Case Name: Mikutowicz v. Tu
Case No.: 1-13-CV-240729

On February 17, 2015, plaintiff Linhlinh Mikutowicz (“Plaintiff”) filed a first amended complaint (“FAC”) against defendants Binh Tu (“Tu”) and Tuan Ngo (collectively, “Defendants”), asserting causes of action for childhood sexual abuse, battery, intentional infliction of emotional distress and fraudulent conveyance. On June 9, 2015, defendant Tu filed his first amended answer (“FAA”), asserting 25 unnamed defenses. Plaintiff demurs to the first through fifth, seventh through eighteenth and twentieth through twenty-fifth affirmative defenses.

The demurrer to the first affirmative defense is OVERRULED. Although not an affirmative defense, it is a general denial as to all allegations. This is proper content of an answer pursuant to Code of Civil Procedure section 431.30, subdivision (f).

The second affirmative defense is based on an objection pursuant to Code of Civil Procedure section 430.30 and is not waived pursuant to section 430.80. The demurrer to the second affirmative defense is OVERRULED.

The third affirmative defense appears to allege contributory negligence by Plaintiff. The causes of action that are the subject of the FAC allege intentional conduct. Contributory negligence is not a defense to the FAC’s causes of action. The demurrer to the third affirmative defense is SUSTAINED without leave to amend.

The fourth affirmative defense alleges that other parties caused Plaintiff’s injuries. The demurrer to the fourth affirmative defense is OVERRULED.

The fifth affirmative defense alleges assumption of risk. Like contributory negligence, the assumption of the risk doctrine does not apply to the FAC’s causes of action. The demurrer to the fifth cause of action is SUSTAINED without leave to amend.

The seventh affirmative defense alleges that the action is barred by the statute of limitations. Code of Civil Procedure section 458 requires the statute of limitations to be pleaded either by alleging the facts constituting the time bar or alleging the statute and the subdivision of the statute which bars the action. (See Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 573, fn. 4.) Tu does not make any such allegations in his FAA. The demurrer to the seventh affirmative defense is SUSTAINED with 10 days leave to amend.

The eleventh affirmative defense alleges that the allegations of the FAC are uncertain, pursuant to Code of Civil Procedure section 430.10, subdivision (f). Tu has already demurred to the FAC. According to Code of Civil Procedure section 430.80, this ground for objection is waived if it not made by demurrer. The demurrer to the eleventh affirmative defense is SUSTAINED without leave to amend.

The fourteenth affirmative defense alleges full performance by Tu; the fifteenth affirmative defense alleges Plaintiff’s failure to perform her duties; and, the sixteenth affirmative defense alleges that Tu performed all of his obligations with the reasonable degree of skill, knowledge and care ordinarily possessed by persons performing similar services. The FAC does not assert a breach of contract cause of action. These affirmative defenses are not applicable to the FAC’s asserted causes of action and the demurrer to the fourteenth through sixteenth causes of action is SUSTAINED without leave to amend.

The seventeenth affirmative defense alleges that Plaintiff did not rely on any representations made by Tu. This allegation does not apply to any of the FAC’s causes of action. The demurrer to the seventeenth affirmative defense is SUSTAINED without leave to amend.

The twentieth affirmative defense alleges that Tu’s conduct “was lawful.” This is not a proper affirmative defense. The instant action is a civil action. At issue is whether Tu committed a tort, not a crime. The demurrer to the twentieth affirmative defense is SUSTAINED without leave to amend.

The twenty-third affirmative defense alleges that Tu “acted with the utmost good faith and legitimate purposes and without malice to plaintiff.” This appears to be a denial—the subject of the “first affirmative defense.” To the extent that it is a denial, it does not comply with section 431.30, subdivision (f). Nonetheless, this affirmative defense is duplicative and covered by the subject of the first affirmative defense. The demurrer to the twenty-third affirmative defense is SUSTAINED without leave to amend.

The twenty-fourth and twenty-fifth affirmative defenses allege that punitive damages should not be awarded because they are unconstitutional and violate due process. These are arguments that can be made at trial. Necessarily, then, there would not no violation of due process. Moreover, Civil Code section 3294 specifically authorizes punitive damages. These are not proper subjects for an affirmative defense. The demurrer to the twenty-fourth and twenty-fifth affirmative defenses is SUSTAINED without leave to amend.

Allegations in an affirmative defense which are proffered “in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the fact[s] which constitute the cause of action and are alleged in the complaint’ ” are insufficient to survive a demurrer. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; see also Metropolis Trust & Sav. Bank v. Monnier (1915) 169 Cal. 592, 596-597 [defenses must contain averments of fact and cannot rest upon “naked, unsupported, legal conclusion of the pleader”]; Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126 [an answer must allege ultimate facts and not mere conclusions of law].) The fourth, eighth through tenth, twelfth, thirteenth, eighteenth, twenty-first through twenty-third affirmative defenses are pled only in general and terse terms, without any fact-based details. The demurrer to the fourth, eighth through tenth, twelfth, thirteenth, seventeenth, eighteenth, twenty-first through twenty-second affirmative defenses is SUSTAINED with 10 days leave to amend.

The Court will prepare the order