Judge: Serena R. Murillo, Case: 22STCV00082, Date: 2023-04-03 Tentative Ruling
Case Number: 22STCV00082 Hearing Date: April 3, 2023 Dept: 29
TENTATIVE
Plaintiff Valerie Upramai’s demurrer to the answer is OVERRULED in part and SUSTAINED in part. The demurrer is OVERRULED as to affirmative defenses 1 and 2, but SUSTAINED with 30 days leave to amend as to affirmative defenses 3 and 4.
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 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 Ying Xu, which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)
Discussion
1. Comparative Fault
Defendant’s first 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 this affirmative defense.
2. Failure to State a Cause of Action
Defendant’s second 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 second affirmative defense.
3. Apportionment
“The third affirmative defense states that if plaintiff suffered or sustained any damages as alleged in the complaint, those damages were proximately caused and contributed to by persons other than these answering defendants, including but not limited to Doe defendants….” (Answer, pg. 2:22-25.)
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.) Because no party is named other than doe defendants, but the allegation is not limited to doe defendants, and no action is detailed, insufficient facts have been alleged to state the affirmative defense of apportionment of fault and damage caused by others. Thus, the demurrer to the third affirmative defense is sustained.
4. Failure to Mitigate Damages
The fourth affirmative defense states that Plaintiff’s recovery is reduced or diminished by her failure to mitigate damages.
This is the bare legal standard for failure to mitigate. Defendant does not allege facts. Thus, Plaintiff’s demurrer to the fourth affirmative defense is sustained.
Lastly, the Court notes that Plaintiff also demurs on the basis that the answer is uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)
The court finds that the answer is not so bad that Plaintiff cannot reasonably respond.
Conclusion
Accordingly, Plaintiff’s demurrer to the answer is OVERRULED in part and SUSTAINED in part. The demurrer is OVERRULED as to affirmative defenses 1 and 2, but SUSTAINED with 30 days leave to amend as to affirmative defenses 3 and 4.
Moving party is ordered to give notice.