Case Number: 19STCV29187 Hearing Date: February 06, 2020 Dept: A

# 5. Mario Ola v. Johnnie Harris

Case No.: 19STCV29187

Matter on calendar for: Demurrer and Motion to Strike the Answer

Tentative ruling:

Background

This is a personal injury action. Plaintiff Mario Alexander Barrios Ola alleges that he was traversing the crosswalk at the intersection of Avalon Boulevard and Colden Avenue when Defendant Johnnie Harris hit him with his vehicle and fled the scene.

Plaintiff now demurs and moves to strike the answer. Oppositions and replies have been filed and considered.

For the reasons set forth below, the Court finds as follows:

Standard

Demurrer

A demurrer tests the sufficiency of a pleading as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of a pleading, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the pleading party must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the [opposing party] with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the [defendant] will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (C.C.P., § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (C.C.P. § 437.) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (C.C.P., §§ 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Analysis

Judicial Notice

Plaintiff’s unopposed request for judicial notice of the Complaint and Answer filed in this action is granted.

Demurrer

Plaintiff argues affirmative defenses 1–11 are insufficient legal conclusions that fail to set forth “new matter”.

An answer must include a general or specific denial of the “material” allegations in the Complaint that are disputed by the Defendant. (C.C.P., § 431.30(b)(1).) It must also include “[a] statement of any new matter constituting a defense.” (C.C.P., § 431.30(b)(2).) ‘The phrase “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.” ’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.)

“Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.] Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather . . . as facts “averred as carefully and with as much detail as the facts which constitute the cause of action are alleged in the complaint.” ’ [FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.] ‘A party who fails to plead affirmative defenses waives them.’ [Citation.]” (Quantification, supra, 201 Cal.App.4th 758, 812.)

A review of the Answer shows the demurrer should be overruled as to affirmative defenses 1, 2, 7, 8, 9, and 10. Although these affirmative defenses are brief, they possess sufficient ultimate facts to apprise Plaintiff of the defense.

Affirmative defenses 4 and 11 appear to allege that Plaintiff was operating a motor vehicle, as they refence Civil Code § 3333.4 and seatbelts, respectively. The Complaint alleges Plaintiff was a pedestrian, so the Defendant, if he seeks to assert these defenses, must allege facts to support them, i.e., Plaintiff was operating a motor vehicle. Similarly, defense number 3 alleges laches, but fails to allege any facts that support this assertion.

Affirmative defense 5 is a general allegation that others may have contributed to the alleged accident. (Answer, ¶ 6.) This fails to contain facts pertaining to any other individuals, and Defendant’s opposition fails to outline legal support allowing such assertions unaccompanied by factual allegations.

Affirmative defense 6 is a legal assertion that the Complaint fails to state a cause of action. Plaintiff’s demurrer argues this is improper because the Complaint does state a cause of action. (Dem., pg. 7–8.) The demurrer does not possess authority showing that such an allegation to be improper or insufficient.

The demurrer is overruled as to causes of action 1, 2, 6, 7, 8, 9, and 10. The demurrer is sustained as to affirmative defenses 3, 4, 5, and 11.

Motion to Strike

The motion to strike is focused on affirmative defenses 12 and 13, which Plaintiff argues are legal conclusions that are irrelevant in the answer. Defendant argues they will be prejudiced if they are not able to assert these defenses in the answer, as the defenses will be waived. However, Defendant does not provide authority showing that Defendant would be precluded from arguing certain evidence is irrelevant in later proceedings.

The motion to strike is granted.

Ruling

The demurrer is overruled as to causes of action 1, 2, 6, 7, 8, 9, and 10. The demurrer is sustained as to affirmative defenses 3, 4, 5, and 11 with 20 days’ leave to amend. Any responsive pleading is due 20 days thereafter, or 25 if served by mail.

The motion to strike is granted with 20 days’ leave to amend. Any responsive pleading is due 20 days thereafter, or 25 if served by mail.

Next dates:

Notice: