Case Number: BC519959 Hearing Date: June 05, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

WEI WANG,
Plaintiff(s),
vs.

LI PING BAO, ET AL.,

Defendant(s).

CASE NO: BC519959

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE WITH LEAVE TO AMEND

Dept. 92
1:30 p.m. — #36
June 5, 2014

Plaintiff, Wei Wang’s Motion to Strike is Granted. Defendant is ordered to file a Second Amended Answer in compliance with this order within ten days.

Plaintiff, Wei Wang filed this action against Defendant, Li Ping Bao for damages arising out of an automobile accident. On 10/01/13, Defendant filed his answer to the complaint; the answer consisted of a denial and ten affirmative defenses. On 1/28/14, the Court heard and granted a motion to strike directed at the answer. The Court noted that the affirmative defenses in the answer failed to contain any factual support, and were therefore insufficiently pled.

On 2/05/14, Defendant filed an amended answer. The amended answer contains two affirmative defenses. The defenses are set forth as follows:
That at the alleged time and place in question, Plaintiff so negligently and carelessly acted, including failure to be attentive, as to proximately cause and contribute to the happening of the accident complained of, and to whatever injury or damage, if any, Plaintiff claims to have.

Defendant’s liability, if any, for each and every Plaintiff’s non-economic damages, is limited to Defendant’s proportionate share of fault in accordance with California Civil Code Section 1431.2; that Plaintiff failed to mitigate Plaintiffs damages by failing to seek prompt, appropriate medical care and treatment and by failing to follow the advise (sic) of doctors.

At this time, Plaintiff moves to strike the affirmative defenses, contending they are insufficiently pled. As the Court noted in its previous order, in addition to denials, the answer should contain whatever affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are ¿new matter.¿ (CCP ¿431.30(b).) In general, 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 same pleading of ¿ultimate facts¿ rather than evidentiary matter or legal conclusions is required as in pleading the 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.” (CCP ¿431.30(g).)

Defendant, in opposition to the motion, argues that the complaint itself is pled in vague and ambiguous terms, and for that reason Defendant can only respond with vague affirmative defenses. Defendant chose not to file a demurrer to the complaint, and the time to do so has run. Whether or not the complaint is adequately pled is not before the Court at this time; the only issue before the Court is whether the affirmative defenses in the answer are adequately pled.

Plaintiff is correct; they are not. There are no facts pled to support the legal conclusion that Plaintiff was “not attentive.” There are no facts pled to support the legal conclusion that Plaintiff did not seek medical attention and did not follow the advice of her doctors.

As the Court previously ruled in connection with the 1/28/14 motion to strike, Defendant should wait to plead affirmative defenses until such time as Defendant, through discovery, learns of facts to support those defenses. The motion to strike is granted. Defendant is ordered to file an amended answer, in compliance with this order, within ten days.

Dated this 5th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court