Plaintiff’s Demurrer and Motion to Strike
(37) Tentative Ruling
Re: Bellinger v. AMVA Corporation Superior Court Case No. 25CECG05670
Hearing Date: July 30, 2026 (Dept. 403)
Motion: Plaintiff’s Demurrer and Motion to Strike
Tentative Ruling:
To sustain the demurrer as to the eleventh, twelfth, thirteenth, and fifteenth affirmative defenses, without leave to amend. To overrule the demurrer as to the eighth affirmative defense.
To grant the motion to strike as to the eleventh, twelfth, thirteenth, and fifteenth affirmative defenses. To deny the motion to strike as to the fifth, sixth, and eighth affirmative defenses.
Defendant AMVA Corporation is to file a Second Amended Answer consistent with this ruling within 10 days of service of the minute order by the clerk.
Explanation:
Demurrer
The grounds of a demurrer to answer may be a failure to state sufficient facts to constitute a defense, uncertainty, or where an answer pled a contract, that it cannot be ascertained whether the contract was written or oral. (Code Civ. Proc., § 430.20.) Failure to state facts sufficient to constitute a defense is not subject to waiver and may be raised at any time. (Code Civ. Proc., § 430.80.)
The general rule is that the same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required in pleading an answer as in pleading a complaint. The answer must aver facts “as carefully and in as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384, quoting Pomeroy, Code Remedies (5th ed. 1929) § 563, at p. 917.) Conclusions of law are not sufficient to state a valid defense, and will not withstand a general demurrer. (FPI Development, Inc. v. Nakashima, supra, 2
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Plaintiff demurs as to the eighth, eleventh, twelfth, thirteenth, and fifteenth affirmative defenses. Defendant concedes as to the eleventh, twelfth, thirteenth, and fifteenth affirmative defenses. As such, only the eighth affirmative defense of unclean hands remains at issue.
The doctrine of unclean hands is a defense to an equitable action. (Aguayo v. Amaro (2013) 213 Cal.App.4th 1102, 1110.) It requires that a plaintiff come into the court with clean hands. (Ibid.) Conduct that could constitute unclean hands is that which “violates conscience, or good faith, or other equitable standards of conduct.” (Ibid.) Here, defendant asserts that plaintiff has alleged he was injured “while engaged in his own conduct.” (Amended Answer, Eighth Affirmative Defense.)
Defendant asserts that this is currently pled in order to avoid waiving it as a defense and that discovery may result in amending it. Defendant argues that it does not know all of the circumstances surrounding plaintiff’s injury, such as any motives and intentions. As such, the court overrules the demurrer as to the eighth affirmative defense.
Strike
A motion to strike may be used to address defects in pleadings otherwise not challengeable by a demurrer. (See Code Civ. Proc., § 435.) Code of Civil Procedure section 436 provides that a court may strike irrelevant, false, or improper matters, or parts of pleadings not filed in conformity with the rules of court. A motion to strike can be used to attack either a portion or the entirety of a pleading. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.)
Plaintiff seeks to strike defendant AMVA’s fifth, sixth, eighth, eleventh, twelfth, thirteenth, and fifteenth affirmative defenses. Defendant concedes as to the eleventh, twelfth, thirteenth, and fifteenth affirmative defenses. As such, only the fifth, sixth, and eighth affirmative defenses remain at issue.
For the fifth affirmative defense, plaintiff argues that the amended answer has falsely inserted matter. The fifth affirmative defense asserts assumption of the risk “as to Plaintiff’s allegation that he was engaging in playing basketball in a gym when he was injured.” (Amended Answer, Fifth Affirmative Defense.) The complaint does not allege an injury occurred while plaintiff was playing basketball. As such, the affirmative defense has added new information.
Defendants may introduce new matter not disclosed by the pleadings in a defense. (Jetty v. Craco (1954) 123 Cal.App.2d 876, 880.) Additionally, striking the entire affirmative defense where some language is challenged is not appropriate here. The court denies striking the fifth affirmative defense.
For the sixth affirmative defense of statute of limitations, plaintiff argues that the complaint was filed within the statute of limitations period. Defendant argues that this improperly relies on accepting the complaint as evidence. (Wisner v. Dignity Health (2022) 85 Cal.App.5th 35, 43.) Defendant again asserts that discovery is likely to resolve this defense. The court denies striking the sixth affirmative defense.
For the eighth affirmative defense, plaintiff argues the defense has falsely inserted matter. Again, defendant asserts that plaintiff’s injury may have been a result of his own conduct and that it should have an opportunity to develop this defense through discovery. The court denies striking the eighth affirmative defense.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: SMC on 7/29/26. (Judge’s initials) (Date)
35