Judge: Shirley K. Watkins, Case: 22VECV02413, Date: 2023-03-27 Tentative Ruling

Case Number: 22VECV02413    Hearing Date: March 27, 2023    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Tatevik Serobyan’s Demurrer to the Answer is

SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First, Second, Fourth, Fifth, and Eighth Affirmative Defenses; and OVERRULED as to the Sixth, Seventh, Ninth, Tenth, and Eleventh Affirmative Defenses.

Introduction

            Plaintiff Tatevik Serobyan (Plaintiff) demurred to Defendant Suzanna Soriano’s (Defendant) Answer.  Plaintiff’s demurrer placed into issue all eleven Affirmative Defenses (AD) alleged in Defendant’s Answer.

            Discussion 

            Plaintiff argued that all eleven ADs failed to allege sufficient facts and were uncertain.  Plaintiff further argued that the ADs failed to state which causes of actions (COA) the defense responds to.  Although the ADs did not identify the COA to which the defense applied to, the Court noted that the Complaint only alleged two COAs – motor vehicle and general negligence.  Because both COAs are based upon a negligence theory, a liberal reading of the ADs would show that the ADs apply to both COAs.  Plaintiff’s argument as to the ADs failing to identify the applicable COA is overruled.

As to the argument of failing to allege sufficient supportive facts, the First AD for Comparative Fault; Second AD for Assumption of Risk; Fourth AD for Failure to Mitigate; Fifth AD for Independent and Superseding Cause by Plaintiff or Others; Eighth AD for Apportionment of Fault – Other Persons allege legal theories which required supportive facts outside of the facts alleged in the Complaint because the ADs require pleading of facts attributable to Plaintiff’s alleged negligence/misconduct or the negligence/misconduct of others.  These ADs failed to allege facts showing misconduct attributable to Plaintiff or others.

The Demurrer to the First AD for Comparative Fault; Second AD for Assumption of Risk; Fourth AD for Failure to Mitigate; Fifth AD for Independent and Superseding Cause by Plaintiff or Others; Eighth AD for Apportionment of Fault – Other Persons is SUSTAINED WITH LEAVE TO AMEND.

Plaintiff’s arguments against the Third AD for Failure to State a Claim;  Sixth AD for Statute of Limitations and Seventh AD for Uninsured Motorist Limits are disputes against the merits of the two defenses.  Plaintiff’s arguments are not that the ADs are insufficiently pled or that the ADs are uncertain.  A demurrer only attacks the sufficiency of the pleading and not the merits of the defense.  Because Plaintiff’s arguments dispute the merits of the ADs, the arguments are improper for a demurrer. 

Plaintiff’s demurrer to the Third AD for Failure to State a Claim; Sixth AD for Statute of Limitations and Seventh AD for Uninsured Motorist Limits is OVERRULED. 

The Ninth AD for Several Liability for Non-economic Damages (Civ. Code secs. 1431.1-1431.5), the Tenth AD for Limits of Owner’s Responsibility (Veh. Code sec. 17151,) and the Eleventh AD for Workers Compensation Act Exclusivity are not seen as affirmative defenses because these contentions are not based upon “new matter.”  The contentions are, however, seen as specific denials or statutory limitations as to Plaintiff’s damages.  Despite Defendant alleging the denials as affirmative defenses, there is no prejudice to Plaintiff.  Without expressly pleading the denials, there is potential for a waiver of the denials.  Because the contentions are seen as specific denials, the Demurrer’s argument that the “defenses” are improper is not persuasive.

The Demurrer to the Ninth AD for Several Liability for Non-economic Damages (Civ. Code secs. 1431.1-1431.5), the Tenth AD for Limits of Owner’s Responsibility (Veh. Code sec. 17151), and the Eleventh AD for Workers Compensation Act Exclusivity is OVERRULED.

            Plaintiff’s arguments as to uncertainty is not persuasive because the defenses are clear and intelligible.  Further, Plaintiff failed to identify the specific term or allegation that was arguably ambiguous or unintelligible.  Even if a term is ambiguous or unintelligible, such uncertainties can be clarified during discovery.

            Plaintiff’s demurrer as to uncertainty is OVERRULED. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.