Case Number: 19STCV07942 Hearing Date: May 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFFS’ DEMURRER TO FIRST AMENDED ANSWER

On March 7, 2019 Plaintiffs Edward Jimenez and Michell Jimenez (collectively, “Plaintiffs”) filed this action against Defendants Maria Guadalupe Carranza Galvez and Juan Cuevas Carranza (collectively, “Defendants”) for motor vehicle negligence and loss of consortium arising out of an October 26, 2018 automobile accident. On April 16, 2019, Defendants filed an Amended Answer. Plaintiffs demur to the amended answer.

Answers to the Complaint

A verified complaint must be denied positively or according to information and belief. A general denial is effective to controvert all material allegations of an unverified complaint. (Code Civ. Proc., § 431.30, subd. (d).) Anything less than a general denial of the whole complaint is a “qualified” or “specific” denial. A defendant can direct his or her denials to specific sentences, paragraphs, of parts of the complaint. Although not widely used, a defendant can also effectively deny allegations in the complaint by alleging contrary or inconsistent facts.

In addition to denials, the answer should contain any and all affirmative defenses or objections to the complaint that defendant may have and which 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, 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.)

Demurrers to the Answer

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).) On April 18, 2019, Plaintiffs’ counsel sent a meet and confer letter via fax, mail, and email. (Declaration of James Morris, ¶ 4a.) On April 19, 2019, Plaintiffs’ counsel called defense counsel and then emailed and faxed a second meet and confer letter to defense counsel. (Morris Decl., ¶¶ 4b, 4c.) Defense counsel would not agree to withdraw any affirmative defenses. (Morris Decl., ¶ 4d.)

First, Second, and Fifth Affirmative Defenses

The First, Second, and Fifth Affirmative Defenses allege comparative negligence. Defendants state Plaintiff Eduardo Jimenez carelessly, recklessly, and negligently drove, operated, managed and controlled his motorcycle, which was a direct and proximate cause of the accident. Defendants also state Plaintiff failed to exercise care for his own safety, proximately causing his own injuries.

Third Affirmative Defense

The Third Affirmative Defense alleges co-defendant liability. Defendants contend that co-defendants conducted themselves carelessly, recklessly, and negligently so as to cause and contribute, solely or to some degree, the damages and injuries sustained by Plaintiffs.

Fourth Affirmative Defense

The Fourth Affirmative Defense alleges Plaintiffs had full knowledge of the probabilities and possibilities of danger attendant upon their actions and positions and assumed any and all risks reasonable to be contemplated.

Sixth Affirmative Defense

The Sixth Affirmative Defense alleges that pursuant to Civil Code sections 1431 and 1431.5, their liability for personal injury or property damage based on comparative fault will be several as to non-economic damages and not joint.

Seventh Affirmative Defense

The Seventh Affirmative Defense alleges Plaintiffs failed to mitigate their damages, if any, which bars and/or diminishes the recovery, if any, against Defendants.

Eighth Affirmative Defense

The Eighth Affirmative Defense alleges Defendants were not negligent because they acted with reasonable care in an emergency situation which Defendants did not cause. Further, they acted as a reasonably careful person would have acted under similar circumstances.

Defendants do not state any facts in support of their affirmative defenses. Defendants contend that the facts Plaintiff seeks are generally uncovered through formal discovery and that to survive demurrer, a defendant must raise any defense. Defendants also contend their affirmative defenses are supported by the facts Defendants denied in the complaint. However, this is not the standard for determining whether an affirmative defense is well-pled or subject to demurrer. Affirmative defenses are “new matter,” and “new matter” refers to something relied on by a defendant not put in issue by the plaintiff. New matter is pleaded in the “yes, but” format, meaning the allegations of the complaint may be regarded as true, but based on the new matter pled in the Answer, there is a defense to plaintiff’s allegations. (Walsh, supra, 66 Cal.App.4th at p. 1546.) If Defendants lack facts to support an affirmative defense at this point in the litigation, and if later they obtain facts to support the affirmative defense, they can seek leave to amend the answer at that time.

In light of the lack of facts to support the affirmative defenses, the demurrer to them is SUSTAINED with twenty (20) days’ leave to amend.

Moving party to give notice.