Case Number: 19STCV27822 Hearing Date: February 18, 2020 Dept: 28

Demurrer without a Motion to Strike

Having considered the demurring and opposing papers, the Court rules as follows. No reply papers were filed.

BACKGROUND

On August 7, 2019, Plaintiff Brea Leao (“Plaintiff”) filed a complaint against Defendant Déjà vu Services, Inc. (“Defendant”). The complaint alleges premises liability, vicarious liability based on negligence, and negligent hiring for Defendant’s exotic dancer kneeing Plaintiff’s head in attempting to jump over her on August 12, 2017.

On January 7, 2020, Defendant filed a first amended answer (“FAA”) to Plaintiff’s complaint alleging six affirmative defenses.

On January 22, 2020, Plaintiff filed a demurrer to Defendant’s FAA pursuant to California Code of Civil Procedure section 430.20.

Trial is set for February 3, 2021.

PARTY’S REQUESTS

Plaintiff requests the Court sustain her demurrer to Defendants’ answer because no facts have been stated in support of the alleged affirmative defenses.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (See Code of Civ. Proc. § 430.41.)

Demurrer

Plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc. § 430.20.) Under California Code of Civil procedure section 431.30, subdivision (g), every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” Legal conclusions are insufficient and “. . . facts averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint . . .” must be alleged. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384). “Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

DISCUSSION

Meet and Confer

The Court finds that Plaintiff has filed a code compliant meet and confer declaration. (Kolmogorov Decl., ¶ 8.)

Demurrer

Plaintiff contends that Defendant’s FAA is devoid of any factual allegations. The FAA makes the following affirmative defenses: (1) statute of limitations, (2) comparative fault, (3) fault of others, (4) consent, (5) assumption of the risk, and (6) failure to mitigate.

Defendant’s statute of limitations affirmative defenses merely states the complaint is barred by California Code of Civil Procedure section 335.1. There is no allegation of when the incident occurred. Defendant’s allegation is conclusory. As such, insufficient facts have been alleged to state an affirmative defense for a statute of limitations affirmative defense.

Defendant’s comparative fault affirmative defense is similarly conclusory. This cause of action states Plaintiff’s failure to use reasonable care contributed to the harm complained of. There is no suggestion of what Plaintiff did that shows Plaintiff failed to use reasonable care. Thus, insufficient facts have been alleged to state an affirmative defense for comparative fault.

Defendant’s fault of others affirmative defense is, again, conclusory. This cause of action states other persons’, firms’, corporations’ and/or entities’ failure to use reasonable care contributed to the harm complained of. No party is named. No action is detailed. And, thus, insufficient facts have been alleged to state an affirmative defense for fault of others.

Defendant’s consent affirmative defense is, once again, conclusory. This affirmative defense alleges Plaintiff consented by words, acts, silence, or inaction reasonably understood to indicate consent to the alleged conduct. Defendant merely states the legal standard for consent and inserted a reference that Plaintiff’s action or inaction fulfilled this legal standard. Defendant does not allege facts, such as Plaintiff said “I agree to be subjected to negligent harm in your exotic dancer’s routines.” Therefore, insufficient facts have been alleged to state an affirmative defense for consent.

Defendant’s assumption of risk affirmative defense states Plaintiff voluntarily assumed the risk. Defendant merely uses the adjective “voluntarily” to add something more than the simple statement of “Plaintiff assumed the risk.” However, this descriptor does not amount to a factual allegation essential to allege an affirmative defense of assumption of risk.

Defendant’s affirmative defense of failure to mitigate is also conclusory. Defendant alleges Plaintiff could have avoided or reduced the harm with reasonable efforts or expenditures, but failed to do so. This is the bare legal standard for a failure to mitigate. Defendant does not allege facts.

The Court finds the demurrer lies because the FAA is conclusory.

CONCLUSION

The demurrer is SUSTAINED.

Defendant may file a second amended answer within 30 days of this ruling.

Plaintiff is ordered to give notice of this ruling.