Tentative Ruling 

HEARING DATE: March 29, 2024

CASE NUMBER: 23TRCV02361 

 

CASE NAME: Yadira Coleman v. Devine Drop Beauty Bar dba Devine Frame Natural Spa, LLC, et al.   

 

MOVING PARTY: (1) Plaintiff, Yadira Coleman   

RESPONDING PARTY: (1) Defendants, Devine Drip Beauty Bar dba Devine Frame Natural Spa, LLC and Aryana Hearod  

 

TRIAL DATE: None set.  

MOTION: (1) Plaintiff’s Demurrer to Defendants’ Answer

Tentative Rulings: (1) CONTINUED to May 1 to enable sufficient meet and confer process. 

 

 

 

I. BACKGROUND

A. Factual

On July 20, 2023, Plaintiff, Yadira Coleman (“Plaintiff”) filed a Complaint against Defendants, Devine Drip Beauty Bar dba Devine Frame Natural Spa LLC, Ariyana Hearod, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Premises Liability; (2) General Negligence; and (3) Products Liability. Plaintiff’s action arises out of an alleged incident where Plaintiff contends that she sustained severe burn injuries while at the beauty bar. 

 

Further, on January 9, 2024, Defendants, Devine Drip Beauty Bar dba Devine Frame Natural Spa, LLC and Ariyana Hearod (collectively, “Defendants”) filed their answer, asserting thirty-eight (38) affirmative defenses.  

 

Now, Plaintiff moves for a demurrer as to all thirty-eight of the affirmative defenses as Plaintiff contends each are plead with mere conclusions, do not identify to which claims they apply, and are uncertain because Defendants have not identified what facts ,if any, support all of any part of such defenses.  

 

B. Procedural

 

On February 21, 2024, Plaintiff filed demurrer. On March 18, 2024, Defendants filed their opposition brief. On March 21, 2024, Plaintiff filed a reply brief.   

 

II. ANALYSIS

A. Legal Standard  

 

A plaintiff may demur to a defendant’s answer within 10 days of being served with the answer (Code Civ. Proc., § 430.40, subd. (b)) on three grounds: (1) failure to state facts sufficient to constitute a defense; (2) uncertainty; or (3) failure to state whether a contract alleged in the answer is written or oral. (Id., § 430.20). The demurrer may be to the whole answer or to any one or more of the several defenses set up in the answer. (Code Civ. Proc., §430.50, subd. (b).) The plaintiff may not, however, demur to part of a defense and, in order to determine the sufficiency of a defense, it must be considered as a whole. Each defense must be considered separately without regard to any other defense, and one defense does not become insufficient because it is inconsistent with other parts of the answer. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) 

¿ 

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, 879-80.) The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading the complaint. The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384 (a general denial puts in issue the material allegations of the complaint; court was considering whether general denial put at issue new matter for a motion for summary judgment).) CCP § 431.30(g) provides that the various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” 

“Generally speaking, the determination 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, supra, 226 Cal. App. 2d at 732.)¿ “[T]he demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.” (Id. at p. 733.) Unlike a demurrer to complaint, “the defect in question need not appear on the fact of the answer” as “[t]he determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer.” (Ibid.) 

 

B. Discussion  

 

It is almost inconceivable that a bodily injury case could implicate 38 distinct affirmative defenses or that a trial would raise so many affirmative defenses, so it is not unreasonable to require a proper meet and confer process before given counsel and opportunity to consider some pruning.  That did not happen here so the Court is continuing the hearing to a pre-existing date already on calendar for this matter to facilitate a fuller informal resolution process before the Court hears the Demurrer to the Answer. 

 

Meet and Confer  

 

Code of Civil Procedure § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).) 

On review of the Declaration of Joshua D. Allton, the Court finds that Plaintiff has failed to meet and confer in good faith. The Allton Declaration contends that Plaintiff reached out to Defendants counsel to discuss the deficient answer, and attached the email exchanges as Exhibit B. (Allton Decl., ¶ 4, Exhibit B.) However, upon further review of such correspondence, it appears that although Plaintiff did reach out to Defendants to discuss the alleged deficiencies of the affirmative defenses, Plaintiff’s counsel was the one who did not seem to follow up on what appears to be very amendable emails sent by defense counsel. The initial email communication from counsel for Plaintiff indicates that many of the 38 affirmative defenses are insufficiently plead due to legal conclusions and asked for Defense Counsel’s availability for a phone call to meet and confer. Subsequently, counsel for Defendant, on the very same day, offered her availability for the meet and confer phone call. Two days later, it appears that counsel for Defendant followed up on that email, which indicates to this Court that Plaintiff’s counsel did not respond to the offered times by Defense counsel. Next, Plaintiff’s counsel CC’d another attorney, noting to defense counsel that Allton would be taking the lead on the case, that he was tied up with trial, but would be available to met and confer with counsel for Defendant. Defense counsel noted that this was not a problem, and that she was willing to extend the deadline for Plaintiff to file a demurrer (as this was a concern for Plaintiff in setting up the meet and confers they subsequently failed to follow up on), so that the parties could properly meet and confer to discuss the concerns and a proposed amended answer. Instead of following up on the meet and confer process, Allton responded to Defense Counsel’s very amenable email with: “Thank you for offering the extension. Agreed to a 30 day extension. The new date is 2/21.” Again, counsel for Defendant responded: “hanks – I would propose stipulating to file an amended answer I would circulate for your review beforehand. However, I don’t believe that each and every defense is deficient, as we have pled them to preserve our defenses, and at this early stage in the litigation, there are few facts known to us. Please let me know when you are available to discuss.” 

 

That last email response from defense counsel on February 23, 2024, is the last of the email communications between the parties. The Court is confused as to how Plaintiff believes it met and conferred in good faith with defense counsel. Plaintiff Counsel’s January 19, 2024 email correspondence did not ask for further dates, previously provided by Defense Counsel. Further, when Defense Counsel followed up with an email on January 23, 2024, she explicitly asked for dates of availability, which do not appear to have been provided per Plaintiff’s counsel’s own declaration. The Court also believes Plaintiff’s counsel may be confused as well as he indicates in his declaration: “While Plaintiff granted an extension to Defendants to file an Amended Answer up until February 21, 2024, Defendants failed to do it.” (Allton Decl., ¶ 5.) The extension was not provided by Plaintiff for an amended answer. The extension was provided by Defense counsel to extend the time Plaintiff had to file a demurrer to their answer in order to allow the parties to meet and confer regarding a potential stipulation OFFERED BY THE DEFENDANTS’ COUNSEL, to which Plaintiff’s counsel never provided any meet and confer dates.  

 

As such, the Court does not find that Plaintiff satisfied the meet and confer requirements in this motion. The Court orders the parties to meet and confer in good faith, and provide this Court with a joint status report of what affirmative defenses are still at issue, if any. Plaintiff has brought this motion as to all thirty-eight (38) affirmative defenses despite Defense counsel’s showing of amenability to a stipulated amended answer. Despite this showing of amenability, Plaintiff’s counsel has nonetheless brought this motion to affirmative defenses that may not have even been at issue if Plaintiff were to sufficiently meet and confer.  

 

The Court notes that there is a Case Management Conference on May 1, 2024. The parties are to meet and confer prior to this, and file their joint status report, or take the demurrer off calendar based on an agreement to file an amended Answer on or before April 26, 2024.   

 

III. CONCLUSION 

 

For the foregoing reasons, the Plaintiff’s Demurrer to Defendants’ Answer is CONTINUED to May 1, 2024.    

Plaintiff is ordered to give notice.