Judge William A. Crowfoot, Case Number: 23AHCV00534, Date: 2023-11-15 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00534, Date: 2023-11-15 Tentative Ruling

On March 10, 2023, plaintiff Aldo Perez (“Plaintiff”) filed this action against defendant Heliodaro Jose Altamirano, Jr. (“Altamirano”) (erroneously sued as “Heliodaro Jose Altamiro Jr.”) and the City of Arcadia (“City”) (collectively, “Defendants”) for negligence and statutory liability under Government Code section 815.2. Plaintiff alleges that on or around July 20, 2022, he was driving a 2019 GMC Terrain and stopped at a red light on northbound Baldwin Avenue at its intersection with Longen Avenue. Altamirano, a City employee, was driving a 1990 Chevrolet Terrain that was owned, operated, and maintained by the City. Plaintiff alleges Altamirano was negligently operating the City’s vehicle at a speed that endangered the safety of persons and property in violation of Vehicle Code section 22350, failed to stop in time, and rear-ended Plaintiff’s vehicle.

On October 20, 2023, Plaintiff filed this motion for judgment on the pleadings as to Defendants’ affirmative defenses. Plaintiff argues that Defendants have not pleaded sufficient facts in their answer to constitute any of the 33 affirmative defenses asserted against his complaint.

On November 15, 2023, the Court continued the hearing to December 29, 2023. The parties submitted supplemental briefs on December 6 and December 8, 2023.

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) A motion for judgment on the pleadings filed by the plaintiff can only be granted if “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(3)(A).)

As with a demurrer to an answer, the allegations of the answer must be regarded as true. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 730.) 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.) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. [Citation.]” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

The answer should contain any and all affirmative defenses or objections, i.e., “new matter”, to the complaint that defendant may have and that would otherwise not be in issue under a simple denial. (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 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.)

As an initial matter, the Court rejects Defendants’ argument that this motion is procedurally defective and should be denied based on Plaintiff’s failure to meet and confer before filing it. Code of Civil Procedure section 439 explicitly states that “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (Code Civ. Proc., § 439, subd. (a)(4).)

Plaintiff requests the court judicially notice his complaint, Defendants’ answer, and Defendants’ discovery responses. The complaint and answer are judicially noticeable under Evidence Code section 452(d). However, Defendants’ discovery responses are not “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Therefore, the Court denies Plaintiff’s request to judicially notice Defendants’ discovery responses.

Plaintiff argues that Defendants’ written discovery responses show that they do not have evidence to support their affirmative defenses. Plaintiff contends that despite having produced his medical records and his own discovery responses for Defendants, Defendants have been unable to identify any facts in support of their affirmative defenses. As stated above, Defendants’ discovery responses are not judicially noticeable. Accordingly, Plaintiff’s motion, insofar as it relies on these discovery responses, impermissibly relies on extrinsic evidence and is denied.

D. Motion for Judgment on the Pleadings Based on Failure to State Sufficient Facts

Lastly, Plaintiff argues that Defendants’ 33 affirmative defenses are pleaded as bare legal conclusions and fail for uncertainty by referring to unnamed third parties and unnamed acts or omissions of Plaintiff or unnamed third parties, without any description of those acts or omissions. (Motion, pp. 7-8.)

In opposition, Defendants argue that the answer pleads a sufficient factual basis for each defense and that later discovery will “flush out” the facts that support each defense. Defendants also argue that the affirmative defenses are identified in their answer in order to preserve them. Defendants additionally argue that the answer is sufficiently stated based on Code of Civil Procedure section 128.7 because their attorneys have already certified, by presenting the answer to the Court, that “to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the allegations and other factual contentions [in the answer] have evidentiary support or, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

However, if Defendants lack facts to support an affirmative defense, Defendants should not plead that defense unless and until they learn of facts to support the application of the defense. As noted above, an affirmative defense is not well-pled unless it includes ultimate facts to support the assertion of the same. Accordingly, the Court reviews the Answer and rules on the motion as follows:

- The Fourth and Thirteenth Affirmative Defenses state that Plaintiff has not stated facts sufficient to constitute a cause of action against Defendants. The Thirty-Third Affirmative Defense reserves the right to assert additional defenses later. These defenses are not in the style of “yes, but,” as required in order to state an affirmative defense. They do not introduce new material and Plaintiff’s burden of proof remains the same regardless of whether these defenses are stated in the answer. Therefore, the motion for judgment on the pleadings as to the Fourth, Thirteenth, and Thirty-Third Affirmative Defenses is GRANTED without leave to amend.

- The Sixth and Thirtieth Affirmative Defense are not actually defenses, but either: (1) a denial of paragraphs 17 and 18 of the Complaint, which allege Plaintiff’s compliance with the Tort Claims Act, or (2) a denial of nonexistent allegations of reliance. Therefore, the motion is also GRANTED without leave to amend as to these defenses.

- The Seventh Affirmative Defense claims that Plaintiff may not maintain a cause of action for general negligence against a public entity, pursuant to Government Code section 815. This affirmative defense is sufficiently pleaded. Accordingly, the motion as to the Seventh Affirmative Defense is DENIED as to City and GRANTED as to Altamirano.

- The Ninth and Twentieth Affirmative Defense allege that this action is barred by 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. Plaintiff argues that the Complaint was filed before the statute of limitations expired, but this argument is meritless without looking at extrinsic evidence (which is not allowed on a motion or judgment on the pleadings). Therefore, the motion as to the Ninth and Twentieth Affirmative Defense is DENIED.

- The Fifth and Twenty-Second Affirmative Defense cite to various statutes in the Government and Vehicle Codes as grounds for immunity. Defendants have adequately pleaded their defenses based on statutory immunity by citing the statutes, which apply to both public entities and their employees. The motion as to the Fifth and Twenty-Second Affirmative Defense is DENIED.

- In their supplemental brief filed on December 8, 2023, Defendants argue that the First, Second, Third, Eighth, Fourteenth, and Twenty-First Affirmative Defenses state sufficient facts because “no additional facts” could even be pled. (Supp. Opp., p. 3.) The Court disagrees. The First, Second, Third, and Fourteenth Affirmative Defenses claim that Plaintiff caused his own injuries because of his failure to exercise ordinary care, but do not state what this failure consists of; similarly, the Eighth Affirmative Defense claims Plaintiff assumed an inherent risk without identifying what that risk is. Admittedly, the Twenty-First Affirmative Defense is more specific in claiming that Plaintiff “negligently drove, operated, managed, maintained, and otherwise controlled his vehicle” to cause the alleged collision and any resulting damage. However, it still does not state how Plaintiff acted negligently and contributed to the accident. This is in contrast with the allegations of the Complaint, which specify that Altamirano was driving negligently at a speed that endangered the safety of person and property, failed to stop in time, and rear-ended Plaintiff’s vehicle. (Compl., ¶ 15.) Therefore, the motion is GRANTED with 20 days’ leave to amend with respect to Affirmative Defense Nos. 1-3, 8, 14, and 21.

- As for the Twenty-Fifth and Twenty-Eighth Affirmative Defenses, Defendants claim that they are only responsible for “reasonable and lawfully incurred” medical expenses and their liability for noneconomic damages is several, not joint, pursuant to Civil Code section 1431.2. Given the general nature of Plaintiff’s allegations regarding his injuries and damages, the Court finds that these affirmative defenses are adequately pled. Therefore, the motion as to the Twenty-Fifth and Twenty-Eighth Affirmative Defense is DENIED

- Last, Defendants request leave to amend the Twenty-Fourth Affirmative Defense asserting an offset of damages. The request is granted.

Plaintiff’s motion is GRANTED without leave to amend with respect to Affirmative Defense Nos. 4, 6, 13, 30, and 33. Based on Defendants’ supplemental brief, it appears that Affirmative Defense Nos. 10, 11, 12, 15, 16, 17, 18, 19, 23, 26, 27, 29, 31, and 32 have been abandoned; therefore, the motion is also GRANTED as to these defenses without leave to amend.

Plaintiff’s motion is GRANTED with 20 days’ leave to amend with respect to Affirmative Defense Nos. 1-3, 8, 14, 21, and 24.

The motion is GRANTED without leave to amend with respect to Affirmative Defense No. 7 only insofar as it is asserted by Altamirano.

William A. Crowfoot

Judge of the Superior Court

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.