Judge: William A. Crowfoot, Case: 22AHCV01287, Date: 2023-04-18 Tentative Ruling

Case Number: 22AHCV01287    Hearing Date: April 18, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

Introduction

On December 12, 2022, plaintiff Catherine Garcia (“Plaintiff”) filed this action against defendant Kee Zhang (“Defendant”) arising from a motor vehicle collision that occurred on February 25, 2022.  On March 7, 2023, Defendant filed an answer to Plaintiff’s complaint.  On March 10, 2023, Plaintiff filed this demurrer to Defendant’s Answer.  Plaintiff demurs to Defendant’s First through Ninth Affirmative Defenses on the grounds that they fail to state sufficient facts and are uncertain, ambiguous, and/or unintelligible. 

Legal Standard

An answer should contain any and all affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial.  Such defenses or objections are “new matter.”  (Code Civ. Proc., § 431.30, subd. (b).)  Generally, a defendant bears the burden of proving “new matter” and, as such, “new matter” must be specifically pleaded in the answer.  (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.)  “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.”  (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546.)  Where the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not new matter but are denials.  (Ibid.)

The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading a complaint.  The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.  (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.)  The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.”  (Code Civ. Proc., § 431.30(g).)  Defenses must be pleaded in the nature of “yes, the allegations [of the complaint] are true, but . . .”  (FPI Development, Inc., supra, 231 Cal.App.3d at p. 383.)

          The allegations of the pleading demurred to must be regarded as true.  (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.)  All that is necessary against a demurrer is that, upon consideration of all of the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary.  (Id. at p. 733.)  When considering a demurrer to answer, the “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.”  (Ibid.)  “[T]he demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer.”  (Ibid.)

          Meet and Confer

          “Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., § 430.41, subd. (a).)  The Court notes that Plaintiff failed to meet and confer as required by statute because Plaintiff’s counsel only sent correspondence by electronic mail on March 7, 2023.  (Avaness Decl., 2.) The requirement is meant to ensure that the parties have spoken about the issues and not merely engaged in a pro-forma exercise in meaningless compliance; ultimately, the Court is interested in ensuring that at each step of the way in this litigation the parties are engaging in a good faith effort to avoid needless motions practice, thus conserving their own and the Court’s resources.  The demurring party should expect to be asked at the hearing on this matter to explain why it ignored the meet and confer requirement of the code.

Nevertheless, because the insufficiency of the meet and confer process is not a ground to sustain or overrule a demurrer, the Court proceeds to analyze the demurrer on its merits. 

          Discussion

The Third Affirmative Defense states that the facts in the complaint do not constitute a cause of action.  This is not a proper affirmative defense because it does not introduce new material and Plaintiff’s burden of proof remains the same regardless of whether this defense is stated in the answer.  Therefore, the demurrer to the Third Affirmative Defense is SUSTAINED without leave to amend.

The Sixth Affirmative Defense alleges that Plaintiff failed to comply with the applicable statute of limitations.  Code of Civil Procedure section 458 specifically provides that a statute of limitations affirmative defense may be pleaded without any accompanying facts.  The demurrer to the Sixth Affirmative Defense is therefore OVERRULED.

          As for the remaining affirmative defenses, which allude to comparative fault, contributory negligence, mitigation of damages, and Plaintiff’s insurance status, Defendant fails to state any facts in support.  Defendant, in opposition to the demurrer, contends that the facts Plaintiff seeks are generally uncovered through formal discovery.  However, this is not the standard for determining whether or not an affirmative defense is well-pled or whether it is subject to demurrer; if Defendant lacks facts to support an affirmative defense, Defendant should not plead that defense unless and until they learn of facts to support the application of the defense.  As noted above, the affirmative defense is not well-pled unless it includes ultimate facts to support the assertion of the same.  In light of the lack of facts to support the remaining affirmative defenses, the demurrer to them is sustained with twenty (20) days’ leave to amend.

Conclusion

The demurrer to the First, Second, Fourth, Fifth, Seventh, Eighth, and Ninth Affirmative Defenses is SUSTAINED with 20 days’ leave to amend. 

The demurrer to the Third Affirmative Defense is SUSTAINED without leave to amend.

The demurrer to the Sixth Affirmative Defense is OVERRULED.  

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 18th day of April, 2023