ANTHONY VS RPK DEVELOPMENT CORPORATION

3. CASE # CASE NAME HEARING NAME ANTHONY VS RPK NOTICE AND DEMURRER TO RPK CVPS2505991 DEVELOPMENT DEVELOPMENT CORPROATION'S CORPORATION ANSWER

Tentative Ruling: A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).)

A demurrer tests the legal sufficiency of the pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Id.)

A demurrer to an answer may be asserted on three grounds: (1) the answer fails to state facts sufficient to constitute a defense; (2) the answer is uncertain; or (3) if the answer pleads a contract, the answer fails to identify if it is oral or written. (Code Civ. Proc. § 430.20.)

An answer shall contain: “(1) The general or specific denial of the material allegations of the complaint controverted by the defendant. (2) A statement of any new matter constituting a defense.” (Id. at §431.30(b).) A defendant may not claim affirmative relief in the answer. (Id. at § 431.30(c).)

An answer should contain affirmative defenses that the defendant may have, and that would otherwise not be at issue under a simple denial, i.e. new matter. (Code Civ. Proc. § 431.30(b).) “The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ 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 traverse.” (State Farm Mut. Auto Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)

Conclusory allegations of affirmative defenses without pleading the facts underlying the defenses, such as a laundry list of affirmative defenses stating essentially the name of a defense and that it bars recovery, will not raise an issue of material fact and will not withstand a motion for summary judgment. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Even when liberally construed in defendant’s favor, a defense must have a factual basis. (Id.) The function of pleading is to put the opposing party on notice of the claims to be addressed, and a pleading is generally required only to allege “ultimate facts.”

10th Affirmative Defense: The Code of Civil Procedure describes how to plead a statute of limitations defense. All the answer needs to allege is “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.” (Code Civ. Proc. § 458.) Here, Defendant does not allege the specific statutory codes for the statute of limitations to apply.

11th Affirmative Defense: The 11th affirmative defense is a failure to notify. Plaintiff asserts, without any legal authority, that there is no requirement to notify. Mere general citations to the Unruh and Disabled Persons Act does not demonstrate that lack of notice cannot be a defense. Without further legal citations, Plaintiff fails to demonstrate that this is not a valid defense.

20th Affirmative Defense: The 20th affirmative defense is compliance with notice and tow requirements under Vehicle Code section 22658. Defendant specifically alleges that there was signage posted, and Defendant provided written pre-authorization. The rules of pleading require that only ultimate facts be alleged; evidentiary facts supporting the allegation of ultimate fact need not be pleaded. (McKelly v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1469.) The distinction between “ultimate facts” and “conclusions” depends on whether the pleading gives adequate notice of the claims/defenses to be presented. (Estate of Lind (1989) 209 Cal.App.3d 1424, 1434.) That is sufficient for pleading purposes. Whether or not Defendant can prove it is not subject to demurrer.

Demurrer as to the 11th and 20th Affirmative Defense OVERRULED. Demurrer as to the 10th Affirmative Defense SUSTAINED with leave to amend. Defendant to file amended answer in 10 days. Case Management Conference continued to July 7, 2026, to be heard with Defendant 760 Towing, LLC’s motion to set aside default.

4. CASE # CASE NAME HEARING NAME PLAINTIFF'S MOTION TO STRIKE ANTHONY VS RPK AFFIRMATIVE DEFENSES FROM RPK CVPS2505991 DEVELOPMENT DEVELOPMENT CORPORATION'S CORPORATION THIRD AMENDED ANSWER

Tentative Ruling: A motion to strike may be applied to any irrelevant, false or improper matter, or any pleading not drawn or filed in conformity with the laws of the state, court rule, or court order. (Code Civ. Proc., § 436.)

Irrelevant is defined as: “(1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or crosscomplaint.” (Id. at § 431.10(b)-(c).) The grounds must appear on the face of the pleading or judicial notice. (Id. at § 437.)

However, as cautioned by the court in PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683: “[S]uch use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for the civil defendant.”

Plaintiff challenges the entire affirmative defense. An attack on an entire cause of action is grounds for demurrer, not a motion to strike. Thus, Plaintiff improperly seeks to strike an entire affirmative defense. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) A motion to strike is properly denied if the asserted defect is one that should have been raised by demurrer. (Warren v. Atchison, Topeka & Santa Fe Railway Co (1971) 19 Cal.App.3d 24, 41.) “A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

While these cases deal with causes of action, an affirmative defense is the equivalent to a cause of action for purposes of this motion. Motion to Strike DENIED in its entirety.

5. CASE # CASE NAME HEARING NAME MOTION FOR PREFERENTIAL TRIAL CVPS2507287 MANAVIE VS EXEL INC. SETTING BY ARLETA L. MANAVIE, MICHAEL A. MANAVIE

Tentative Ruling: C.C.P., § 36(a) provides that a party who is over 70 years of age may petition the court for preference, “which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (C.C.P., § 36(a)(1)-(2).)

Code of Civil Procedure section 36(c)(1) requires that a party filing a motion for preference support it with “a declaration of the moving party that all essential parties have been served with process or have appeared.”

Moreover, C.C.P., § 36(d) provides that the court may, in its discretion, grant a motion for preference “accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.”

Where a party meets the requisite standard for calendar preference based on the party’s health and status as more than 70 years of age, preference must be granted; the court cannot balance conflicting interests. (Fox v. Sup. Ct. (2018) 21 Cal.App.5th 529.) Notably, the requisite showing under § 36(a) may be made through an attorney affidavit “based upon information and belief as to the medical diagnosis and prognosis.” (C.C.P., § 36.5; see also Fox, supra, 21 Cal.App.5th at 534 [no doctor’s declaration is required under the standard of subdivision (a)].)

Trial must be set within 120 days even if opposing parties have not completed discovery or pretrial preparations. (C.C.P., § 36(f); Swaithes v. Sup. Ct. (1989) 212 Cal.App.3d 1082, 1086.)

Defendants contend the motion must be denied because an essential party, Hillebrand Last Mile USA, Inc., the entity allegedly involved in the incident, has not been named, served, or appeared. Defendants assert that on April 24, 2026, defense counsel identified this deficiency and requested amendment of the complaint.

In reply, Plaintiff demonstrates that Defendant Hillebrand Gori USA, LLC filed an answer to the complaint on April 8, 2026, through counsel David A. Shimkin of Cozen O’Connor, and that Defendant Hillebrand Gori USA, LLC has not asserted in its filed answer that the incorrect entity was named. Plaintiff also represents that Hillebrand Gori USA, LLC’s counsel, Mr. Shimkin, has not moved to quash, demurred, or otherwise asserted that the incorrect entity was named, and has not provided documentation to support such a claim.

Section 36(c)(1) requires a declaration that all essential parties have been served or appeared. The record before the Court demonstrates that all named defendants have filed answers. Whether a differently named entity should also be joined is a separate question that does not defeat the statutory prerequisite where all currently named parties have appeared.