Case Number: BC517666 Hearing Date: May 19, 2014 Dept: 32

CASE NAME: Jose Marvin Gomez v. Prohibition Burgers & Beer, Inc.
CASE NO.: BC517666
HEARING DATE: 5/19/14
DEPARTMENT: 32
SUBJECT: Demurrer to Answer
MOVING PARTY: Plaintiff Jose Marvin Gomez
RESP. PARTY: Defendant Prohibition Burgers & Beer, Inc.

TENTATIVE RULING

Demurrer to Answer (Failure to State a Defense and for Uncertainty):

Second Affirmative Defense (Unclean Hands) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Third Affirmative Defense (Laches) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Fourth Affirmative Defense (Waiver) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Fifth Affirmative Defense (Estoppel) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Sixth Affirmative Defense (Statute of Limitations) OVERRULED.

Tenth Affirmative Defense (Labor Code Section 201) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Eleventh Affirmative Defense (Statute of Frauds) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Fourteenth Affirmative Defense (Employee Secreted Himself) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Nineteenth Affirmative Defense (Third Person Intervention) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Twenty Second Affirmative Defense (Failure to Exhaust Administrative Remedies) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Twenty Third Affirmative Defense (Mistake, Fraud, Duress, or Undue Influence) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

ANALYSIS

In most respects, the demurrer to the answer (or demurrer to an answer to a cross-complaint) is governed by the same rules as those applicable to the demurrer to the complaint. Thus, for the purposes of the ruling on demurrer, i.e., to test the sufficiency of the answer, it admits all facts well pleaded in the answer, including denials. (5 Witkin, Cal. Procedure (5th) Pleading § 1181.)

An affirmative defense must be pled 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, Cal. Procedure (5th) Pleading § 1082.)

Second, Third, and Fifth Affirmative Defenses – Estoppel, Laches, and Unclean Hands

Defendant has not pleaded any facts in support of these equitable defenses. Defendant merely asserts the legal conclusions that the complaint is barred by the doctrines of unclean hands, laches, and estoppel. Accordingly, these defenses are inadequately pleaded.

Plaintiff contends that a defendant employer cannot rely on equitable defenses in response to statutory wage and hour claims. Plaintiff cites case law stating that “principles of equity cannot be used to avoid a statutory mandate.” (Ghory v. Al-Lahham (1989) 209 Cal.App.3d 1487, 1492.) Ghory held that in a former employee’s action to recover statutory overtime compensation, the former employer could not assert unjust enrichment as an equitable defense.

On the other hand, “the doctrine of unclean hands may apply to legal as well as equitable claims.” (Camp v. Jeffer, Mangels, Butler & Marmaro (1995)
35 Cal.App.4th 620, 638.) “In California, a defendant may set up as many defenses as he may have, regardless of the question as to whether they are of a legal or equitable nature, because the distinction which exists under the common law between actions at law and suits in equity, and the forms thereof, have been abolished.” (Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO (1964) 227 Cal.App.2d 675, 728.) Plaintiff has not cited authorities holding that in no circumstances may an employer defendant maintain defenses for estoppel, laches, and unclean hands to statutory claims. Therefore, Defendant should be granted leave to amend to plead facts in support of these defenses.

The demurrer to the second, third, and fifth affirmative defenses is SUSTAINED WITH LEAVE TO AMEND.

Sixth Affirmative Defense – Statute of Limitations

Affirmative defenses based on the statute of limitations need only state the statute and subdivision of the applicable limitations period. (Davenport v. Stratton (1944) 24 Cal.2d 232, 246-247.) Defendant has alleged that the complaint is barred by several statutes of limitations, including CCP §§ 337, 338, 339 and 340, which satisfies Defendant’s pleading standard. In the demurrer, Plaintiff raises factual arguments as to the application of the affirmative defense that cannot be resolved on demurrer.

The demurrer to the sixth cause of action is OVERRULED.

Fourth, Tenth, Eleventh, Fourteenth, Nineteenth, and Twenty Third Affirmative Defenses – Waiver, Labor Code § 201, Statute of Frauds, Employee Secreted Himself, Third Person Intervention, and Mistake, Fraud, Duress or Undue Influence
Defendant has not alleged sufficient ultimate facts in support of these defenses. For instance, with regard to the twenty-third defense, Defendant asserts, without factual allegation, that the complaint is barred by mistake, fraud, duress, or undue influence. For the fourteenth defense, Defendant alleges that Plaintiff secreted himself without providing any factual basis for that claim. Such conclusory allegations are insufficient.
The demurrer to the fourth, tenth, eleventh, fourteenth, nineteenth, and twenty third affirmative defenses is SUSTAINED WITH LEAVE TO AMEND.
Twenty Second Affirmative Defense – Failure to Exhaust Administrative Remedies
Plaintiff contends that he was not required to exhaust administrative remedies because he has not made a claim for “civil penalties” listed in Labor Code § 2699.5. Statutory penalties which have been previously recovered before the enactment of PAGA Section 2699.5 do not require compliance with the filing requirements of Section 2699 et seq. (See Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 339-341.) Defendant has not pleaded any facts in support of this defense, and the Court therefore cannot determine the exhaustion requirement that Defendant contends is at issue.
The demurrer to the twenty second affirmative defense is SUSTAINED WITH LEAVE TO AMEND.
Uncertainty
Except with regard to the sixth affirmative defense, the other affirmative defenses challenged in the demurrer are uncertain because Defendant has asserted only legal conclusions and no ultimate facts. Accordingly, the demurrer for uncertainty is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the second through fifth, tenth, eleventh, fourteenth, nineteenth, twenty second, and twenty third affirmative defenses. The demurrer is OVERRULED as to the sixth affirmative defense.