure Code upon which the defense is based. (See Civil Proc. Code, § 458.) Defendant fails to do the latter.

As to the 3rd through 26th affirmative defenses, Defendant was required to plead sufficient ultimate facts. Such ultimate facts do not appear on the answer and Defendant did not oppose the demurrer to explain how the answer was compliant with the law.

The answer attacked by the Plaintiff is the first answer filed by the Defendant. Further, it appears that Defendant attempted to file a verified answer to the complaint shortly after the demurrer was filed. Sanctions are therefore not appropriate at this time.

Plaintiff shall give notice of this ruling.