Judge: Peter A. Hernandez, Case: 23PSCV01928, Date: 2023-10-05 Tentative Ruling

Case Number: 23PSCV01928    Hearing Date: October 5, 2023    Dept: K

Plaintiff Luis Angel Espinoza’s Demurrer to the Answer Filed by Defendants County of Los Angeles and Ray Andrew Gurango is OVERRULED in part (i.e., as to the first, second and fourteenth affirmative defenses), SUSTAINED with leave in part (i.e., as to the third through thirteenth and fifteenth through twenty-first affirmative defenses) and SUSTAINED without leave in part (i.e., as to the twenty-second affirmative defense).

Background   

Plaintiff Luis Angel Espinoza (“Plaintiff”) alleges that he sustained injuries in a July 15, 2021 automobile collision.

On June 28, 2023, Plaintiff filed a complaint, asserting a cause of action against County of Los Angeles (“County”), Ray Andrew Gurango (“Gurango”) and Does 1-10 for:

1.                  Negligence

On August 24, 2023, County and Gurango filed a cross-complaint, asserting causes of action against Pedro Adrio and Roes 1-50 for:

1.                  Declaratory Relief

2.                  Apportionment of Fault

3.                  Implied Indemnity

4.                  Total Equitable Indemnity

A Case Management Conference is set for December 4, 2023.

Legal Standard

“The answer to a complaint shall contain: (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (Code Civ. Proc., § 431.30, subd. (b).)

“Under Code of Civil Procedure section 431.30, subdivision (b)(2), the answer to a complaint must include ‘[a] statement of any new matter constituting a defense.’ The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ 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.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)

A demurrer to an answer may be made upon any one or more of the following grounds: (1) The answer does not state facts sufficient to constitute a defense; (2) The answer is “uncertain,” i.e., ambiguous or unintelligible; (3) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. (Code Civ. Proc., § 430.20.)

Discussion

Plaintiff demurs to the first through twenty-second affirmative defenses in County’s and Gurango’s answer.

The affirmative defense of failure to state cause of action (i.e., first affirmative defense) do not raise any new matter, but are merely responsive to the allegations pleaded by Plaintiff. Plaintiff’s demurrer to same is overruled.

The second affirmative defense (i.e., statute of limitations) is authorized by Code of Civil Procedure § 458, which merely requires setting forth the applicable code section when pleading the statute of limitations. Plaintiff’s demurrer to same is overruled.

The affirmative defenses of fault of others (i.e., third affirmative defense), contributory fault (i.e., fourth affirmative defense), superceding cause (i.e., fifth affirmative defense), estoppel (i.e., seventh affirmative defense), failure to mitigate damages (i.e., eighth affirmative defense), waiver (i.e., ninth affirmative defense), laches (i.e., tenth affirmative defense), unclean hands (i.e., eleventh affirmative defense), acts of God (i.e., twelfth affirmative defense), consent (i.e., thirteenth affirmative defense), knowing exposure to conditions (i.e., fifteenth affirmative defense), notice (i.e., sixteenth affirmative defense), assumption of the risk (i.e., seventeenth affirmative defense), no opportunity to cure (i.e., eighteenth affirmative defense), peculiarities of Plaintiff (i.e., nineteenth affirmative defense), government immunity (i.e., twentieth affirmative defense) and claims variance (i.e., twenty-first affirmative defense) all raise new matter; as such, Plaintiff’s demurrer to same is sustained, with leave given to amend.

Civil Code § 1431.2 (i.e., the sixth affirmative defense) does not constitute new matter, but applies whenever liability for personal injury, property damage, or wrongful death is based upon principles of comparative fault. Plaintiff’s demurrer to same is sustained, with leave given to amend.

The defense of “no speculative or future loss recovery” (i.e., fourteenth affirmative defense) is not properly an affirmative defense but instead denies part of Plaintiff’s damages allegations. Plaintiff’s demurrer to same is overruled.

County’s and Gurango’s twenty-second affirmative defense (i.e., reserved defenses) is not an “affirmative defense;” rather, it is a statement that “Defendants reserve the right to assert additional defenses that become apparent in the future.” This is an improper attempt at requesting an amendment rather than a defense.  Amendments may be requested from the court; they are not reserved on an answer. (Code Civ. Proc., § 473, subd. (a).) The demurrer, then, is sustained without leave.