Judge: Serena R. Murillo, Case: 20STCV44971, Date: 2022-09-08 Tentative Ruling

Case Number: 20STCV44971    Hearing Date: September 8, 2022    Dept: 29

Sheila Smithgivens v. Keck Medicine of USC, et al.

Thursday, September 8, 2022 

TENTATIVE

Plaintiff Sheila SmithGivens’s demurrer to the answer is SUSTAINED in part and OVERRULED in part. The demurrer is SUSTAINED with 30 days leave to amend as to affirmative defense 5, 6 and 9, and OVERRULED as to affirmative defenses 2, 3, 4, 7, and 8.

Legal Standard

Plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc. § 430.20.)  “Where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ . . . Such ‘new matter’ is also known as ‘an affirmative defense.’”  (Department of Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294 [citations omitted].) 

Under California Code of Civil procedure section 431.30, subdivision (g), every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” 

California law requires an answer to plead facts with as much detail as is required for a cause of action.  (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)  However, some vagueness may exist in a defendant’s answer because most defendants do not have the ability to prove their defenses at the initial answering phase, which usually occurs before discovery. Additionally, a defendant has a significant incentive to plead every affirmative defense because a party waives defenses that are not pled. As a result, even where a defense is defectively pled, it may be allowed if the defendant’s pleading gives sufficient notice to enable the plaintiff to prepare to meet the defense, in part because unpled defenses are waived.  (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)   Unlike a demurrer to complaint, “the defect in question need not appear on the face 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.”  (Id.) 

Meet and Confer

The demurrer is accompanied with the declaration of Jessica I.A. Deville, which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.) 

Discussion

Failure to State Sufficient Facts 

Plaintiff demurs to Defendants’ answer, arguing that many of their affirmative defenses merely state a legal conclusion and therefore, state insufficient facts.

Affirmative defenses 2, 3, and 4

Defendant’s second, third and fourth affirmative defenses are based on the Medical Injury Compensation Reform Act of 1975 (“MICRA”) limitations on damages.  (See Hirmnak v. Watkins  (1995) 38 Cal.App.4th 964, 970-972; see also Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 152; Pressler v. Irvine Drugs, Inc. (1985) 169 Cal.App.3d 1244, 1247; Waters v. Bourhis (1985) 40 Cal.3d 424, 431-432.)  Code of Civil Procedure section 667.7 limits the way in which damages for future damages of judgment creditors are to be paid in actions for damages against health care providers based on their professional negligence.  California Code of Civil Procedure section 3333.2 limits the noneconomic losses recoverable against a health care providers based on their professional negligence.  Civil Code § 3333.1 is a provision of MICRA and applies to actions for personal injury against health care providers.  

Defendant alleges Plaintiff’s recovery pursuant to his complaint is limited by each of these sections.  Plaintiff alleges she was injured from Defendants while Defendants were rendering medical treatment.  As such, Defendants; allegations based on MICRA limitations are not “new matters.”  Therefore, the demurrer must be overruled as it relates to the second, third and fourth affirmative defenses.

Affirmative defense 5

Defendant’s fifth affirmative defense is based on Plaintiff’s injuries resulting from the natural course of a disease or condition, or was the expected or natural result of reasonable treatment rendered for the condition of disease.  (See Civ. Code, § 1714.8, subd. (a).) 

This allegation a “new matter” because it is not responsive to the essential allegations of Plaintiff’s medical malpractice cause of action.  Defendant has not alleged facts indicating Plaintiff’s injuries were a natural course of a disease or condition.  Defendant has not alleged facts showing the treatment of Plaintiff’s condition or disease rendered to Plaintiff was reasonable.  Defendant has also not alleged facts suggesting Plaintiff’s injuries were expected or natural result from the reasonable treatment.  As such, the demurrer is sustained as to Defendant’s fifth affirmative defense. 

Affirmative defense 6

The sixth affirmative defense is based on Civil Code Section 1431.2, and it states these defendants' liability to plaintiff for non-economic damages, if any, is limited to only said defendants' proportional fault, if any, and their liability as to said damages, if any, is several, not joint.

This allegation is new matter as it is an affirmative defense that takes the form of a “yes, the allegations [of the complaint] are true, but . . . .”  (FPI Development, Inc., supra, 231 Cal.App.3d at p. 383.)  It follows, Defendant, itself, would bear the burden of proving the “new matter” alleged in each of the abovementioned affirmative defenses, and, as such, each must be specifically pleaded.  (See California Academy of Sciences, supra, 192 Cal.App.3d at p. 1442.)   As this is merely a legal conclusion, the demurrer is sustained as to the sixth affirmative defense.

Affirmative defense 7

Defendant’s seventh affirmative defense is based on Plaintiff’s complaint failing to allege sufficient facts to state a cause of action.  This allegation does not raise a “new matter” apart from the complaint.  Therefore, the demurrer must be overruled as to Defendant’s seventh affirmative defense. 

Affirmative defense 8

Defendant’s eighth affirmative defense relates to Plaintiff’s comparative fault.  Comparative fault is an affirmative defense that may be alleged generally.  (See Singer v. Superior Court of Contra Costa County (1960) 54 Cal.2d 318, 323-324 [“the defendant is required to plead the facts upon which he relies to support his defense of contributory negligence, and must allege the causal connection between those facts and the injury.  But this simply means that a defendant may allege that the plaintiff was negligent in and about those matters alleged in the complaint, and that such negligence proximately contributed to his injury”].)  As such, the demurrer must be overruled as to affirmative defense eight.

Affirmative defense 9

The ninth affirmative defense states that any and all injuries, damages, or losses allegedly suffered by plaintiff were directly and proximately caused and contributed to by the negligence and/or fault of persons other than, separate and apart from these answering defendants, be such persons named or unnamed in the within action. 

However, this is new matter, and because no party is named, and no action is detailed, insufficient facts have been alleged to state the affirmative defenses of apportionment of fault and damage caused by others. Thus, the ninth affirmative defense is sustained.

Conclusion

Accordingly, Plaintiff’s demurrer to the answer is SUSTAINED in part and OVERRULED in part. The demurrer is SUSTAINED with 30 days leave to amend as to affirmative defense 5, 6 and 9, and OVERRULED as to affirmative defenses 2, 3, 4, 7, and 8.

Moving party is ordered to give notice.