Case Number: BC684613 Hearing Date: June 04, 2018 Dept: 34

SUBJECT: Demurrer to Answer

Moving Party: Plaintiff Steven Ocon

Resp. Party: None

The instant hearing is taken OFF CALENDAR because an Amended Answer was filed on 05/18/18.

BACKGROUND:

Plaintiff commenced this action on 11/27/17 against defendant for: (1) unlawful retaliation; (2) wrongful termination in violation of public policy; (3) unpaid wages; (4) willful issuance of inaccurate wage statements; (5) waiting time penalties; and (6) meal and rest break penalties.

Defendant filed an answer to the complaint on 03/29/18. Defendant filed a First Amended Answer on 05/18/18.

ANALYSIS:

Plaintiff filed his demurrer to the answer on 04/25/18. On 05/18/18, defendant filed an amended answer to the complaint. Accordingly, the demurrer is taken OFF-CALENDAR. (See Edmon & Karnow, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 7:122.16.)

However, even if the Court were not to take this demurrer off-calendar, it would have overruled the demurrer.

This demurrer is an example of an all-too-common practice in the Superior Court — that of counsel routinely filing a demurrer that could not possibly dispose of the case nor advance their party’s interests. This usually happens when defense counsel is demurring to a complaint, which, while perfectly intelligible, contains some technical deficiencies.

More and more – as is the case here – the Court is now seeing plaintiffs demurring to an answer.

All counsel know what is happening: defense counsel files an answer, and without any thought to the specific case at issue, cuts-and-pastes numerous “affirmative defenses.” In this case, Defendant asserted 34 affirmative defenses in its original answer; its Amended Answer contains has pared this down to “only” 25 affirmative defenses. Plaintiff in turn cuts-and-pastes a demurrer, arguing that defendant has not stated the facts underlying each affirmative defense.

Nothing would be gained were the Court to sustain this demurrer. As plaintiff’s counsel is fully aware, the Court would be required to give defendant leave to amend. All that would be achieved is the expenditure of at least another dozen hours of attorneys’ time. In addition to increasing the attorneys fees on both sides, this would result in preventing the case from being at issue for another three months. Such delay does not serve the interests of justice.

A much more efficient procedure would have been for plaintiff to simply propound the discovery necessary to find out the information that it seeks. Defendant’s answer was filed on March 29, 2018. Had plaintiff simply propounded interrogatories asking for all facts supporting each affirmative defense, plaintiff would have all the facts needed long before this motion is scheduled to be heard.

“The court must, in every stage of an action, disregard any error . . . or defect [] in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (CCP § 475.)

For the above reasons, had the Court not taken this demurrer off-calendar, it would have OVERRULED the demurrer.