Plaintiff Newport Harbor Offices & Marina, LLC’s demurrers to the Defendants’ Answers are overruled in part and sustained in part with 15 days leave to amend. The demurrer is overruled as to affirmative defense numbers 1, 18, 22, 23, and 24.  The demurrer is sustained with 15 days leave to amend as to affirmative defense numbers 2 through 12, 14 through 17, and 19-21.


The Court overrules the special demurrer for uncertainty (Code Civ. Proc., § 430.20, subd. (b)). A demurrer for uncertainty is strictly construed, even where a pleading is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading.  (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.)  Here, Plaintiff contends that the Answers are uncertain because Defendants have failed to allege sufficient facts, which is essentially a general demurrer, not a special demurrer.


In general, whatever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”), and thus must be specially pleaded in the answer.  (See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 [failure to plead equitable defenses waived those defenses].)  A defendant raising such new matters must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is required to allege ultimate facts to support a cause of action in a complaint.  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384; 5 Witkin, Cal. Proc. (5th ed. 2008) Pleading, § 1082, p. 515.)  In contrast, a denial needs no support.  (State Farm Mut. Auto Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)  Furthermore, a demurrer based on an affirmative defense cannot be properly sustained where the action might be barred by the affirmative defense, but is not necessarily barred.  (Cross Talk Productions, Inc. v. Jacobsen (1998) 65 Cal.App.4th 631, 635.)

Here, Defendants’ affirmative defense numbers 2 through 12, 14 through 17, and 19-21, require facts to be alleged.  The court sustains the demurrer as to these affirmative defenses with 15 days leave to amend.

The demurrer as to affirmative defense numbers 1, 18, 22, 23, and 24, is overruled.

Defendants shall give notice of the rulings.