Judge: William A. Crowfoot, Case: 22STCV32727, Date: 2022-12-21 Tentative Ruling

Case Number: 22STCV32727    Hearing Date: December 21, 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 October 6, 2022, alleges that on August 9, 2022, Defendant, Ah Lan Yu Cheung, while operating a motor vehicle, struck Plaintiff, Roseanne Cheryl Zide, while she was on foot and crossing the road in a marked crosswalk. Plaintiffs allege claims for negligence and negligent entrustment. Defendants filed their answer on November 17, 2022.

II.    ARGUMENTS

A.   Plaintiffs’ Motion filed November 28, 2022

          Plaintiffs argue that the entire answer lacks facts to support each defense numbered 1-14 and is uncertain. Plaintiffs’ counsel met and conferred prior to filing the demurrer, however, the parties could not resolve their disputes. Plaintiff further argue that Defendants are required to plead their defenses with specificity and since the answer cannot be amended, the court should not grant leave to amend.

      In an opposition brief filed on December 8, 2022, Defendants argue that the pleading standards applicable to complaints do not apply to answers. Defendants claim they are merely required to place the plaintiff on notice of the affirmative defenses that may be asserted at trial. Defendants contend that Plaintiff’s motion is “boilerplate” since it refers to parties not involved in this proceeding.  Additionally, Defendants state that Plaintiffs can resolve any uncertainty and seek more detail through the discovery process because they need only allege ultimate facts.  Alternatively, if the court is inclined to sustain demurrer to the answer, Defendants request leave to amend.
      In a reply brief filed on December 12, 2022, Plaintiffs apologize for any scrivener’s error in referencing parties not involved in this proceeding. Plaintiffs argue that California is a fact-pleading state, which requires allegations of fact to support the answer, not legal conclusions.

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, 837–838. 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. Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 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. Nakashima (1991) 231 Cal.App.3d 367, 385.

      However, 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, 561561; 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, 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 new 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.” Walsh at 1546 [“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 Dist. (1998) 66 Cal.App.4th 1532, 1546 [italics in original].

      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.

IV.   DISCUSSION

Plaintiffs assert that all affirmative defenses fail to state any facts to support the defense. The first affirmative defense for failure to state a cause of action does not raise new matter and is not a proper affirmative defense.  Accordingly, the demurrer to the first affirmative defense is SUSTAINED without leave to amend. 

The second affirmative defense for comparative negligence and the third affirmative defense for negligence of other defendants allege legal conclusions based on no facts that damages were caused by Plaintiffs’ own wrongful conduct or other people. Similarly, the ninth affirmative defense concludes that several liability should apply if Plaintiff suffered non-economic damages. Again, there are no alleged facts, simply legal conclusions.

The fifth 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 based on a legal conclusion without any allegation of facts and appears unconnected to Plaintiffs’ allegations that Plaintiff was crossing the street at the time she was struck.

The seventh affirmative defense for failure to mitigate damages is appropriately raised as an affirmative defense; however, Defendants have 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 alleged, the defense is a legal conclusion.

The sixth affirmative defense for laches, waiver and estoppel are equally unsupported by any facts, as are the eighth affirmative defense for avoidable consequences, the 11^th affirmative defense for imminent peril, the 12^th affirmative defense for failure to join necessary parties, the 13^th affirmative defense alleging Plaintiff is barred from recovering general damages, and the 14^th affirmative defense for negligence of employer. Again. Plaintiff alleges she was a pedestrian crossing the street at the time of the incident. Complaint, ¶ 2:4-8. There are no facts raising the new matter that Plaintiff’s employer was at fault. The 15^th affirmative defense for “unknown defense” for “reservation of rights” are equally devoid of any facts. Defendants have the right to amend pleadings assuming they can meet the requirements of Code Civ. Proc., § 473.

While Defendants are correct that demurrers for uncertainty can be clarified in discovery and that the Answer does not require evidentiary facts, there must still be alleged facts to support an affirmative defense. Here, as described above, Defendants do not allege any facts.

V.           CONCLUSION

Based on the foregoing, the demurrer to all affirmative defenses, other than the first, is SUSTAINED with leave to amend. Defendants are ordered to file a First Amended Answer within 10 days. Cal Rules of Court, Rule 3.1320 subd. (g).

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.