Judge: Stephen P. Pfahler, Case: 22STCV23442, Date: 2023-08-08 Tentative Ruling
Case Number: 22STCV23442 Hearing Date: August 8, 2023 Dept: F49
DEMURRER
MOVING PARTY: Plaintiff, Krystal Shin
RESPONDING PARTY: Defendant, PlayCore Wisconsin, Inc. dba
GameTime
RELIEF
REQUESTED
Demurrer
to the Answer to the Complaint
SUMMARY
OF ACTION
On
February 20, 2022, plaintiff Krystal Shin visited a “PARK” in the City of Los
Angeles. While playing inside a piece of equipment identified as “the COACH,”
Plaintiff fell from the “COACH,” but her left hand remained “caught in one of
the holes in the floor,” which to the severing of a finger.
On
July 20, 2022, Plaintiff filed a complaint for Dangerous Condition of Public
Property, Negligence and Strict Liability. On September 16, 2022, City of Los
Angeles answered the complaint. On September 16, 2022, City of Los Angeles
filed a cross-complaint for Indemnification, Apportionment of Fault, and
Declaratory Relief. On March 13, 2023, PlayCore Wisconsin, Inc. dba GameTime
answered the complaint.
The
case was reassigned to Department 49 on April 26, 2023.
RULING: Overruled.
Plaintiff
submits demurrer to all but the second, sixth, and seventh affirmative defenses
of the 25 affirmative defenses pled in the answer of defendant PlayCore
Wisconsin, Inc. dba GameTime (GameTime) on grounds that the answer lacks
supporting facts, and instead only relies on unsupported conclusions. GameTime in
opposition challenges the demurrer based on the pleading requirement standards
for a defendant, and a representation that all challenged affirmative defenses
are properly pled. Plaintiff in reply emphasizes the lack of “ultimate facts”
in support of the answer, and because the defenses are boilerplate, irrelevant,
and unsupported, the court should deny leave to amend. Plaintiff supports this
argument, at least in part, due to the availability of internal documents,
which therefore allows for more specific disclosure.
A demurrer is an objection to a pleading, the grounds for
which are apparent from either the face of the complaint or a matter of which
the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see
also Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) The purpose of a demurrer is to challenge the sufficiency of a
pleading “by raising questions of law.” (Postley
v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.”
(Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law . . . .” ’ ” (Berkley v.
Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the
court liberally construes the complaint to determine whether a cause of action
has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th
726, 733.)
“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139 [“[U]nder our liberal pleading rules,
where the complaint contains substantive factual allegations sufficiently
apprising defendant of the issues it is being asked to meet, a demurrer for
uncertainty should be overruled or plaintiff given leave to amend.]
An “answer to a complaint must
include ‘[a] statement of any new matter constituting a defense.’ The phrase
‘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.’ [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 District (1998) 66 Cal.App.4th 1532, 1546 (italics original).)
“Generally, a party must raise an issue as an affirmative
defense where the matter is not responsive to essential allegations of the complaint.
[Citations omitted.] Thus, where a defendant relies on facts not put in issue
by the plaintiff, the defendant must plead such facts as an affirmative
defense.” (Bevill v. Zoura (1994) 27
Cal.App.4th 694, 698; South Shore Land
Co. v. Petersen (1964) 226 Cal.App.2d 725, 733–734 [In considering a
demurrer to the answer, the defect in question need not appear on the face of
the answer: “the determination of the sufficiency of the answer requires an
examination the answer” in context of the operative complaint purportedly being
answered].)
A party must allege any and all affirmative defenses or risk
waiver. (Cal. Code Civ. Proc., § 430.80(a); See
Roy v. Superior Court of County of San
Bernardino (2005) 127 Cal.App.4th 337, 345.) An answering party must aver
ultimate facts, rather than conclusions. (FPI
Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) The “onus
of proof” on any “new matter” alleged in the answer is the burden of the
pleading defendant. (Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 239.)
The demurrer offers a perfunctory
address of the challenged affirmative defenses based on the lack of “ultimate
facts” in support, duplicative defenses, and insufficient contextual information.
In the case of the arguments to the fourth, ninth, and twenty second
affirmative defenses, Plaintiff effectively seeks to adjudicate the validity of
claim via the pleadings by arguing complete invalidity of said defenses through
reliance on extrinsic inference. Plaintiff also contends the fifteenth
affirmative defense for spoliation of evidence constitutes an evidentiary
standard, rather than affirmative defense.
With
the exception of fourth, ninth, fifteenth, and twenty second affirmative
defenses, the demurrer itself lacks any legal support beyond argument
emphasizing the standard for affirmative answers. As referenced above, the
argument, at least in part, relies on the assumption that because GameTime
holds documents in its possession, it’s presumptively required to plead
specific factually accurate responses derived from said internal documents
within the 30-day window to respond to a pleading. This particular basis of the
argument apparently fuels the parties’ disagreement over the factual standard
for a demurrer, especially on the difference between “ultimate” versus and
“evidentiary facts.”
The
court agrees that legal conclusions in direct legal conflict with the
allegations of the complaint remain subject to a demurrer, but the court must also
refrain from imposing an effective waiver of a defense and imposition of a
default, due to the lack of contextual factual support at the time of the
filing of the responsive pleading. The court also declines to enforce discovery
via a challenge to the pleadings, and/or make a determination regarding the
validity of a response based on assumptions of accessibility of resources
available for review at the time of the response deadline. Thus, barring a
legal conflict established by the challenging party, the court adheres to the
liberal policy of allowing affirmative defenses with the intent of the parties
engaging in discovery for further clarification of any and all claims. The
court finds the argument challenging improper reliance on conclusions and the lack
of ultimate facts insufficiently supported, and overrules the demurrer on this
basis.
Under the same standard, the court
appreciates the legal argument on the fourth, ninth, and twenty second
affirmative defenses. As addressed above, however, the court finds the argument
relies on extrinsic inference beyond the four corners of both the complaint and
answer. Again, a demurrer to an answer still adheres to the limitations of the
pleadings and judicially noticeable information. The demurrer is therefore
overruled on this basis.
On the validity of the spoliation
of evidence defense in the fifteenth affirmative defense, Plaintiff only offers
a conclusive argument that because spoliation constitutes an “evidence rule.”
The court finds the argument lacks sufficient address of the actual “evidence
rule” itself, including whether a party may proceed with spoliation as an
affirmative defense.
“Spoliation of evidence means the destruction or
significant alteration of evidence or the failure to preserve evidence for
another's use in pending or future litigation.” (Williams v. Russ (2008)
167 Cal.App.4th 1215, 1223.) There is no tort liability for intentional
spoliation of evidence committed by a party to the action to which the evidence
is relevant and which is, or reasonably should have been, discovered by the
spoliation victim, before conclusion of the underlying action. (Cedars-Sinai
Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 17-18.) Nor is a tort
remedy available for negligent spoliation committed by a party to the action. (Coprich
v. Superior Court (2000) 80 Cal.App.4th 1081, 1089–1090.)
A party may seek non-tort
remedies for spoliation, including discovery sanctions, and a ruling pursuant
to Evidence Code section 413 of a presumption that destroyed evidence would be
adverse to spoliator. (Cedars-Sinai Med. Ctr., supra, 18 Cal.4th
at p. 11.) “[A] party moving for discovery sanctions based on the spoliation of
evidence must make an initial prima facie showing that the responding party in
fact destroyed evidence that had a substantial probability of damaging the
moving party's ability to establish an essential element of his claim or
defense.” (Williams v. Russ , supra, 167 Cal.App.4th at p. 1227.)
The court can also defer ruling
on such a pre-trial motion in favor of allowing the trier of fact to consider
the circumstances of the destroyed evidence. (New Albertsons, Inc. v. Sup.
Ct. (2008) 168 Cal.App.4th 1403, 1431 [“Rather than decide the facts with
respect to the intentional destruction of evidence and impose a nonmonetary
sanction on a pretrial motion in circumstances not contemplated by the
discovery statutes, we believe that in most cases of purported spoliation the
facts should be decided and any appropriate inference should be made by the
trier of fact after a full hearing at trial”]; see CACI 204.)
It’s not clear how GameTime
intends to proceed with any challenge under spoliation of evidence. Nothing in
the answer or demurrer requires such consideration. Given spoliation, even as
an evidentiary showing touches on potential affirmative defenses, the court
finds no basis for disallowing the affirmative defense, if for no more than to
preserve the right to schedule an evidentiary hearing at a future date. The
demurrer is overruled.
In conclusion, the demurrer is
overruled in its entirety. The parties may engage in discovery regarding
support of the defenses.
Trial remains set for May 9, 2024.
Plaintiff to give notice.