John Lascoe et al vs. Selene Finance LP et al

Eleventh Affirmative Defense: Bane Act

Defendant’s eleventh affirmative defense alleges Plaintiff’s claims under the Bane Act are barred because Defendants’ conduct was not a substantial factor in causing Plaintiff’s harm, and speech alone is not sufficient to constitute a violation of the Bane Act unless it involves a credible threat of violence. This defense is an argumentative denial of the allegations in the TAC, paired with a legal argument Plaintiff is not entitled to relief under the Bane Act, and therefore does not require Defendants to allege additional facts in support.

Accordingly, the demurrer to the eleventh affirmative defense is OVERRULED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. California law imposes the burden on the party who filed the pleading to demonstrate the manner in which they can amend their pleadings to state their claims. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. “Denial of leave to amend constitutes an abuse of discretion unless the [pleading] shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.

Here, Defendants have not shown the manner in which they could amend the answer to properly state their defenses against Plaintiff’s claims. However, given the liberal standard for permitting amendment of the pleadings, and the defects in the answer arising merely from a paucity of alleged facts, the Court will exercise its discretion to permit leave to amend the answer.

Conclusion

Accordingly, the Demurrer to the Answer is OVERRULED with respect to the first, eighth, and eleventh affirmative defenses and otherwise SUSTAINED with leave to amend. Defendants shall have 30 days leave to amend the answer from the date of this order.