Case Name: Bertha Avila Chavez, et al. v. Helen Chan, et al.

Case No.: 19CV352235

Plaintiffs’ Demurrer to the Answer filed by Defendant Helen Chan and Defendant Hong Suen Chan

Factual and Procedural Background

On August 25, 2017, plaintiffs Bertha Avila Chavez, Jesus Avila Chavez, and Bertha Chavez Sanchez (collectively, “Plaintiffs”), at or near northbound I-880 south of Montague Expressway in San Jose, suffered injuries and damages as a result of the negligence of defendants Helen Chan, Jon Stephen Clark, Hederandy James Santana, Hong Suen Chan, and Laurie Gerst.

On July 26, 2019, Plaintiffs filed a Judicial Council form complaint against defendants asserting causes of action for:

(1) Negligence—Motor Vehicle
(2) General Negligence
(3) Negligence Per Se
(4) Negligent Entrustment of a Motor Vehicle

On September 17, 2019, defendants Helen Chan and Hong Suen Chan filed an answer to Plaintiffs’ complaint.

On September 18, 2019, defendant Heder Santana filed an answer to Plaintiffs’ complaint and a cross-complaint against Helen Chan and Plaintiffs for indemnity and contribution. On October 10, 2019, defendant Heder Santana filed a first amended answer to Plaintiffs’ complaint.

On October 2, 2019, Plaintiffs filed the motion now before the court, a demurrer to the answer filed by defendants Helen Chan and Hong Suen Chan.

I. Plaintiffs’ demurrer to the answer filed by defendants Helen Chan and Hong Suen Chan is SUSTAINED, in part, and OVERRULED, in part.

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense[;] (b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible[;] (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., §430.20.)

In general, “[a]n affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §1009.) “The same pleading of ‘ultimate facts’ rather than ‘evidentiary’ matter or ‘legal conclusions’ is required as in pleading the compliant. [¶] 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.’” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶6:459, p. 6-140 citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

A. Comparative fault/ contributory negligence.

As a first affirmative defense, defendants Helen Chan and Hong Suen Chan allege, “The incident or incidents complained of by plaintiffs herein were caused, in whole or in part, by the negligence of some or all of the plaintiffs. Any recover y the culpable plaintiffs in this case must be reduced by that percentage of their negligence which contributed to the incident or incidents.”

CACI, No. 405 sets forth the jury instruction for contributory negligence as follows:

[Name of defendant] claims that [name of plaintiff]’s own negligence contributed to [his/her] harm. To succeed on this claim, [name of defendant] must prove both of the following:
1. That [name of plaintiff] was negligent; and
2. That [name of plaintiff]’s negligence was a substantial factor in causing [his/her] harm.
If [name of defendant] proves the above, [name of plaintiff]’s damages are reduced by your determination of the percentage of [name of plaintiff]’s responsibility.

Defendants Helen Chan and Hong Suen Chan’s first affirmative defense is pleaded with as much detail as Plaintiffs in asserting their claim for general negligence where Plaintiffs allege, “Defendants negligently breached said duties (to other pedestrians and drivers on the road to use reasonable care) and unreasonably and negligently operated a motor vehicle.” (Complaint, ¶GN-1.)

Plaintiffs’ demurrer to defendants Helen Chan and Hong Suen Chan’s first affirmative defense on the ground that answer does not state facts sufficient to constitute a defense is OVERRULED.

B. Failure to mitigate.

“ ‘ “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffers damage … has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.” ’ Under the doctrine, ‘[a] plaintiff may not recover for damages avoidable through ordinary care and reasonable exertion.’ However, ‘[t]he duty to mitigate damages does not require an injured party to do what is unreasonable or impracticable.’ ” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111 (Agam); internal citations omitted; see also CACI No. 358.)

In Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 86 (overruled on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503), the court wrote, “Failure to mitigate damages, however, is a matter of affirmative defense that must be pleaded and proved by appellants.” “Whether a plaintiff acted reasonably to mitigate damages … is a factual matter to be determined by the trier of fact … .” (Agam, supra, 236 Cal.App.4th at p. 111.)

In demurring, Plaintiffs contend this second affirmative defense fails to state any facts in support. California Forms of Pleading and Practice suggests the following allegation:

By the exercise of reasonable effort, plaintiff could have mitigated the amount of damages he/she/it suffered by _________________ [specify ability to mitigate damages and means of doing so, e.g., renting another truck to use in his/her/its business; vehicles that would have satisfied plaintiff’s requirements were available at rates that plaintiff could have afforded]; but plaintiff failed and refused, and continues to fail and refuse, to exercise a reasonable effort to mitigate the damages.

(15-177 California Forms of Pleading and Practice—Annotated Form 39; emphasis added.)

Similarly here, defendants Helen Chan and Hong Suen Chan should set forth what means they contend were available to Plaintiffs to mitigate. Accordingly, Plaintiffs’ demurrer to defendants Helen Chan and Hong Suen Chan’s second affirmative defense on the ground that answer does not state facts sufficient to constitute a defense is SUSTAINED with 10 days’ leave to amend.

C. Comparative fault.

“A defendant bears the burden of proving affirmative defenses and indemnity cross-claims. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries. Placing the burden on defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369; see also CACI, No. 406.)

Similar to the first affirmative defense, defendants Helen Chan and Hong Suen Chan have alleged, in relevant part, that “[d]amages complained of by plaintiffs herein were caused, in whole or in part, by acts and omissions of person other than these answering defendants.” This is a sufficient allegation to raise the doctrine of comparative fault. Any further detail can be obtained during discovery.

Accordingly, Plaintiffs’ demurrer to defendants Helen Chan and Hong Suen Chan’s third affirmative defense on the ground that answer does not state facts sufficient to constitute a defense is OVERRULED.

D. Failure to state facts sufficient to constitute cause of action.

Defendants Helen Chan and Hong Suen Chan’s fourth affirmative defense is that the complaint and/or causes of action therein fail to state a cause of action. “‘Failure to state facts sufficient to constitute a cause of action,’ and the ‘court lacks subject matter jurisdiction,’ are not waived. These objections can be raised at any time, even if not asserted by demurrer or answer.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:33, p. 7(I)-18 citing Code Civ. Proc. §430.80, subd. (a); Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1413.) “These … objections go to the court’s power to grant relief; and hence, are never waived.” (Id. at ¶7:34, p. 7(I)-18.) There does not appear to be any prejudice to the Plaintiffs in allowing such an objection to be made as an affirmative defense. Furthermore, there are no factual allegations which are necessary to raise the objection and so this defense would appear to be properly pled.

Accordingly, Plaintiffs’ demurrer to defendants Helen Chan and Hong Suen Chan’s fourth affirmative defense on the ground that answer does not state facts sufficient to constitute a defense is OVERRULED.

E. Settlement/ Release.

As a fifth affirmative defense, defendants Helen Chan and Hong Suen Chan allege, “that prior to the filing of the complaint herein, plaintiffs entered into a settlement for the property damage to and loss of use of said plaintiffs’ vehicle and released all claims for such damages.” This is a factual averment and sufficient to state an affirmative defense of release of liability.

Accordingly, Plaintiffs’ demurrer to defendants Helen Chan and Hong Suen Chan’s fifth affirmative defense on the ground that answer does not state facts sufficient to constitute a defense is OVERRULED