Robicheaux v. Rowshan

112 Robicheaux v. DEMURRER TO ANSWER – OVERRULED Rowshan, 2022- 01261647 Defendants and Cross-Complainants Kasra Rowshan, Newport Care Medical Group, Inc., Newport Care MSO, LLC, Linden Properties, LLC, Old Newport Group, LLC, and Top Surgical, LLC demur to all twenty four affirmative defense in Plaintiff and Cross-Defendant Grant Robicheaux’s First Amended Answer to the Second Amended Cross-Complaint.

The court could deny the demurrer as untimely. (CCP, §§ 12a(a), 471.5, & 1010.6(a)(3)(B).) The Curt will instead exercise its broad discretion to consider the demurrer, and the opposition thereto, which also appears to have been filed late.

On the merits, with regard to the general demurrer to all affirmative defenses on grounds on they fail to plead ultimate facts, or do not specify to which cause of action they are directed, “[n]o error or defect in a pleading is to be regarded unless it affects substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “The primary function of a pleading is to give the other party notice so that it may prepare its case [Citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Id.) There can be no serious argument that the parties do not have notice of the claims and defenses being asserted.

With regard to the argument that Plaintiff/Cross- defendant is judicially estopped from asserting the 24 th affirmative defense of release, the Court has never accepted as true Robicheaux’s argument that the “Release does not apply to the disputed allegations.” Rather, the Court has only determined that such a conclusion would be a fact that must be determined by the jury. As such, the affirmative defense of release is not barred by the doctrine of judicial estoppel.

Moving party to give notice.