Judge: Shirley K. Watkins, Case: 22VECV01190, Date: 2023-05-01 Tentative Ruling

Case Number: 22VECV01190    Hearing Date: May 1, 2023    Dept: T

22VECV01190 CHRISTINE FORRESTER, D.D.S. vs MOHAMAD ALI RESHAD, D.D.S.

[TENTATIVE] ORDER:  The Demurrer to the FAA is OVERRULED as to the first, fifth through eighth, eleventh through thirteenth, and nineteenth Affirmative Defenses; and SUSTAINED WITHOUT LEAVE TO AMEND as to the remaining Affirmative Defenses. Defendant Mohamad Reshad’s Second Amended Answer filed on April 18, 2023, is deemed to be the operative response to the Second Amended Complaint and deemed to include Defendant Mohamad Reshad’s attempt to cure the second through fourth, ninth, tenth, fourteenth through eighteenth Affirmative Defenses. Defendant Mohamad Reshad is not given leave to file a Third Amended Answer.

Introduction

            Plaintiff Christine Forrester (Plaintiff) demurred to Defendant Mohamad Reshad’s (Defendant) First Amended Answer (FAA) to the Second Amended Complaint (SAC.)  Plaintiff placed into issue all nineteen affirmative defenses (AD) alleged in the FAA. 

            The Court noted that Defendant filed his original Answer to the SAC on January 17, 2023.  In response, Plaintiff moved to strike the Answer but Defendant filed the FAA on February 14, 2023.  The instant demurrer is the Court’s first review of Defendant’s response to the SAC.  Defendant did not file an opposition to the demurrer to the FAA.

            Discussion 

            Plaintiff argued that all ADs in the FAA lacked factual pleading to support each of the ADs.  The Court finds that the arguments in the demurrer are persuasive except as to the first AD for failure to plead sufficient facts; fifth AD alleging a statute of limitations defense; the sixth AD for non-economic damage limitations per Code of Civil Procedure section 3333.1; the seventh AD for non-economic damage limitations per Code of Civil Procedure section 3333.2; the eighth AD for periodic payment of any future damages per Code of Civil Procedure section 667.7; the eleventh AD for immunity per Civil Code section 1714.8; the twelfth AD for immunity per Health & Safety Code section 1317; the thirteenth AD for Proposition 51 limitations; the seventeenth AD for “opinion” defense to fraud; and the nineteenth AD for failure to comply with Code of Civil Procedure section 364 (prelawsuit notice requirement.) 

The first and seventeenth ADs do not require additional fact pleading because the ADs are based upon the allegations or lack thereof in the SAC. 

The fifth, sixth, seventh, eighth, eleventh, twelfth, thirteenth, and nineteenth ADs are statutory defenses that do not require additional fact pleading.  Citing to the specific statute at issue is sufficient to plead the defenses. 

Rather than oppose the demurrer, Defendant filed a Second Amended Answer on April 18, 2023.  The filing of the Second Amended Answer was without leave of court, as required by Code of Civil Procedure section 472.  Despite the procedural impropriety, the Court considered the Second Amended Answer.

The Demurrer to the FAA is OVERRULED as to the first, fifth through eighth, eleventh through thirteenth, and nineteenth ADs; and SUSTAINED WITHOUT LEAVE TO AMEND as to the remaining ADs.  The Court finds the Second Amended Answer to be the operative response to the SAC and Defendant’s filing of the Second Amended Answer to be his attempt to cure the pleading defects as to the second through fourth, ninth, tenth, fourteenth through eighteenth ADs.  Defendant is not given leave to file a Third Amended Answer.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.