Tentative Rulings

Case Number: ****9689    Hearing Date: November 12, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Background

Plaintiff Rita Reyes (“Plaintiff”) filed this action against Defendants Dror Harel (“Defendant”) and Harel Construction Specialties following a motor vehicle collision. Plaintiff dismissed Harel Construction Specialties on October 31, 2019. Now, Plaintiff demurs to the following affirmative defenses in Defendant’s answer:

#2 – Failure to state sufficient facts to support prayer for prejudgment interest

#3 – Failure to state sufficient facts to constitute a cause of action

#4 – Complaint is barred by Code of Civil Procedure section 474

#5 – Contributory negligence

#6 – Failure to mitigate damages

#8 – Negligence by third parties

#9 – Assumption of risk

#10 – Non-economic damages are barred by the Personal Responsibility Act of 1996

Plaintiff’s demurrer to the eighth, ninth, and tenth affirmative defenses in Defendant’s answer is sustained with leave to amend. The demurrer is otherwise overruled.

LEGAL STANDARD

In the answer to the complaint, a defendant must allege facts to support any matter the defendant will bear the burden to prove at trial. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) A plaintiff may demur to an answer if: “(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.  [¶] (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.”  (Code Civ. Proc., ; 430.20.)  

DISCUSSION

Defendant need not allege facts to support any affirmative defenses that negate elements of Plaintiff’s claims, as Plaintiff will bear the burden of proof on those matters at trial. For this reason, the Court overrules Plaintiff’s demurrer to the second, third, fourth, fifth, and sixth affirmative defenses in Defendants’ answers. These affirmative defenses merely deny elements that Plaintiff must prove at trial.

In the eighth, ninth, and tenth affirmative defenses, however, Defendants assert matters they will bear the burden to prove at trial. Defendant has not alleged any facts in support of these affirmative defenses. The Court therefore sustains the demurrer to these affirmative defenses. As Defendant might cure the deficiencies in the answer by alleging facts to support the affirmative defenses, the Court grants Defendant leave to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Conclusion and order

Plaintiff’s demurrer to the eighth, ninth, and tenth affirmative defenses in Defendant’s answer is sustained with leave to amend. Defendant is ordered to file an amended answer within twenty (20) days of notice. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 12, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court