Demurrer (Judge William Elfving)


Case Name: Pabla v. City of San Jose, et al.

Case No.: 2015-1-CV-289342

Defendant/cross-complainant City of San Jose (the ?City?) demurs to the cross-complaint filed by defendants/cross-complainants Gabriel Anthony Becerra Esparza (?Esparza?) and Armando Becerra (?Becerra?) and to the answer filed by both parties in response to the City?s own cross-complaint.

This action arises out of a motor vehicle accident.? On January 26, 2015, Esparza and Becerra were allegedly drag racing one another on Yerba Buena Road in San Jose when they lost control of their vehicles, collided with one another, and then collided with a guardrail on the road.? The vehicles then went through the guardrail and up onto the sidewalk, where they struck Kiran Pabla (the ?Decedent?), resulting in her death.? On December 22, 2015, the Decedent?s mother, plaintiff Parveen Pabla, in her individual capacity and as executor of the Decedent?s estate, filed a complaint for wrongful death and negligence against Esparza, Becerra, the City, the California Department of Transportation, and AT&T/Pacific Bell.

On February 4, 2016, the City filed a cross-complaint against Esparza, Becerra, Manuel Anthony Maldonado Avalos and Ricardo Gomez Esparza for indemnification and apportionment of fault.? Esparza and Becerra filed their answer on February 22, 2016.? That same day, they also filed a cross-complaint against the City, among others, for indemnification.

On March 7, 2016, the City filed the instant demurrers to Esparza and Becerra?s cross-complaint and their answer to the City?s cross-complaint.? Esparza and Becerra filed their oppositions on April 27, 2016.

  1. Requests for Judicial Notice

In support of their oppositions to the City?s demurrers, Esparza and Becerra request that the Court take judicial notice of their cross-complaint against the City and their answer to the City?s cross-complaint against them.? They further request that the Court take judicial notice of the Santa Clara Superior Court notice indicating that the City?s demurrer to their answer was filed on March 7, 2016.? These items are court records and therefore proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (d).? Consequently, Esparza and Becerra?s requests are GRANTED.

  1. The City?s Demurrer to Esparza and Becerra?s Answer
  1. Procedural Issues

As an initial procedural matter, Esparza and Becerra request that the Court reject the City?s demurrer for failure to meet the deadline proscribed by Code of Civil Procedure section 430.40, subdivision (b), which provides that ?a party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.?? Esparza and Becerra filed their answer to the City?s cross-complaint on February 22, 2016 and effectuated service by mail on that date.? They argue that even if the City was provided an additional five days to file as a result of the mailing pursuant to Code of Civil Procedure section 1013, subdivision (a), its demurrer would not have been timely given the filing deadline of March 2, 2016.? The City?s demurrer was not filed until March 7th.

Although the Court agrees that the demurrer was untimely filed, it has the discretion to hear the demurrer so long as its action ?does not affect the substantial rights of the parties.?? (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.)? As it is not persuaded that hearing the City?s demurrer will substantially impair Esparza and Becerra?s rights, the Court in its discretion will address the merits of the demurrer.

Esparza and Becerra additionally assert that the City failed to comply with the meet and confer procedures set forth in Code of Civil Procedure section 430.41.? This code section requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution of the demurring party?s objections. (Code Civ. Proc., ? 430.41, subd. (a).)? The meet and confer must be conducted in person or by telephone, must address each cause of action to be included in the demurrer and must involve the provision of legal support for the positions taken by the demurring party.? (Code Civ. Proc., ? 430.41, subd. (a)(1).)? If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer.? (Code Civ. Proc., ? 430.41, subd. (a)(3).)? If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which the demurrer would be due, a declaration stating that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.? (Code Civ. Proc., ? 430.41, subd. (a)(2).)

Esparza and Becerra contend that the City did not identify all of the specific causes of action that it believed were subject to demurrer or provide the legal support for those beliefs, and assert that because the City ultimately was not able to reach their counsel because he was out of the office, the 30-day extension should have been triggered with the filing of a declaration.? While the Court would prefer that parties actually address and resolve their issues through the meet and confer process, and the City would have been entitled to an extension based on is stated inability to get in touch with opposing counsel, the Court will nevertheless address the substantive merits of the demurrer now in the interests of judicial economy, noting that it is not permitted to overrule the demurrer for insufficient meet and confer efforts.? (Code Civ. Proc.,????????????? ? 430.41, subd. (a)(4).)

The City demurs to the answer and each of the four affirmative defenses asserted by Esparza and Becerra on the ground that each fails to state sufficient facts.? (Code Civ. Proc., ? 430.10, subd. (e).)? In their answer, Esparza and Becerra assert the following affirmative defenses: (1) failure to statute facts sufficient to constitute a cause of action; (2) conduct of others; (3) mitigation of damages; and (4) comparative negligence.

As a general matter, affirmative defenses pleaded in an answer must be pleaded in the same fashion, and with the same specificity, as a cause of action in a complaint.? (See FPI Development, Inc. v. A1 Nakashima (1991) 231 Cal.App.3d 367, 384 [stating that affirmative defenses must be ?averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint? and legal conclusions are insufficient].)? Here, all of Esparza and Becerra?a affirmative defenses are devoid of any supporting facts and thus fall well short of the aforementioned standard.

In the first affirmative defense for failure to state facts, there are no facts pleaded or analysis as to why the City?s cross-complaint fails to state facts sufficient to constitute a cause of action against Esparza and Becerra.? In the second affirmative defense for conduct of others, there are no facts pleaded which establish that other parties were involved, much less that they were proportionally at fault for the Decedent?s death.? In the third affirmative defense for failure to mitigate, there are no facts demonstrating a failure on the City?s part to take reasonable steps to mitigate the damages suffered.? Finally, in the fourth affirmative defense for comparative negligence, Esparza and Becerra fail to plead facts demonstrating that other parties were involved, how they were involved. and how their involvement was a substantial factor in causing the accident.? Given the absence of such necessary facts, the City?s demurrer to the answer (and affirmative defenses asserted therein) filed by Esparza and Becerra on the ground of failure to state sufficient facts is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.

  • The City?s Demurrer to Esparza and Becerra?s Cross-Complaint

As an initial matter, Esparza and Becerra raise the same procedural objection regarding the City?s alleged noncompliance with Code of Civil Procedure 430.41, subdivision (a), as they did in opposition to the City?s demurrer to their answer.? As with the preceding demurrer, the Court, in its discretion, will address the substantive merits of the demurrer in the interests of judicial economy.

The City demurs to the cross-complaint and both of the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ? 430.10, subd. (e).)? In demurring to Esparza and Becerra?s claims for indemnity and contribution, the City contends that they are deficiently pleaded because the cross-complaint is devoid of supporting facts and comprised entirely of boilerplate legal conclusions.? The cross-complaint is asserted against both the City and defendant/cross-defendant Manual Anthony Maldonado Avalos, the City asserts, but Esparza and Becerra make no factual distinction between them, much less articulate the factual basis for their claims against either party.? Consequently, the City argues, its demurrer should be sustained.

The Court finds the City?s contentions persuasive.? Generally, a complaint must contain ?a statement of the facts constituting the cause of action, in ordinary and concise language? (Code Civ. Proc., ? 425.10), and boilerplate allegations are insufficient to meet this standard.? (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.)? Esparza and Becerra?s cross-complaint is completely devoid of facts, including those which describe the incident which is at the heart of this action.? The factual basis for indemnification or contribution by the City is simply not pleaded in any fashion in the cross-complaint.? Consequently, the City?s demurrer to Esparza and Becerra?s cross-complaint and the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.