Judge Peter Wilson, Case 2021-01206884 2023-08-10 Tentative Ruling

Judge: Peter Wilson, Case: 2021-01206884, Date: 2023-08-10 Tentative Ruling

Plaintiff Lamonte Thomas’s Demurrer to Defendant TKS Restaurants, LLC’s Amended Answer is SUSTAINED in part and OVERRULED in part as follows. Defendant is GRANTED 10 days leave to amend.

A plaintiff can demur to an answer on the ground that, inter alia, the answer does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) “Generally speaking, determination of whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725, 732.) A determination of the sufficiency of an answer requires an examination of the complaint because the adequacy of the answer is with reference to the complaint it purports to answer. (Id. at 733.) Further, the same pleading of ultimate facts rather than legal conclusions is required in pleading an answer as in pleading a complaint. (See FPI Development, Inc. v. Nakashimi (1991) 231 Cal. App. 3d 367, 384 [stating rule that answer must allege facts “averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”].) However, the rule of pleading requires “only general allegations of ultimate fact.” (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1469-1470.)

Although Defendant correctly points out the Complaint contains few factual allegations, Defendant must still satisfy the pleading requirements with respect to its affirmative defenses. As such, Defendant must provide some factual basis to support the affirmative defenses discussed hereafter.

The demurrer to the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 17th, 18th, 19th, 20th, 21st, 23rd, 24th, 30th, 35th, and 37th Affirmative Defenses is SUSTAINED. There are no facts alleged in the Complaint or Amended Answer that show these affirmative defenses are applicable in this case. The allegations are also impermissibly vague and fail to give notice of the grounds for the affirmative defense.

The demurrer to the 2nd Affirmative Defense is SUSTAINED. Code Civ. Proc. § 458 requires this defense to be pled by alleging the “cause of action is barred by Section ___ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing the cause of action is so barred. (Emphasis added.)” Although the Amended Answer identifies CCP § 340, it does not identify the specific subdivision relied on, and as such, fails to comply with Code Civ. Proc. §458.

The demurrer to the 1st, 15th, 25th, 26th, 27th, 28th, 29the, 31st, 32nd, 33rd, 34th, 40th, and 41st “Affirmative Defenses” is OVERRULED. Although these may not technically be affirmative defenses (Walsh v. West Valley Mission Comm. College Dist. (1998) 66 Cal.App.4th 1532, 1546; Adventec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627), they adequately provide notice of the matters in dispute.

The demurrer to the 16th, 22nd, 36th, 38th, 39th, and 42nd Affirmative Defenses is also OVERRULED. The Amended Answer provides general allegations of ultimate fact and is sufficiently plead to put Plaintiff on notice of these affirmative defenses. Any uncertainty as to the precise Labor Code violations to which these defenses are directed and bases for these defenses may be obtained through discovery.

Plaintiff also contends that the 2nd, 22nd and 38th Affirmative Defenses (which the Court has already ruled on on different grounds) are barred by issue preclusion based on this Court’s order denying Defendant’s demurrer to the Complaint. The demurrer is OVERRULED on this ground. Issue preclusion does not apply here because there is no final judgment on the merits as required. (Hoang v. Tran (2021) 60 Cal.App.5^th 513, 530 [collateral estoppel or issue preclusion is one aspect of res judicata or claim preclusion and requires (1) that the issue necessarily decided in the prior proceeding is identical to the one which is sought to be relitigated; (2) that the prior proceeding resulted in a “final judgment on the merits”, and (3) that the party against whom collateral is asserted was a party or in privity with the party at the prior proceeding]; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5^th 825, 844 [“The doctrine of res judicata or claim preclusion dictates that in ordinary circumstances a final judgment on the merits prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. … Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.”])

The demurrer to the prayer for attorney fees and costs is OVERRULED. Although the Notice of the Demurrer and supporting memorandum indicate that Plaintiff demurs to Defendant’s prayer for attorney fees and costs, the Demurrer does not include attorney fees and costs in violation of CCP § 430.60 and CRC Rule 3.1320(a). Additionally, the demurrer to the prayer is improper as it does not dispose of an entire affirmative defense. (Cal. R. Ct. 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”]; Code Civ. Proc. § 430.80(b) [“If the party against whom an answer has been filed fails to demur thereto, that party is deemed to have waived the objection unless it is an objection that the answer does not state facts sufficient to constitute a defense.”])

Status Conference: The Court has reviewed the parties' joint status report filed August 3, 2023, and sets a further status conference on October 20, 2023 at 9 AM. The parties are ordered to file a joint status report not later than October 13, 2023. In addition, the parties are ordered to meet and confer on a proposed case management order and to file same with the Court not later than October 13, 2023. Where the parties differ on activities and/or dates, they are to set forth their respective positions in the proposed case management order.

Plaintiff is ordered to give notice.