2013-00150115-CU-PO

Thomas Lisle vs. Joseph H. Wallace

Nature of Proceeding: Hearing on Demurrer

Filed By: Davis, Whitney A.

Plaintiffs’ Demurrer to the Affirmative Defenses is overruled in part and sustained in
part, with leave to amend for failure to state facts sufficient to constitute an affirmative
defense.

C.C.P., sec. 430.20 (a) provides for a demurrer to an Answer, where “The answer
does not state facts sufficient to constitute a defense.” Weil & Brown in California Civil
Procedure Before Trial (TRG 2011) § 7:35 provide a Practice Pointer that “A demurrer
can be an effective tool for eliminating ‘boilerplate’ affirmative defenses that often
appear in answers (e.g., ‘waiver’, ‘estoppel’, unclean hands’ etc.)” As noted in 5 Witkin
Cal. Proc. Plead § 1084 “The defenses 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.” (C.C.P. 431.30(g)).

Defendant has raised certain boilerplate affirmative defenses in the Answer without
any supporting facts. Although it is a rule more “honored in the breach than in the
observance,” a defendant must plead facts to support affirmative defenses. For
example, if defendant alleges on information and belief that the court does not have
jurisdiction, it must provide the factual basis for such claim. This is no different than the
burden placed on a plaintiff to plead facts. A complaint that contains a bare allegation
that the defendant was “negligent” would be sure to meet a demurrer. Affirmative
defenses in an answer should be treated no differently. If defendant has no facts to
support the conclusionary allegations at this time, it should delete the affirmative
defenses and seek leave to amend to add them if and when supporting facts are
discovered. FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 384.
In pleading, the party is required only to set forth the essential facts of its case with
reasonable precision and with particularity sufficient to acquaint the opposing party
with the nature, source and extent of his cause of action, or [in the case of an answer]
new matter constituting a defense. (See e.g. Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal. 2d 240, 245.) The rules applicable to pleading a proper cause of action
or affirmative defenses are similar. The particularity required in pleading facts depends
on the extent to which the defendant in fairness needs detailed information that can be
conveniently provided by the plaintiff; less particularity is required where the defendant
may be assumed to have knowledge of the facts equal to that possessed by the
plaintiff.

The instant action is brought by plaintiffs for premises liability, professional liability,
negligence and loss of consortium. It is alleged that LOP (Lake of the Pines) owns
and maintains a road network in the community, and installed bi-directional asphalt
speed humps spanning most of the width of the navigable roads. Hickory Way is
alleged to have speed “humps” that exceed 6% in grade, posing a hazard to cyclists.
(para. 10) During the installation of upgrades, it is alleged that the speed humps were
left by work crews in an incomplete and unguarded state that so road users would
encounter an “unmarked and unguarded asphalt curb instead of a subtle transition
from road to hump.” (para. 13) While bicycle riding on the roadway, plaintiff Thomas
Lisle encountered an unguarded and unmarked speed hump, suffering significant
personal injury.

The answer of LOP contains twenty-four (24) affirmative defenses.

Demurrer to the first affirmative defense is sustained with leave to amend. It merely
recites, that as to each cause of action, each “fails to state a cause of action.” This is
insufficient to apprise plaintiff of the basis for such allegation.

Second affirmative defense–“Comparative Negligence”–overruled. Read in
conjunction with the allegations of the complaint, this is sufficient to apprise plaintiff of
the legal defense. Discovery can fill in any factual claims defendant maintains. Each
of the remaining defenses will be addressed with these rationales.

Third affirmative defense–“Reasonable Conduct”–sustained with leave to amend.

Fourth affirmative defense–Assumption of Risk–overruled.

Fifth affirmative defense–Third Party Negligence–overruled.

Sixth affirmative defense–Joint or Several Obligations–overruled.

Seventh affirmative defense–Misuse of Property–sustained with leave to amend.

Eighth affirmative defense–Failure to Provide Notice–sustained with leave to amend.

Ninth affirmative defense–Arbitration–sustained with leave to amend.

Tenth affirmative defense–Statute of Limitations–sustained with leave to amend.

Eleventh affirmative defense–Laches–sustained with leave to amend.

Twelfth affirmative defense–Waiver and Estoppel–sustained with leave to amend.

Thirteenth affirmative defense–Unclean hand–sustained with leave to amend.

Fourteenth affirmative defense–Failure to mitigate–overruled.

Fifteenth affirmative defense–Indemnification–overruled.

Sixteenth affirmative defense–Frivolous–sustained with leave to amend.

Seventeenth affirmative defense–Punitive Damages–Preemption–overruled.

Eighteenth affirmative defense–Punitive damages–Lack of Clarity–sustained with
leave to amend.

Nineteenth affirmative defense–Punitive Damages–Due Process–overruled.

Twentieth affirmative defense– Punitive Damages–Lack of Notice–overruled.

Twenty-First Affirmative Defense–Punitive Damages–Corporate Discrimination–
overruled.

Twenty-Second affirmative defense–Punitive Damages–Lack of Bifurcation–
overruled.

Twenty-third affirmative defense–Punitive Damages–Non-Jury–overruled.

Twenty-Fourth affirmative defense–Other Defenses Reserved–sustained with leave to
amend.

Defendant may file and serve an Amended Answer on or before March 28, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.