1. Demurrer to Answer; 2. Motion to Strike Portions of Answer
104 OSP Health Management Inc. vs. Pole USA Investment One, LLC
26-01546948 1. Demurrer to Answer 2. Motion to Strike Portions of Answer Plaintiff OSP Health Management Inc. (“Plaintiff”) demurs to the Answer of defendant Eggy Inc. d/b/a Yoo’s Place (“Defendant”) and moves to strike portions of the same for failure to state sufficient facts to constitute a defense and containing improper matter.
Plaintiff argues that many of the affirmative defenses in the Answer fail for lack of sufficient facts because they are pled in a conclusory matter. Plaintiff further argues that the affirmative defenses fail because they do not refer to the causes of action to which they relate and that certain defenses are not applicable and should be stricken.
An answer may include a general denial, specific denial, or new matter constituting an affirmative defense. (Code Civ. Proc., § 431.30.) “ ‘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.” ’ ” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) “Such ‘new matter’ is also known as ‘an affirmative defense.’ ” (Ibid.) “Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather . . . as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” ’ ” (Id. at pp. 812-813.)
If, as often occurs, a defendant does not have evidence of certain defenses but fears a waiver argument, they include the defense in conclusory, barren fashion. (See Ekstrom v. Marquesa at Monarch Beach HOA (2008) 168 Cal.App.4th 1111, 1122-1123.) Defendants should avoid this practice and only plead the defense when the evidence supports it and seek leave to amend if need be – which is to be routinely granted. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692-693
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The first, tenth, eleventh, and sixteenth asserted defenses are denials of what is alleged in the Complaint. They do not add any new matter, and they therefore do not fail for lack of details or facts. Thus, the Demurrer to these defenses is OVERRULED.
The remaining affirmative defenses raise “new matters” that are not found in the Complaint but are not supported by any facts or details. Instead, they rely on boilerplate legal conclusions. Thus, the Demurrer to these defenses is SUSTAINED with 20 days leave to amend.
Plaintiff’s Demurrer based on uncertainty should be OVERRULED, as demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)
As to the Motion to Strike, to the extent it is directed at any of the affirmative defenses other than the first, tenth, eleventh, and sixteenth, it is DENIED as MOOT in light of the ruling on the Demurrer. Plaintiff argues the tenth and sixteenth affirmative defenses for assumption of risk should be stricken because they are duplicative and are based on bare legal conclusions. Plaintiff cites no legal authority showing that striking duplicative or overlapping affirmative defenses is proper. Further, because these are denials of what is alleged in the Complaint and not new matter, additional facts are not required. Thus, the Motion to Strike as to the tenth and sixteenth affirmative defenses is DENIED.
Lastly, Plaintiff seeks to strike the prayer for attorney’s fees on the grounds that no basis for such recovery is alleged. It is “well-established [] that in the absence of a special statute or a contractual provision for attorney’s fees, the prevailing party is not entitled to recover attorney’s fees from his opponent.” (Olson v. Arnett (1980) 113 Cal.App.3d 59, 67.) Here, Defendant does not allege any statutory or contractual bases for its request for attorney’s fees. Thus, the Motion to Strike as to attorney’s fees is GRANTED with 20 days leave to amend. Moving party to give notice
105 Smith vs. Serna
25-01504168 Motion to Strike Attorneys’ Fees from Cross-Complaint Cross-Defendant, San Diego Gas & Electric Company moves for an order striking attorneys’ fees allegations in the Cross-Complaint of Samuel Joseph Serna and California Professional Engineering, Inc. at paragraphs 12, 16, 22, and 23, and the Prayer at page 6, paragraph 3. The Motion to Strike is GRANTED, with 10 days’ leave to amend.
Cross-Complainants, Samuel Joseph Serna and California Professional Engineering, Inc., provide that they sought to file an Amended Cross-Complaint that withdrew the attorneys’ fees, but it was rejected, and seek leave to file an Amended Cross-Complaint withdrawing attorneys’ fees. Thus, Cross-Complainants concede to Cross-Defendant San Diego Gas & Electric Company’s argument that the prayer for attorneys’ fees should be stricken as the prayer and allegations for attorneys’ fees are not supported by the allegations of the Cross-Complaint or operative complaint. (ROA 92, Declaration of Bahareh Habibi, ¶¶ 2-5.)
Cross-Complainants to file and serve an amended cross-complaint within 10 days. The amended crosscomplaint must be serially numbered to differentiate it from previous pleadings. (See California Rules of Court, rule 3.1324(a)(1).)