Judge: William A. Crowfoot, Case: 22STCV28122, Date: 2022-12-09 Tentative Ruling

Case Number: 22STCV28122    Hearing Date: December 9, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.      Procedural and Background Facts

The Complaint filed on August 29, 2022, arises from a motor vehicle accident that occurred on July 21, 2022. Defendant Clayton Damian Fischer (“Defendant”) allegedly made an unsafe and illegal left turn, colliding with Plaintiff Michael William Wilson (“Plaintiff”). Plaintiff alleges claims for negligence, intentional infliction of emotional distress, and for negligent entrustment. On October 28, 2022, Defendant filed an unverified answer. Plaintiff now demurs to that answer.    

II.    Arguments

      Plaintiff argues that the 3rd through 13^th affirmative defenses fail to state facts to support the defense. The defenses are either equitable and improper, not recognized by law, or lack sufficient facts. The answer contains “boilerplate” defenses that should be eliminated.

      In opposition, Defendant argues he has met his burden of pleading ultimate facts to support each defense at issue. Discovery is the proper method for obtaining evidentiary facts. Plaintiff is imposing a higher standard than is required by law. Demurrer for uncertainty should be denied since the ambiguity can be clarified through discovery. Alternatively, Defendant asks for leave to amend.

      In reply, Plaintiff reiterates that the answer is “boilerplate,” lacks facts, and remains uncertain.
III. Legal Standards

      A demurrer reaches defects that appear on the face of the pleading. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838. A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the plaintiff’s ability to prove them, or the possible difficulty in making such proof. Id. at 840.

      The sufficiency of an answer depends on the complaint to which it purports to answer. South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733. Therefore, the answer does not stand alone; rather it is read with reference to the facts alleged in plaintiff’s complaint. The pleading must “minimally advise the opposing party of the nature of the defense even if defective as conclusory.” FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 385. Specificity in pleading is not required since “modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.” Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.

      Unlike federal courts, California state courts are not a notice pleading jurisdiction, and notice alone is not a sufficient basis for any pleading. California is a fact pleading jurisdiction. Merely putting an opposing party on notice is not sufficient. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.

      The critical inquiry when a plaintiff demurs to an answer is whether the answer raises a defense to plaintiff’s stated cause of action. Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880. The demurrer raises the objection that the answer does not state facts sufficient to constitute a defense. Id. at 880.  The answer to a complaint must include any statement of any matter constituting a defense. Code Civ. Proc., § 431.430(b)(2).

      “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.’ Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546. Thus, “new matter” is “any ground urged in avoidance of the complaint, ie., some independent reason why plaintiff should be barred from recovery, even if everything alleged in the complaint was true.” Id. [“all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defense independently of them, cannot be offered under the denial; they are new matter, and must be specially pleaded.”].

The answer is liberally construed with a view to substantial justice between the parties. The answer should make clear what issues the adverse parties must meet such that when taken in connection with the complaint, “no reasonable person could be in any doubt about the issues to be met.” Hoelzle v. Fresno County (1958) 159 Cal.App.2d 478, 483. FPI, supra at 384.

III.  Discussion

A.   Third through Eighth Affirmative Defenses

Defendant asserts that these affirmative defenses fail to state any facts to support the defense. The third affirmative defense for comparative negligence and the fifth affirmative defense for “fault of others” both allege a legal conclusion based on information and belief, that damages were caused by Plaintiff’s own wrongful conduct, or that other persons were responsible. The eight affirmative defense concludes that several liability should apply if Plaintiff suffered non-economic damages. Again, there are no facts, simply legal conclusions.

The fourth affirmative defense for assumption of the risk is equally devoid of any facts.  Primary assumption of the risk applies when, due to the nature of the activity and the relationship of plaintiff and defendant to that activity, defendant's ordinary duty of care is negated; i.e., defendant owes no duty to protect plaintiff from the particular risk of harm that caused the injury. Knight v. Jewett (1992) 3 Cal.4th 296, 314-315. This affirmative defense is also a legal conclusion based on information and belief.

The sixth affirmative defense for “foreseeability” is not new matter. It merely disputes Plaintiff’s negligence claim. It is in the form a general denial not an affirmative defense.

B.   Seventh through Twelfth Affirmative Defenses

The seventh affirmative defense for failure to mitigate damages is appropriately raised as an affirmative defense, however, Defendant has not alleged any supporting facts. Failure to mitigate involves proof of the following elements: (1) a party has suffered damage resulting from a breach of contract or tort; (2) the party failed to take reasonable steps and exercise ordinary care to mitigate the damages; and (3) losses which could have been avoided for which there can be no recovery. Valle De Oro Bank v. Gamboa (1994) 26 Cal. App. 4th 1686, 1691. As stated, the defense is a legal conclusion.

The ninth and tenth affirmative defenses for laches and unclean hands are equally unsupported by any facts.

The eleventh and twelfth affirmative defenses are for “set off” and “speculation.” Presumably, Defendant is referring to the effect of Proposition 51 and its interplay with Code Civ. Proc., § 877 which is that "each defendant is solely responsible for its share of noneconomic damages under Civil Code section 1431.2. However, this is not a defense to Plaintiff’s claims; it concerns the application of a settlement to a judgment obtained against Defendant, if any.

Additionally, Defendant has not addressed the purported affirmative defense of “speculation”, namely that Plaintiff’s claims are barred because Plaintiff’s damages are speculative. This “defense” only disputes Plaintiff’s damage claim and is not “new matter.”

While Defendant is correct that demurrers for uncertainty can be clarified in discovery, the Answer does not require evidentiary facts, but alleged facts to support an affirmative defense.

Last, Plaintiff refers to the thirteenth affirmative defense for “reservation of rights,” however, Plaintiff does not address it in the body of the demurrer. It is an undeveloped argument. Therefore, the demurrer to the thirteenth affirmative defense is overruled.

IV.         CONCLUSION

Based on the foregoing, the demurrer to the Third through Twelfth Affirmative Defenses is SUSTAINED.  The demurrer to the Thirteenth Affirmative Defense is OVERRULED. Leave to amend is proper where Defendant has not had a fair opportunity to amend, and the defect is capable of being cured. Colvig v. RKO Gen. (1965) 232 Cal. App. 2d 56, 69 70. Accordingly, the Court GRANTS Defendant 10 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.