Demurrer to answer
conclusive judicial admission because not necessarily complete or studied or overseen by counsel and reversing summary judgment); Scheiding, supra, at 77-78; Price v. Wells Fargo Bank (1989) 213 Cal. App. 3d 465, 483; Benavidez v. San Jose Police Dept. (1999) 71 Cal. App. 4th 853, 861-61.
There is no claim that Plaintiff has done that here.
Accordingly, Defendant’s motion for summary judgment is denied. Again, see Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 531 (“Taken together, this evidence would allow a reasonable jury to conclude that Beach House undertook to provide scaffolding for the use of its subcontractors, including plaintiff.”).
10. 2024-1424606 Vega vs. Bearley Case Management Conference
The demurrer of plaintiffs Philip Vega, Kevin Vega, and Contractors and Developers Bonding & Insurance Services Inc. to defendant Matthew Caldwell’s answer is overruled in part and sustained in part as set forth below.
Legal Standard
An answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant and (2) a statement of any new matter constituting a defense. Code Civ. Proc. § 431.30(b). The same pleading of ultimate facts rather than legal conclusions is required in pleading an answer as in pleading a complaint. See FPI Development, Inc. v. Nakashimi (1991) 231 Cal. App. 3d 367, 384 (stating rule that answer must allege facts “averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”). The defenses shall be separately stated and are to refer to the causes of action which they are intended to answer.
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The Rutter Guide says that a demurrer can be an effective tool for eliminating “boilerplate” affirmative defenses that often appear in answers (e.g., “waiver,” “estoppel,” “unclean hands,” etc.). A demurrer may be made on the ground of failure to plead sufficient facts to constitute a defense.
In general, whatever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”) and thus must be specially pleaded in the answer. See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 (finding failure to plead equitable defenses waived those
defenses). In other words, new matter is matter alleged for the first time in the answer, creating a new issue in the case not presented by the complaint. Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543; Coles v. Soulsby (1862) 21 Cal. 47, 50 (“new matter” is “that matter which the defendant must affirmatively establish”).
Again, a defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; 5 Witkin, Cal. Proc. 5th (2008) Pleading, § 1082, p. 515. The affirmative form in which the defendant phrases his or her answering averments does not make them new matter. If they merely contradict essential allegations of the complaint, they are simply denials in affirmative form (“argumentative denials”).
Frisch v. Caler (1862) 21 C. 71, 74; Goddard v. Fulton (1863) 21 C. 430, 436; Rancho Santa Margarita v. Vail (1938) 11 C.2d 501, 543. 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. (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. “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725, 732.
A determination of the sufficiency of an answer requires an examination of the complaint because the adequacy of the answer is with reference to the complaint it purports to answer. Id. at 733. Weil & Brown specifically notes that ‘[a] demurrer can be an effective tool for eliminating ‘boilerplate’ affirmative defenses that often appear in answers.” Weil & Brown, Cal. Prac. Guide, Civil Procedure before Trial (Rutter 2010) § 7:35:1.
Further, uncertainty is a disfavored ground on a demurrer. See, Rutter, Civil Procedure Before Trial, Section 7:85. Here, Plaintiff has not identified any particular uncertainty created by any allegations in the affirmative defenses; and the only argument heading in the memorandum of points and authorities is that
Defendant failed to plead sufficient facts. Accordingly, Plaintiff’s purported demurrer for uncertainty is not discussed further here.
A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal. 2d 872, 883.
A demurrer to an answer must be filed 10 days from the answer. Code Civ. Proc. § 430.040(b). This time is extended by five days when the answer is served by mail in California – as was the answer here. Code Civ. Proc. § 1013(a).
Discussion
Timing of Plaintiffs’ Demurrer Plaintiffs filed their demurrer on 2/25/26, two days beyond the 12 days (10 + 2 business days for email). Defendant’s counsel notes that she gave them an extension but now believes that they did not have the power to extend the deadline.
Even if this were correct, they did in fact make that agreement and Plaintiffs relied on it. It would be inequitable to enforce the 10 day limit – and Defendant is equitably estopped from asserting it. Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburg (2005) 131 Cal. App. 4th 1342, 1351. See also Pelton-Shepard industries, Inc. v, Delta Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568, 1585 (recognizing applicability of equitable estoppel to discovery motion deadlines but finding inapplicable because party’s assurances and delaying conduct not ultimately the reason motion was too late).
Affirmative Defenses In their notice, Plaintiffs state that they are demurring for uncertainty as well as for failure to allege sufficient fact to constitute a defense. But in the demurrers themselves, Plaintiffs only assert failure to allege sufficient facts. Further, nowhere in the supporting memorandum do they identify any specific portion of the answer that is uncertain. To the extent Plaintiffs demurred for uncertainty, that demurrer is overruled.
First Affirmative Defense for Failure to State For the defense, Defendant alleges that Plaintiffs have not alleged sufficient facts in their FAC to state a cause of action against Defendant. That is an allegation of ultimate fact and is sufficient. Taken in context with the FAC, it is entirely clear.
The demurrer to this affirmative defense is overruled.
Second Affirmative Defense of Truth Truth is a defense to a slander claim. Here Defendant alleges his statement were true. Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 581–582. See also Code Civ. Proc. §461. That is sufficient allegation of the ultimate fact.
The demurrer to this affirmative defense is overruled.
Third Affirmative Defense of Opinion Opinions are generally not actionable as defamation. Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384–385. For this defense Defendant alleges his statements were opinion. This is sufficient allegation of the ultimate fact.
The demurrer to this affirmative defense is overruled.
Fourth Affirmative Defense for Common Interest Privilege Civil Code section 47(c)(1) provides in relevant part: “A privileged publication or broadcast is one made: [¶] ... [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested....”
Here, Defendant has alleged his statements “were made without malice to a person interested in the subject matter and defendant Matthew Caldwell is a person who is also interested in the subject matter . . ..” This is sufficient allegation of the ultimate facts.
The demurrer to this affirmative defense is overruled.
Fifth Affirmative Defense of Self-Defense Privilege Restatement (Second) of Torts, section 594, recognizes a conditional privilege for statements necessary to protect the speaker’s interest, as follows: “A conditional privilege exists under the rule stated in this Section when the person making the publication reasonably believes that his interest in his own reputation has been unlawfully invaded by another person and that the defamatory matter that he publishes about the other is reasonably necessary to defend himself.
The privilege here is analogous to that of self-defense against battery, assault or false imprisonment .... Thus the defendant may publish in an appropriate manner anything that he reasonably believes to be necessary to defend his own reputation against the defamation of another, including the statement that his accuser is an unmitigated liar.” See also W. Broad. Co. v. Times-Mirror Co. (1936) 14 Cal.App.2d 120, 124 (discounting liability where statement made in response to prior accusation).
Defendant alleges his “statements were made to defend his reputation against another’s defamation.” This is sufficient allegation of the ultimate facts.
The demurrer to this affirmative defense is overruled.
Sixth Affirmative Defense of Lack of Damages Here, Defendant alleges that “Plaintiffs have not suffered any damages as a result of any actions taken by defendant Matthew Caldwell . . . .” Again, this is sufficient allegation of the ultimate facts.
The demurrer to this affirmative defense is overruled.
Seventh Affirmative Defense of Lack of Causation For this defense, Defendant alleges that his “allegedly defamatory statements were not a substantial factor in causing harm or damages to Plaintiffs.” This is sufficient allegation of the ultimate facts.
The demurrer to this affirmative defense is overruled.
Eighth Affirmative Defense of Statute of Limitations Code of Civil Procedure section 458 governs the pleading of a statute of limitations defense. It provides:
“Statute of limitations, how pleaded. In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” [Emphasis added.]
Thus, while no facts need be pleaded, a defendant must plead the subdivision of statutes identified in the affirmative defense.
Defendant has done this. He alleges Code of Civil Procedure section 340(c).
The demurrer to this affirmative defense is overruled.
Ninth Affirmative Defense for Laches, Waiver, Estoppel Defendant does not allege any facts for this affirmative defense. In his opposition he states that Plaintiffs are in a better position to know these facts so he need not plead evidentiary facts. But he
should at least plead the ultimate facts showing grounds for these defenses.
The demurrer to this affirmative defense is sustained with leave for Defendant to bring a motion to amend when and if Defendant discovers facts sufficient to support a defense of laches, waiver, or estoppel.
Tenth Affirmative Defense for Failure to State a Claim for Punitive Damages Here, Defendant alleges that “[t]he first amended complaint fails to state sufficient facts to constitute a valid claim for punitive or exemplary damages.”
This is a legal conclusion only. Plaintiffs’ objection for failure to allege sufficient facts does not really apply to what is essentially a pleading issue.
The demurrer to this affirmative defense is overruled.
Eleventh Affirmative Defense for Failure to Set Out Claims with Sufficient Particularity Defendant alleges here that “Plaintiffs have failed to set out their claims with sufficient particularity to permit defendant Matthew Caldwell to raise all appropriate defenses and, thus, defendant Matthew Caldwell reserves the right to assert additional defenses as a factual basis for these claims or defenses becomes known.” (Bold added.)
This is not really an affirmative defense but a reservation of potential defenses, so Plaintiffs’ failure to allege sufficient facts objection really does not make sense.
The demurrer to this affirmative defense is overruled.
11. 2024-1441105 Vanasopha vs. Bearley Case Management Conference, only.
12. 2025-1461619 Garcia vs. General Case Management Conference, only. Motors, LLC