MELINDA LOU MINKUS VS RODNEI DASILVA LOPEZ

Tentative Rulings

Case Number: *******8117 Hearing Date: March 22, 2023 Dept: M

Hearing Date: March 22, 2023

Moving Parties: Plaintiff Melinda Lou Minkus

Responding Party: Defendant Rodnei Da Silva Lopez

Motion For Terminating Sanctions to Strike Defendant’s Answer and Have Default Entered Against Defendant

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED.

BACKGROUND

On May 13, 2021, plaintiff Melinda Lou Minkus filed a complaint against defendant Rodnei Da Silva Lopez for motor vehicle negligence. Plaintiff alleges she was lawfully and properly crossing the north crosswalk of Monterey Boulevard heading westbound on Pier Avenue in the City of Hermosa Beach, California, when defendant negligently drove his motor vehicle into plaintiff’s person.

Between November 15 and November 17, 2021, plaintiff filed four motions to compel defendant’s further responses to plaintiff’s form interrogatories, special interrogatories, requests for admission, and request for production of documents.

On February 25, 2022, the court granted plaintiff’s four motions to compel further responses and ordered defendant to serve supplemental responses to plaintiff’s written discovery within ten days.

On March 18, 2022, plaintiff filed a motion to strike defendant’s answer and/or for the imposition of issue and evidentiary sanctions for defendant’s failure to comply with the court’s February 25, 2022 discovery order and for additional monetary sanctions against defendant and his counsel of record.

On April 20, 2022, the court granted plaintiff’s motion for the issuance of monetary sanctions, awarding $1,160.00 in sanctions against defendant (client only), and continued hearing upon the remainder of plaintiff’s motion to May 24, 2022, ordering the parties to file supplemental briefing.

On May 24, 2022, the court granted plaintiff’s motion to strike defendant’s answer, and effectively ordered defendants 1st, 2nd, 3rd, 4th, 6th, and 7th affirmative defenses within defendant’s first amended answer be stricken as a form of issue and/or evidence sanctions.

LEGAL AUTHORITY

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . (d) The court may impose a terminating sanction by one of the following orders: . . . (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.” CCP 2023.030, subd. (d)(1) (italics added). A “misuse of the discovery process” is defined by Code of Civil Procedure section 2030.010 as including “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” CCP 2023.010, subd. (d), (g).

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted). “Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611. The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, 500, 605.

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, fn. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

DISCUSSION

Plaintiff Melinda Lou Minkus moves for an order striking defendant Rodnei Dasilva Lopes’ operative first amended answer and entering default against defendant on the ground defendant has failed to obey a plethora of orders issued by the court, including, but not limited to, February 25, 2022 order compelling defendant’s service of supplemental responses to plaintiff’s written discovery by March 7, 2022, an April 20, 2022 order compelling defendant’s payment of monetary sanctions to plaintiff, a May 24, 2022 order requiring defendant’s participation in private mediation, and a January 27, 2023 order requiring plaintiff’s attendance during a mandatory settlement conference. Plaintiff notes that although on May 24, 2022, the court granted plaintiff’s motion for issue/evidentiary sanctions, striking all of defendant’s affirmative defenses, the FAA with a general denial remains.

Plaintiff argues terminating sanctions by way of striking defendant’s first amended answer and entering default against defendant is warranted as defendant habitually failed to obey the court’s discovery, and other orders.

The court notes that the April 20, 2022 order, May 24, 2022 order, and January 27, 2023 order are not discovery orders. Whether defendant failed to comply with the order to pay additional monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions should be imposed, and the court has not considered that factor in making its determination. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 610, 615. A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, Code of Civil Procedure 680.010, et seq. Id. at 615.

The court notes that it has already imposed sanctions—monetary, issue, and evidence sanctions (by striking the 1^st, 2^nd, 3^rd, 4^th, 6^th, and 7^th affirmative defenses in the FAA) via three orders—for defendant’s misuse of the discovery process for disobeying the February 25, 2022 order to serve supplemental responses. The court finds that further sanctions are not warranted.

The motion is thus DENIED.

Plaintiff is ordered to give notice of ruling.

Case Number: *******8117 Hearing Date: March 15, 2023 Dept: M

Hearing Date: March 15, 2023

Moving Parties: Plaintiff, Melinda Lou Minkus

Responding Party: Defendant, Rodnei Da Silva Lopez

Motion For Terminating Sanctions to Strike Defendant’s Answer and Have Default Entered Against Defendant

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. The court orders defendant’s first amended answer STRICKEN, and default issued against defendant.

BACKGROUND

On May 13, 2021, plaintiff Melinda Lou Minkus filed a complaint against defendant Rodnei Da Silva Lopez for motor vehicle negligence. Plaintiff alleges she was lawfully and properly crossing the north crosswalk of Monterey Boulevard heading westbound on Pier Avenue in the City of Hermosa Beach, California, when defendant negligently drove his motor vehicle into plaintiff’s person.

Between November 15 and November 17, 2021, plaintiff filed four motions to compel defendant’s further responses to plaintiff’s form interrogatories, special interrogatories, requests for admission, and request for production of documents.

On February 25, 2022, the court granted plaintiff’s four motions to compel further responses and ordered defendant to serve supplemental responses to plaintiff’s written discovery within 10 days.

On March 18, 2022, plaintiff filed a motion to strike defendant’s answer and/or for the imposition of issue and evidentiary sanctions for defendant’s failure to comply with the court’s February 25, 2022 discovery order and for additional monetary sanctions against defendant and his counsel of record.

On April 20, 2022, the court granted plaintiff’s motion for the issuance of monetary sanctions, awarding $1,160.00 in sanctions against defendant (client only), and continued hearing upon the remainder of plaintiff’s motion to May 24, 2022, ordering the parties to file supplemental briefing.

On May 24, 2022, the court granted plaintiff’s motion to strike defendant’s answer, and effectively ordered defendants 1st, 2nd, 3rd, 4th, 6th, and 7th affirmative defenses within defendant’s first amended answer be stricken as a form of issue and/or evidence sanctions.

LEGAL AUTHORITY

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . (d) The court may impose a terminating sanction by one of the following orders: . . . (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.” CCP 2023.030, subd. (d)(1) (italics added). A “misuse of the discovery process” is defined by Code of Civil Procedure section 2030.010 as including “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.” CCP 2023.010, subd. (d), (g).

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted). “Lack of diligence may be deemed willful in the sense that the party understood his obligation, had the ability to comply, and failed to comply.” Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611. The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, 500, 605.

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, fn. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

DISCUSSION

Plaintiff moves for an order striking defendant’s operative first amended answer and entering default against defendant on the ground defendant has failed to obey a plethora of orders issued by the court, including, but not limited to, an order compelling defendant’s service of supplemental responses to plaintiff’s written discovery, an order compelling defendant’s payment of monetary sanctions to plaintiff, an order requiring defendant’s participation in private mediation, and an order requiring plaintiff’s attendance during a mandatory settlement conference. Plaintiff contends terminating sanctions by way of striking defendant’s first amended answer and entering default against defendant is warranted as defendant habitually failed to obey the court’s discovery, and other, orders.

Following review of the moving, opposing, and reply papers, the court concludes terminating sanctions may be issued against defendant, pursuant to Code of Civil Procedure section 2023.030, subdivision (d)(1). CCP 2023.030, subd. (d)(1). The court concludes the evidence demonstrates defendant has repeatedly engaged in the “misuse of the discovery process”, as defined by Code of Civil Procedure section 2023.010, and therefore, terminating sanctions by way of striking defendant’s operative first amended answer and entering default against defendant is justified. CCP 2023.010, subd. (g), 2023.030, subd. (d)(1). Specifically, Defendant has engaged in a “misuse of the discovery process” by “[d]isobeying a court order to provide discovery”. CCP 2023.010, subd. (g). The court observes, on February 25, 2022, the court issued an order granting plaintiff’s four motions to compel further responses and ordering defendant to serve supplemental responses to plaintiff’s four sets of written discovery no later than March 7, 2022. Glugoski Decl., Ex. 2. While over one year has lapsed since the issuance of the court’s order, defendant has repeatedly failed to serve supplemental responses in compliance with the court’s order. Id., 7. Furthermore, the court observes defendant has failed to serve a supplemental response in compliance with the court’s order despite the fact defendant’s failure to respond has been the subject of a previous motion for issue, evidentiary, and monetary sanctions. Id., 11. Defendant has had ample time and opportunity to comply with the court’s order, to no avail. According, the court concludes the submitted evidence unambiguously demonstrates defendant has repeatedly engaged in the “misuse of the discovery process”, as defined by Code of Civil Procedure section 2023.010, by “[d]isobeying a court order to provide discovery”, and therefore, terminating sanctions by way of striking defendant’s operative first amended answer and entering default against defendant is justified. CCP 2023.010, subd. (g).

Furthermore, the court concludes, while terminating sanctions “‘should not be issued lightly’”, the substantive and procedural history of this action demonstrate “‘less severe sanctions would not produce compliance with the discovery rules . . . .’” Los Defensores, 223 Cal. App. 4th at 390. As alluded to above, plaintiff previously filed a motion for evidentiary, issue, and monetary sanctions against defendant, arguing the aforementioned sanctions are warranted against defendant due to defendant’s failure to serve supplemental responses in compliance with the court’s February 25, 2022 order. Glugoski Decl., 8-12, Ex. 3-4. Although the court granted plaintiff’s motion, issuing evidentiary, issue, and monetary sanctions against defendant, defendant has still failed to comply with the discovery rules by serving a supplemental response upon plaintiff. Additionally, the court finds defendant’s failure to comply with the discovery rules is willful. Defendant’s counsel represents that defendant is presently unwilling to participate in this litigation. Hodson Decl., pp. 2-8. Defendant has failed to maintain contact with his counsel of record and, when defense counsel’s private investigator ultimately located defendant and informed him his participation in this litigation was required in order to eliminate the risk of “being sanctioned” defendant stated, “he was not going to cooperate” and “would not sign anything” in connection with this action. Id., pp. 6:2-7, 8:7-10. The court may reasonably deduce defendant understood his obligation to participate in his defense and provide discovery responses, but has admittedly stated he would not cooperate in this action. Ibid.

Based on the foregoing, the court concludes terminating sanctions may be appropriately issued against defendant by way of striking defendant’s answer and entering default against defendant. The motion is GRANTED.

Plaintiff is ordered to give notice of ruling.

Case Number: *******8117 Hearing Date: May 24, 2022 Dept: M

Hearing Date: May 24, 2022

Moving Parties: Plaintiff Melinda Lou Minkus

Responding Party: Defendant Rodnei Dasilva Lopez

Motion to Strike Defendant’s Answer and/or for the Imposition of Issue and Evidentiary Sanctions and for Additional Monetary Sanctions

The court considered the moving, opposition, and reply papers and supplemental briefing. At the hearing on April 20, 2022, the court granted the motion as to monetary sanctions only as against defendant and continued the hearing to consider other sanctions.

RULING

The motion is GRANTED. The court orders that defendant’s 1^st, 2^nd, 3^rd, 4^th, 6^th, and 7^th affirmative defenses in his answer are STRICKEN as issue and/or evidence sanctions.

BACKGROUND

On May 13, 2021, plaintiff Melinda Lou Minkus filed a complaint against Rodnei Dasilva Lopez for motor vehicle negligence. Plaintiff alleges that on June 20, 2019, plaintiff was lawfully and properly a pedestrian in the north crosswalk on Monterey Blvd. heading westbound on Pier Avenue in Hermosa Beach when defendant struck her with his vehicle.

On August 4, 2021, the court (PI Hub) sustained plaintiff’s demurrer to defendant’s answer.

On October 13, 2021, the appellate court issued an order and alternative writ of mandate to vacate the August 4, 2021 order.

On February 25, 2022, the court granted plaintiff’s motions to compel further responses to form interrogatories, special interrogatories, request for production of documents, and request for admissions. Defendant and defendant’s attorney, Denetta E.J. Scott, Esq., were ordered to pay sanctions in the amount of $3,044.

On April 20, 2022, the court granted plaintiff’s motion to strike answer and/or for imposition of issue, evidentiary, and monetary sanctions as to additional monetary sanctions in the amount of $1,160 as against defendant only and continued the motion as to the other sanctions requests.

LEGAL AUTHORITY

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP 2025.450(h) (depositions); 2030.290(c) (interrogatories); 2031.300(c) (demands for production of documents). CCP 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

DISCUSSION

Plaintiff requests that the court issue terminating or issue and evidentiary and monetary sanctions for defendant’s failure to comply with the February 25, 2022 court order.

On April 20, 2022, the court granted plaintiff’s motion as to monetary sanctions as against defendant only in the amount of $1,160 and continued the hearing as to the remainder of the motion. The court noted that on February 25, 2022, the court had ordered defendant to respond further without objections to plaintiff’s initial sets of form and special interrogatories, request for production of documents, and request for admissions within ten days. Defendant had failed to serve responses and to comply with the court order and thus the court imposed monetary sanctions but declined to award terminating sanctions or impose issue and evidence sanctions. The court also noted that defense counsel stated that he had retained the services of an investigative firm to make contact with defendant but was unable to obtain defendant’s cooperation. The court stated that it would be amenable to imposing tailored issue or evidence sanctions provided that defendant continues to fail to comply with the court’s orders. The court ordered that plaintiff may file a supplemental brief in the form of a separate statement outlining specific discovery responses as they relate to specific affirmative defenses in order for the court to determine if certain defenses should be stricken for failure to state sufficient facts. The hearing was continued.

Plaintiff’s further submission/separate statement addresses the 1^st affirmative defense for negligence, 2^nd affirmative defense for comparative fault, 3^rd affirmative defense for failure to state a cause of action, 4^th affirmative defense for assumption of risk, 6^th affirmative defense for failure to mitigate, 7^th affirmative defense of unknown defenses. Plaintiff also contends that plaintiff’s request for admissions should be deemed admitted.

In a supplemental opposition, defendant argues that as to each of the affirmative defenses, such facts in support can be obtained through plaintiff’s deposition, which has been noticed. Further, defendant contends, plaintiff’s motion is premature as she has not sought to deem admissions.

As to each of the above referenced affirmative defenses, defendant asserted as follows: “Defendant alleges that on June 20, 2019, Defendant was traveling south at the intersection of Pier Avenue and Monterey Blvd. when he came to a complete stop at the intersection. The northbound crosswalk was obscured by a vehicle travelling westbound on Pier Avenue. Once the way was clear, Defendant entered the intersection at 5 mph. Defendant contends Plaintiff suddenly entered the crosswalk when it was not safe to do so and without reasonably ensuring the way was clear prior to entering the intersection. A vehicle crossing westbound on Pier Avenue obstructed Plaintiff’s view of the road and started crossing the intersection when it was not reasonably safe to do so, causing and creating an immediate hazard.”

As plaintiff contends, she served written discovery directed to the elements of defendant’s affirmative defenses, wherein defendant seeks to point to other factors leading to the accident and plaintiff’s injuries. Plaintiff identified specific requests for admission, interrogatories, and requests for production of documents that request information as to each of the defenses. Defendant has not indicated that he has produced further responses as ordered by the court on February 25, 2022. Defendant has the burden to support his affirmative defenses and to respond to discovery. Thus, defendant’s argument that plaintiff can rely on her own deposition as support for the affirmative defenses is without merit. The court declines to deem the truth of the matters in the request for admissions admitted because plaintiff had not sought or noticed such relief.

The motion is GRANTED. The court orders that defendant’s 1^st, 2^nd, 3^rd, 4^th, 6^th, and 7^th affirmative defenses in his answer are STRICKEN as issue and/or evidence sanctions.

Plaintiff is ordered to give notice of the ruling.

Case Number: *******8117 Hearing Date: April 20, 2022 Dept: M

Hearing Date: April 14, 2022

Moving Parties: Plaintiff Melinda Lou Minkus

Responding Party: Defendant Rodnei Dasilva Lopes

Motion to Strike Answer and/or for Imposition of Issue and Evidentiary Sanctions and for Additional Monetary Sanctions

The court considered the moving, opposition, and reply papers.

RULING

The motion to strike answer and/or for imposition of issue, evidentiary, and monetary sanctions is GRANTED IN PART AND DENIED IN PART.

The court grants plaintiff’s request for monetary sanctions in the sum of $1,160.00 against defendant for his failure to provide court-ordered discovery. The court denies all other requests.

BACKGROUND

On May 13, 2021, plaintiff Melinda Lou Minkus filed this action for damages against defendant Rodnei Dasilva Lopez and DOE defendants, following a pedestrian-automobile accident.

On February 25, 2022, the court granted various motions to compel discovery filed by plaintiff.

Plaintiff filed the pending motion to strike and for sanctions on March 18, 2022.

LEGAL AUTHORITY

Misuses of the discovery process are statutorily defined to include, inter alia, failing to respond or submit to an authorized method of discovery; making an unmeritorious objection to or evasive response to discovery; and disobeying a court order to provide to discovery. CCP 2023.010, subd. (d), (e), (f), (g). The court may impose a variety of sanctions against one misusing the discovery process.

Monetary sanctions may be imposed by the court by ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. CCP 2023.030, subd. (a).

Courts may impose issue sanctions “ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” CCP 2023.030, subd. (b). Issue sanctions prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses may also be imposed. Ibid. Similarly, “[t]he court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” CCP 2023.030, subd. (c).

Terminating sanctions may be imposed by one of the following orders: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) an order staying further proceedings by that party until an order for discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; or (4) an order rendering a judgment by default against that party. CCP 2023.030, subd. (d).

“[T]he purpose of discovery sanctions ‘is not “to provide a weapon for punishment, forfeiture, and the avoidance of a trial on the merits,”’ [citation], but to prevent abuse of the discovery process and correct the problem presented [citations].” McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210 [internal citations omitted]. A sanction order “cannot go further than is necessary to accomplish the purpose of discovery…” Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613. Instead, “[t]he penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793. However, a court may impose terminating sanctions “against a litigant who persists in the outright refusal to comply with his discovery obligations.” Ibid.

DISCUSSION

Plaintiff moves the court for an order striking defendant’s Answer, or, in the alternative, for the imposition of issue, evidence, and monetary sanctions against defendant and defense counsel of record, on the ground that defendant has failed to comply with this court’s February 25, 2022 order.

On February 25, 2022, the court granted plaintiff’s motions to compel further responses to various discovery, including plaintiff’s request for production of documents, set one, request for admissions, set one, special interrogatories, set one, and form interrogatories, set one. The court’s order contained the following rulings:

Defendant is ordered to respond further without objections to plaintiff’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Admissions, Set One, within ten days. Defendant is ordered to respond further without objections to plaintiff’s Request for Production of Documents, Set One and to produce responsive documents, within ten days. Defendant and defendant’s attorney Denetta E.J. Scott, Esq. are ordered to pay sanctions to plaintiff in the amount of $3,040, within 30 days.

February 25, 2022 Minute Order, p. 2.

Although defendant was required to respond by March 7, 2022, plaintiff’s counsel attests in declaration that responses had not been served as of March 18, 2022. Glugoski Decl., 16 [“Defendant…still has not complied with the court’s order and provided supplemental responses]. The court-ordered sanctions were, however, paid on March 15, 2022. Glugoski Decl., 18. Defendant does not appear to contest these points. Scott Decl., 7-8.

Plaintiff first requests the court impose terminating sanctions and strike defendant’s answer. The court denies Plaintiff’s motion for terminating sanctions. The court recognizes that defendant has not provided court-ordered discovery. However, given that defendant has violated portions of only one court order, the court finds terminating sanctions to be inappropriate at this juncture.

Plaintiff alternatively requests the imposition of issue and evidence sanctions “in the form of a preclusion by defendant to argue any of the affirmative defenses set forth in Defendant’s First Amended Answer [and a preclusion barring defendant from] introduc[ing] any evidence that would support any of the affirmative defenses set forth in Defendant’s First Amended Answer.” Mot., 4:15-17.

The court notes that the parties dispute whether a separate statement was required in support of this motion. The California Rules of Court require motions for issue and evidentiary sanctions to be accompanied by a separate statement. Cal. Rules of Ct., rule 3.1345, subd. (a)(7). However, when no response has been provided to a request for discovery, no separate statement is required. Cal. Rules of Ct., rule 3.1345, subd. (b)(1). Defendant contends that a separate statement is required here, while plaintiff takes the position that because defendant has failed to provide further responses, no separate statement is required. The court finds that no separate statement is required because defendant failed to provide responses to discovery, thereby falling within the exception outlined in rule 3.1345, subdivision (b)(1).

The court declines to impose issue and evidence sanctions as requested. It is undisputed that defendant has failed to serve discovery in accordance with this court’s February 25, 2022 order. Scott Decl., 7 [defense counsel retained the services of Hodson Investigations to make contact with defendant, but was unable to obtain defendant’s cooperation to assist counsel in completing the outstanding discovery, and thus were unable to provide verified further answers]. However, Plaintiff’s alternative requests for issue and evidence sanctions effectively seek the imposition of terminating sanctions, in that plaintiff seeks to strip defendant of all defenses and essentially secure judgment against defendant. Plaintiff requests the court preclude defendant from defending himself in this action by moving the court for an order precluding defendant from arguing any of his affirmative defenses and precluding defendant from introducing any evidence in support thereof. Courts must ‘“attempt[] to tailor the sanction to the harm caused by the withheld discovery.”’ Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992. The court finds plaintiff’s extensive requests for issue and evidence sanctions to be inappropriate at this stage and exercises its discretion to deny plaintiff’s alternative requests for issue and evidence sanctions. The court would be amenable to imposing tailored issue or evidence sanctions provided that defendant continues to fail to comply with this court’s orders; however, the sanctions requested in this motion—supported by violation of only one court order—are too severe to be warranted.

The court finds that the imposition of monetary sanctions against defense counsel would be unjust. CCP 2023.030, subd. (a). Defense counsel indicates in declaration that counsel has attempted to contact defendant by letter, email, telephone, and by employment of an investigation agency in order to obtain his responses. Scott Decl., 5-6. The court notes that plaintiff has argued, in reply, that this demonstrates that counsel has possibly acted in contravention of CCP 128.7. Specifically, plaintiff argues that if counsel had been attempting to contact defendant since September of 2021, then the facts alleged in the Amended Answer, dated November 24, 2021, would not have been obtained through reasonable inquiry nor based on evidentiary support. Although defense counsel’s declaration indicates that counsel attempted to contact defendant beginning on September 3, 2021, the declaration does not affirmatively indicate that counsel did not make contact with defendant before filing the amended answer. Instead, counsel’s declaration indicates only that Hodson Investigations’ services were required in both September of 2021 and February of 2022. Scott Decl., 3-5, 7. The court declines to find bad faith on the part of counsel based on this interpretation of counsel’s declaration. Moreover, to the extent plaintiff believes that sanctions are warranted under CCP 128.7, plaintiff must move by noticed motion under that provision. CCP 128.7, subd. (c)(1) [“A motion for sanctions under this section shall be made separately from other motions or requests…”].

The court, however, grants plaintiff’s request for additional monetary sanctions in the sum of $1,160.00 against defendant for his failure to provide court-ordered discovery. CCP 2023.030, subd. (a). The court finds that defendant has not acted with substantial justification, or that imposition of sanctions would otherwise be unjust.

The court denies plaintiff’s request for CCP 177.5 sanctions in the sum of $1,500.00, payable to the court. The court finds that the imposition of sanctions based on the misuse of the discovery process to be sufficient.

Case Number: *******8117 Hearing Date: February 25, 2022 Dept: M

Hearing Date: February 25, 2022

Moving Parties: Plaintiff Melinda Lou Minkus

Responding Party: Defendant Rodnei Dasilva Lopez

(1) Motion to Compel Further Responses to Form Interrogatories – General, Set One

(2) Motion to Compel Further Responses to Special Interrogatories, Set One

(3) Motion to Compel Further Responses to Request for Production of Documents, Set One

(4) Motion to Compel Further Responses to Request for Admissions, Set One

The court considered the moving, opposition, and reply papers.

RULING

Defendant is ordered to respond further without objections to plaintiff’s Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Admissions, Set One, within ten days.

Defendant is ordered to respond further without objections to plaintiff’s Request for Production of Documents, Set One and to produce responsive documents, within ten days.

Defendant and defendant’s attorney Denetta E.J. Scott, Esq. are ordered to pay sanctions to plaintiff in the amount of $3,040, within 30 days.

BACKGROUND

On May 13, 2021, plaintiff Melinda Lou Minkus filed a complaint against Rodnei Dasilva Lopez for motor vehicle negligence. Plaintiff alleges that on June 20, 2019, she lawfully and properly a pedestrian in the north crosswalk of Monterey Blvd. heading westbound on Pier Avenue, in Hermosa Beach, when she was struck by Lopez.

On August 4, 2021, the court (PI Hub) sustained plaintiff’s demurrer to defendant’s answer without leave to amend as to certain affirmative defenses.

On October 13, 2021, the appellate court issued an order and alternative writ of mandate to vacate the August 4, 2021 order and make a new and different order sustaining the demurrer with leave to amend.

On November 16, 2021, the court gave defendant leave to amend his answer.

On November 24, 2021, defendant filed a FAA.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP 1013); otherwise, the demanding party waives the right to compel any further response to the CCP 2031.010 demand. CCP 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP 2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP 2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP 2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP 2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP 2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP 2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

Request for Admissions

Under CCP 2033.290, “(a) On receipt of a response to request for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general. . . . (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

DISCUSSION

Plaintiff requests that the court compel defendant to respond further to her form interrogatories, special interrogatories, request for production of documents, and request for admissions.

On August 13, 2021, plaintiff propounded written discovery on defendant. Responses were due on September 17, 2021. On September 2, 2021, defense counsel requested a three-week extension. Plaintiff’s counsel gave an extension to respond to October 6, 2021. On that date, defendant filed a writ of mandate as to defendant’s answer. Defendant served responses on October 6, 2021 with objections only. According to plaintiff’s counsel, on October 7, 2021, plaintiff’s counsel sent a meet and confer to defense counsel. On October 13, 2021, defense counsel agreed to serve supplemental responses by October 18. On October 26, 2021, when plaintiff’s counsel had not received supplemental responses, plaintiff’s counsel sent a communication to defense counsel offering an extension to October 29, 2021. After not having received supplemental responses, plaintiff filed the motions on November 16, 2021.

In opposition, defendant contends that he served objections only on October 6, 2021 because he was not given additional extensions of time to respond and that he was awaiting the court of appeal’s decision on the writ of mandate. He contends that the motions are premature as defendant could not reasonably have answered the discovery while the writ of mandate was pending. He asserts that “[a]s the pleadings are settled, defendant requests a reasonable time to provide full and complete responses to the discovery.”

The court notes that the opposition was filed November 30, 2021. According to plaintiff’s reply filed on December 6, 2021, defendant has still not served supplemental responses.

The court finds that plaintiff properly served discovery requests and that defendant’s objections lack merit.

Accordingly, the motions are GRANTED.

Sanctions

Under CCP 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP 2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions against defendant and defense counsel in the amount of $17,116 in total for all four motions. The court finds that $3,040 ($400/hr. x 7 hrs., $240 filing fees) is a reasonable amount to be imposed against defendant and defendant’s attorney.

Moving party is ordered to give notice of the ruling.

b'

Case Number: *******8117 Hearing Date: December 13, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.

AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE SOUTHWEST DISTRICT, JUDGE DEIRDRE HILL presiding in DEPT. M of the TORRANCE COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.

COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.

DATED: December 13, 2021 ___________________________

Hon. Audra Mori

Judge of the Superior Court

b"

Case Number: *******8117 Hearing Date: August 4, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs, Melinda Lou Minkus (“Plaintiff”) filed this action against Defendant, Rodnei Dasilva Lopez (“Defendant”) for damages arising from a motor vehicle vs pedestrian accident. On June 21, 2021, Defendant filed his answer to the complaint asserting eight affirmative defenses.

Plaintiffs now demur to Defendant’s answer arguing they are improperly pled and do not allege sufficient facts to support the defenses. Defendant opposes the demurrer, and Plaintiff filed a reply.

2. Demurrer to Answer

a. Legal Standard

A party against whom an answer has been filed may object by demurrer to the answer. (CCP ; 430.20.) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. ;; 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is sustained only where the defects appear on the face of the pleading or are judicially noticeable. (Code Civ. Pro., ; 430.30.) No extrinsic evidence may be considered. (See Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

The effect of a general denial in an answer is to put in issue the material allegations of the complaint. (Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.)

In addition to denials, the answer should contain whatever affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are “new matter.” (CCP ;431.30(b).) In general, defendant bears the burden of proving “new matter” and, as such, must be specifically pleaded in the answer. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) The same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as in pleading the complaint. The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” (CCP ;431.30(g).) In sum, California is a fact pleading jurisdiction, not a notice pleading jurisdiction like the federal courts, such that merely putting an opposing party on notice is not sufficient. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561; see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.)

The critical inquiry when a plaintiff demurs to an answer is whether the answer raises a defense to plaintiff’s stated cause of action. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) The demurrer raises the objection that the answer does not state facts sufficient to constitute a defense. (Id. at 880.)

Demurrers to a complaint or an answer generally follow the same rules; however, there are some important differences. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.)

First, for a demurrer to an answer, the defect in question need not appear on the face of the answer. (Id.) “The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. [Citations.] This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. [Citations.]” (Id.) Second, for purposes of a demurrer to an answer, each defense in the answer must be considered separately without regard to any other defense. (Id. at 733-34.) Thus, a separately stated defense that is sufficient in form and substance when viewed in isolation does not become insufficient when, on looking at the answer as a whole, that defense appears inconsistent with other parts of the answer. (Id.) Third, because a defendant is entitled to plead inconsistent defenses, where one separate answer denies all of the allegations of the plaintiff's complaint, the plaintiff is not excused from making proof of the material facts because of admissions of some or all of them found in other and separate answers of the defendant. (Id. at 734.)

b. 3^rd and 7^th Affirmative Defenses

The third and seventh affirmative defenses in the answer allege the complaint fails to state a cause of action, and Plaintiff’s recovery is limited to those special damages permitted by Civil Code ; 3333.4.

These affirmative defenses are not in the style of “yes, the allegations are true, but,” as is required to state an affirmative defense. (See FPI Development, Inc., 231 Cal.App.3d at 383; see also Walsh v. West Valley Mission Community College Dist. (1998) 66 Cal.App.4th 1532, 1546 [Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a [denial].”].) These issues are properly joined by Defendant’s general denial and not appropriate pleaded as affirmative defenses. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal. App. 4th 1319, 1330; see LL B Sheet 1, LLC v. Loskutoff (2019) 362 F.Supp. 3d 804, 818 [“[f]ailure to state a claim is not a proper affirmative defense but, rather, asserts a defect in [the plaintiff's] prima facie case.”].) Defendant’s general denial puts all elements of Plaintiffs’ claims at issue, including causation and damages.

Therefore, the demurrer to the 3^rd and 7^th affirmative defenses is sustained without leave to amend.

c. 1^st, 2^nd, 5^th, and 6^th Affirmative Defenses

The 1^st, 2^nd, 5^th, and 6^th affirmative defenses merely contain boilerplate conclusory assertions, and thus, fail to state facts sufficient to constitute a defense as to the alleged defenses. (FPI v. Nakashima, 231 Cal.App.3d at 384.) These defenses must plead facts to support each defense.

Although Defendant contends he may waive the defenses if not raised now, waiver is an “intentional relinquishment of a known right after knowledge of the facts.” (Waller v. Truck Ins. Exch. (1995) 11 Cal. 4th 1, 31 [citations omitted].) Either Defendant is unaware of facts supporting its purported affirmative defenses- in which case there is no waiver- or it is aware of them and chose not to plead them in support of the affirmative defenses despite California being a fact pleading jurisdiction. Either way, Defendant’s answer is improperly pleaded. (Bach, 147 Cal.App.3d at 561; see Diodes, Inc., 260 Cal.App.2d at 250.)

The court suggests Defendant plead only affirmative defenses for which supporting facts are known. Although common, the practice of pleading affirmative defenses which have no basis in known facts is no more appropriate than pleading a complaint without factual support. If facts are subsequently discovered that support the addition of affirmative defenses, Defendant can bring a motion to amend the answer based on the new facts. (See Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159 [liberality is displayed in allowing amendments to answers].)

The burden is on Defendant to demonstrate there is a possibility it can state valid affirmative defenses if given leave to amend. While Defendant requests leave to amend, Defendant does not make any showing as to what facts it can allege to state valid defenses for the above. (See Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260.)

Accordingly, the demurrer to the 1^st, 2^nd, 5^th, and 6^th affirmative defenses is sustained without leave to amend.

d. 4^th Affirmative Defense

The 4^th affirmative defense claims the complaint is barred by the applicable statute of limitations.

The defense of statute of limitations need not include specific facts, but instead it may be stated generally with the applicable statute. (CCP ; 458.) In this case, Defendant does not plead the applicable statute under which Defendant asserts Plaintiff’s claims are barred by.

The demurrer to the 4^th affirmative defense, therefore, is sustained. Because this may be cured by stating the applicable statute, the demurrer is sustained with 20 days’ leave to amend as to this defense.

e. 8^th Affirmative Defense

The purported 8^th affirmative defense merely states Defendant reserves the right to raise and assert additional defenses after such defenses have been discovered. However, Defendant does not technically have a “right” to amend his answer; rather, Defendant must obtain leave of court to do so. This purported reservation therefore serves no purpose and is not actually a defense. CCP ; 473(a)(1) already reserves a party’s ability to amend a pleading, including the answer.

Again, the court suggests Defendant plead only affirmative defenses for which supporting facts are known; if subsequent facts are discovered, Defendant can bring a motion to amend the answer based on the new facts.

The demurrer is sustained as to the 8^th affirmative defense without leave to amend.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 4^th day of August, 2021