Judge: Ronald F. Frank, Case: 24TRCV01227, Date: 2024-07-19 Tentative Ruling

Case Number: 24TRCV01227    Hearing Date: July 19, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 July 19, 2024 

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CASE NUMBER:                  24TRCV01227

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CASE NAME:                        Nicholas Holt v. Law Offices of Jon Udewitz, PC, et al.

MOVING PARTY:                Plaintiff, Nicholas Holt

RESPONDING PARTY:       Defendant, Law Offices of Jon Udewitz, PC and Jon Udewitz (No Opposition)

TRIAL DATE:                        Not Set

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MOTION:¿                              (1) Demurrer to Answer  

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Tentative Rulings:                  (1) SUSTAINED in part and OVERRULED in part.

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I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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            On April 9, 2024, Plaintiff, Nicholas Holt (“Plaintiff”) filed a complaint against Defendants, Law Offices of Jon Udewitz, PC, Jon Udewitz, and DOES 1 through 100. The complaint alleges causes of action for: (1) Gender/Sex Discrimination; (2) Hostile Work Environment Harassment – Entity Defendant; (3) Hostile Work Environment Harassment – Individual Defendant; (4) Quid Pro Quo Sexual Harassment; (5) Failure to Prevent Harassment, Discrimination, and Retaliation; (6) Wrongful Constructive Discharge in Violation of Public Policy; and (7) Intentional Infliction of Emotional Distress.

            On May 15, 2024, Defendants, Law Offices of Jon Udewitz, PC, Jon Udewitz (“Defendants”) filed an answer asserting various affirmative defenses.

            On June 12, 2024, Defendants filed an amended answer alleging less affirmative defenses.

            Now, Plaintiff files a demurrer to the amended answer.

B. Procedural¿¿ 

On June 18, 2024, Plaintiff filed a Demurrer to Defendants’ answer. To date, no opposition has been filed.  

II. ANALYSIS¿ 

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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. at § 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 demur to part of a defense. 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.) 

“[W]hether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (Id. 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 733.) But unlike a demurrer to a 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

Meet and Confer

            Code of Civil Procedure section 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 Plaintiff’s counsel, Connor M. Karen’s declaration (“Karen Decl.”), the Court finds that Plaintiff’s counsel made successful and good faith efforts to meet and confer with counsel for Defendants’ prior to the filing of this demurrer.  

Merits

            Plaintiff demurs to the first through twenty-second affirmative defenses asserted in Defendants’ answer, arguing the answer failed to plead facts sufficient to constitute the invoked defenses, and instead contains only boilerplate recitations of the relevant legal doctrines along with the conclusion that it applies to Plaintiff’s complaint. The Court will address each affirmative defense below.

            First, Plaintiff demurs to the first affirmative defense of “failure to state a claim.”  While technically this is not an affirmative defense but is placed in issue by a general denial, the standard practice of defense lawyers in Los Angeles County is to include that affirmative defense in every Answer filed.  Thus, the Court will allow that defense to stand and the Demurrer to it is overruled.

            Next Plaintiff argues that the twenty-first and twenty-second affirmative defenses for speculative damages and no punitive damages are boilerplate, and essentially asserts that Plaintiff has failed to state facts in his pleading to allege his FEHA claims. The Court agrees that these defenses merely contain boilerplate, conclusory assertions, and thus, fail to state facts sufficient to constitute an affirmative defense. This Court notes that the defenses do not introduce new material and Plaintiff’s burden of proof remains the same regardless of whether these defenses are stated in the Answer. Thus, the demurrer to the twenty-first and twenty-second affirmative defenses are SUSTAINED.

            However as to the second through twentieth affirmative defenses, Plaintiff also argues that Defendants’ affirmative defenses lack the requisite facts, and merely contain legal conclusions. This Court disagrees.  “New matter” refers to “something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.” (Walsh v. West Valley Mission Community College Dist.¿(1998) 66 Cal.App.4th 1532, 1546.) Thus, “new matter” is “any ground urged in avoidance of the complaint, ie., some independent reason why plaintiff should be barred from recovery, even if everything alleged in the complaint was true.” (Walsh at 1546 [“Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as 'new matter.' [Citation.]) 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.” (Walsh v. West Valley Mission Community College Dist.¿(1998) 66 Cal.App.4th 1532, 1546 [italics in original].) Besides the affirmative defenses ruled on above (1, 21-22), this Court finds that the rest of the affirmative defenses contain allegations not present in the Complaint. Although they may include boilerplate allegations, they need not prove, or include evidence to support said affirmative defenses in response to an unverified Complaint.   As such, the demurrer to affirmative defenses 2-20 is OVERRULED.

III. CONCLUSION¿¿ 

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For the foregoing reasons, Plaintiff’s Demurrer to Defendants’ Answer is SUSTAINED in part and OVERRULED in part.  

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Plaintiff is ordered to give notice.