Case Number: BC533838    Hearing Date: July 25, 2014    Dept: 46

This tentative ruling is posted at 3:05 p.m. on 7-23-2014.

This matter is set for hearing on 7-25-2014 as Matter #8 on 7-25-2014.

If there are no parties other than Plaintiff, then Plaintiff may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 974-5665, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling

Case Number: BC533838
DANIEL REYES VS NORMANDIE CLUB INCORPORATED ET AL
Filing Date: 01/22/2014
Case Type: Other Employment Complaint (General Jurisdiction)

07/25/2014
Hearing on Demurrer to Answer

TENTATIVE RULING: The motion is moot as to the 7th and 30th affirmative defenses as to which the parties reached agreement in the 07/22/2014 stipulation which declared that the 7th and 30th affirmative defenses were deemed stricken. The demurrer is overruled as to the 1st, 4th, 6th, 14th, 19th, 21st, 22nd and 29th affirmative defenses. The demurrer is sustained with leave to amend as to the 2nd, 3rd, 5th, 8th-13th, 15th-18th, 20th, 23rd-28th and 31st-33rd affirmative defenses. The demurrer is sustained without leave to amend as to the 34th affirmative defense. Normandie Club, LP shall have 10 days to file a First Amended Answer. Demurrers are sustained pursuant to CCP § 430.20(a)

This motion is MOOT in part (i.e., as to the 7th and 30th affirmative defenses, due to the 7/22/14 stipulation).

Normandie’s 1st affirmative defense (i.e., failure to state a cause of action), 4th (i.e., no entitlement to punitive damages), 6th (i.e., procedural due process), 14th (i.e., Workers’ Compensation), 19th (i.e., at-will employment), 21st (i.e., maintenance of anti-discrimination policy), 22nd (i.e., maintenance of anti-harassment policy) and 29th (i.e., attorney’s fees) affirmative defenses do not raise any new matter, but are merely responsive to the allegations pleaded by plaintiff. The demurrer to same is therefore OVERRULED.

The demurrer to the 28th affirmative defense (i.e., statute of limitations) is SUSTAINED, with leave given to amend. CCP §458 recognizes that the recitation of the statutory code section is the ultimate fact needed to plead a statute of limitations defense whereas Normandie’s answer does not comply with this requirement.

Plaintiff’s demurrer to the 8th cause of action (i.e., waiver), 9th cause of action (i.e., laches), 10th cause of action (i.e., unclean hands) and 11th cause of action (i.e., estoppel) affirmative defenses are also SUSTAINED with leave given to amend. Waiver, laches, estoppel and unclean hands must be specially pleaded. “Estoppel is an affirmative defense that cannot be proved unless specially pleaded by the defendant.” (See 5 Witkin, Cal. Proc. 4th (1997) Plead, supra, at § 1048, p. 498). “The method of pleading is the same, whether the estoppel is raised by the plaintiff or the defendant. The terms ‘estoppel’ or ‘estopped’ are often used, but they are legal conclusions that need not appear and are not alone sufficient. The allegations should set forth the circumstances from which the estoppel arises.” (See 5 Witkin, Cal. Proc. 4th (1997) Plead, supra, at § 1048, p. 499).

Normandie’s 2nd affirmative defense (i.e., failure to mitigate), 3rd affirmative defense (i.e., reasonableness and good faith), 5th affirmative defense (i.e., failure to exhaust administrative remedies), 12th affirmative defense (i.e., consent), 13th & 31st affirmative defenses (i.e., after-acquired evidence doctrine), 15th affirmative defense (good cause for discharge), 16th affirmative defense (i.e., arbitration), 17th affirmative defense (i.e., legitimate, non-discriminatory actions), 18th affirmative defense (i.e., business justification), 20th affirmative defense (i.e., P did not sustain any damages), 23rd affirmative defense (i.e., essential function), 24th affirmative defense (i.e., failure to use ordinary care), 25th (i.e., no public policy), 26th affirmative defense (i.e., speculative damages), 27th affirmative defense (i.e., avoidable consequences), 32nd and 33rd affirmative defenses (i.e., mix-motive) affirmative defenses raise new matter and must be specifically pleaded, so Plaintiff’s demurrer to same is SUSTAINED, with leave given to amend.

Normandie’s 34th affirmative defense (i.e., “other” defenses) is SUSTAINED without leave to amend inasmuch as this is not really an affirmative defense, but rather an impermissible attempt by Normandie to retain the right to assert any affirmative defenses it thinks might be pertinent in the future.