Can Demurrer to an Answer in a Civil Case Be Filed?
Contrary to the common (erroneous) belief that no such thing exists, Demurrer to an Answer can and in proper cases should be filed. California CCP Section 430.20 in pertinent part provides: "A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan, 39 Cal.2d 311, 318 (1985).) The term "face of the complaint" includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blacbvell, 189 Cal.App.3d 91, 94 (1987).)
So, Affirmative Defenses without facts cannot be maintained.
What's the Purpose You Ask? And I'd Say Clean Up Pleadings and Eliminate Affirmative Defenses!
One of the kicks of filing a Demurrer to an Answer is the reaction from your opponent, which most often is confusion and panic. The judges however, are a mixed bag. Some judges get annoyed, some are amused and some are excited to see something different, new and proactive. I will further explain the benefits of filing a demurrer to an answer, but for now the basics. What in the answer is exactly subject to a demurrer?
"A statement of any new matter constitutes a defense." Code of Civil Procedure ?431.30(b)(2). This "new matter" is different than a simple denial of the allegations in the complaint. Rather, it is "some independent reason why plaintiff should be barred from recovery, even if everything alleged in the complaint was true." R. Weil & I. Brown, California Practice Guide: Civil Procedure Before Trial ?6:430 (Rutter Group).
The elimination of baseless Affirmative Defenses is what the Demurrer should go after. There is no downside and the benefits can be huge.
How Can You Eliminate the Affirmative Defenses?
It is very common to see Answers to Complaints with dozens of Affirmative Defenses that usually have no facts in them, but are filled with unsubstantiated conclusions. It's the 'cut-n-paste' cottage industry of legal assistants or paralegals, which the in-charge attorney usually signs without even reading. These Answers are nothing but 'frivolous pleadings' filed without factual basis, which the Plaintiff's bar should start enforcing. Here's how:
An affirmative defense cannot be pled in the form of "terse legal conclusions." FPI Development. Inc. vs. Nakashima (1991) 231 Cal.App.3d 367, 384. In order to state an affirmative defense, the answer must set forth facts "as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." Id. see also Weil & Brown, supra at ?6:459.
Next time you get an Answer with an Affirmative Defense that has no facts in it, challenge it by asking your opponent to either back it up or withdraw.
Leave to Amend Should Be Opposed Unless Offer of Proof of New Facts Is Made
Once you get the Answer with a standard list of boilerplate denials and legal conclusions without any facts, point your opponent to cases which were more than a century ago, wherein our Supreme Court explained that an affirmative defense must be pled in the same manner as if the facts were set forth in the complaint. In other words, the general requirement of stating the ultimate facts applies and if said ultimate facts are not pled the defense fails. Bruck vs. Tucker (1871) 42 Cal. 346 and Greiss vs. State Investment & Insurance Co. (1893) 98 Cal. 241.
As most Affirmative Defenses cannot be cured due to woefully inadequate factual support, the moving party should argue against the leave to amend or at a minimum demand offer of proof during the hearing. Leave to amend will not be granted where there is no reasonable possibility that the pleading can be amended to allege facts to establish a cause of action. Lawrence v. Bank of America, et al. 163 Cal.App. 3d 431, 436 (1985).
Benefits vs. Burdens of Filing Demurrer to an Answer
The burden of filing a demurrer after developing a good template, will be de minimis. The benefits however, are numerous. Let's say you received an Answer with four or five dozen Affirmative Defenses (the one I got last week had 53). You have to review and analyze them, you have to develop a discovery plan on how to neutralize or deal with each AD. To carry out the discovery plan alone can become very cumbersome, costly and take precious time and resources. Once you get rid of the ADs that have no facts to support them, you do not have to worry about wasting precious resources and energy. Also, while it is true that ADs can be asserted during litigation, upon discovery of new facts, most often however, your opponent can be prevented due to prior knowledge of the facts. You may argue for exclusion of said defenses due to untimely or improper pleading of the ADs. Laches and waiver can and will help you gain strategic advantage. Lastly, stripping ADs motivates resolution, so go for it.
Additional resources provided by the author
For Reference to California Code, visit www.leginfo.ca.gov
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