Case Number: BC644953 Hearing Date: January 17, 2018 Dept: 32

Douglas Hummel,

Plaintiff,

v.

hudson pacific properties, et al.,

Defendants.

Case No.: BC644953

Hearing Date: January 17, 2018

[TENTATIVE] order RE:

Demurrer to Defendant hudson pacific properties, inc.’s answer to plaintiff’s complaint

BACKGROUND

Plaintiff Douglass Hummel (“Plaintiff”) alleges causes of action for (1) premises liability, and (2) negligence against Defendant Hudson Pacific Properties (“Defendant”). Plaintiff alleges that as he was walking down a ramp located on Defendant’s property, he slipped and suffered injuries do to wet paint.

DISCUSSION

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. . . .” (CCP § 430.20.) Although demurring to an answer is a commonly recognized practice, “[u]nlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873, 879–80.)

Plaintiff’s demurs to Defendant’s sixteenth affirmative defense, which alleges: “Should plaintiff receive payment of all or a portion of his medical expenses pursuant to a policy of insurance which pays said medical expenses, that Plaintiff is barred from again recovering those same expenses.” (Ans. ¶ 16.) Plaintiff contends that no such affirmative defense exists because a defendant may not attempt to mitigate damages by introducing evidence that a plaintiff has received compensation from a collateral source.

Plaintiff cites to Cox v. Superior Court (2002) 98 Cal. App. 4th 670, 673, which holds: “The collateral source rule precludes a defendant from reducing a plaintiff’s damages with evidence that the plaintiff received compensation from a source independent of the defendant.” However, Cox was decided in the context of a motion in limine. While the holding of Cox might preclude Defendant from submitting certain evidence at trial, it does not serve as a justification for sustaining a demurrer. In Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal. 4th 541, 574, the court noted that “insurance policies increasingly provide for either subrogation or refund of benefits upon recovery from the tortfeasor, thus transferring the risk from the victim’s insurer to the tortfeasor by way of the victim’s tort recovery. . . . [V]iewed from this perspective, the collateral source rule does not permit the plaintiff a double recovery, as critics of the rule have charged. . . .” In all likelihood, to the extent that Plaintiff had an insurance policy that paid for his medical expenses, the policy contains a subrogation and refund clause, and the collateral source rule would apply. However, these are all factual issues that cannot be resolved at the pleading stage. As such, it would be improper for the Court to strike this affirmative defense at this time.

The demurrer is OVERRULED.