2018-00239257-CU-MC

State of Ca Dept of Tax and Fee vs. Goldie C Prinzjakowitsch

Nature of Proceeding: Hearing on Demurrer

Filed By: Bowers, Jill

Plaintiff the People of the State of California Acting By and Through the California Department of Tax and Fee Administration’s unopposed demurrer to self-represented Defendant Golide Prinzjakowitsch’s answer is sustained with leave to amend.

Plaintiff’s request for judicial notice is granted.

In this action Plaintiff alleges a single cause of action for collection of delinquent sales and use taxes in the amount of $79,285.67. Self-represented Defendant has set forth 11 affirmative defenses.

CCP § 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 : “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.” (CCP § 431.30(g)).

As seen from the moving papers, the affirmative defenses are proffered in the form of terse legal conclusions, rather than as facts averred as carefully and with as much detail as the facts which constitute the cause of action. The demurrer is sustained for the reasons stated in Plaintiff’s memorandum of points and authorities. The Court construes Defendant’s failure to oppose the demurrer as a concession on the merits. ( D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Nevertheless, leave to amend is granted as this is the first challenge to the answer.

Defendant may file and serve an amended answer no later than January 24, 2019.

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