1The topic of this issue of the newsletter is filing a demurrer to an answer.

Carefully reviewing any answer received to determine if the affirmative defenses are sufficient is critical and should be done immediately upon receipt of the answer. A plaintiff can demur to defendant's answer, but has only 10 days following service of the answer within which to do so, unless extended by stipulation or court order. See Code of Civil Procedure § 430.40(b). There are only three grounds for a demurrer to an answer under Code of Civil Procedure § 430.20: - Failure to state facts sufficient to constitute a defense; - Uncertainty; - Failure to state whether contract alleged in the answer is written or oral. A demurrer for failure to state a cause of action (or defense) is commonly referred to as a "general demurrer." In addition, a demurrer to the complaint for lack of subject matter jurisdiction is treated as a "general demurrer," because the objection is never waived. All other grounds for a demurrer are "special" demurrers, and are waived unless timely raised. Only general demurrers are allowed in limited civil cases. The grounds for a special demurrer must be raised, if at all, as affirmative defenses in the answer. See Code of Civil Procedure § 92[c]. A demurrer can be an excellent tool for eliminating "boilerplate" affirmative defenses that often appear in answers such as "waiver," "estoppel," "unclean hands," “fraud”, etc.. A demurrer may be on the ground of failure to plead sufficient facts to constitute a defense. In the author’s experience as a freelance paralegal in reviewing hundreds of answers since 1995, many, if not most, answers contain nothing but “boilerplate” affirmative defenses. A California Court of Appeal has ruled that the affirmative defenses in an answer to a complaint must be alleged in the same fashion, and with the same specificity as, a cause of action in a complaint. In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint. Because conclusory allegations are not admitted by demurrer, and because conclusory allegations have no pleading value, conclusory and “boilerplate” affirmative defenses are insufficient. (Answer alleging “fraud in the inducement” and “failure of consideration” demurrable as mere conclusion.) An answer's "failure to state facts sufficient to constitute a defense" may be raised at any time (i.e., no waiver). But the other grounds for challenging the sufficiency of the answer must be raised by demurrer, or are automatically waived. See Code of Civil Procedure § 430.80(b). In pleading the statute of limitations, "it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section (giving the

number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure." Code of Civil Procedure § 458 (emphasis added). Any affirmative defense pleading the statute of limitations that does not list both the applicable statute and subdivision fails to state facts sufficient to constitute a defense in most cases. A pleading that fails to specify both the applicable statute and subdivision "raises no issue and presents no defense." Davenport v. Stratton (1944) 24 Cal 2d 232, 246, 247. Plea that action barred by Code of Civil Procedure § 339 not sufficient because that statute contains several subdivisions; Brown v. World Church (1969) 272 Cal.App. 2d 684, 691. Failure to specify a statute's subdivision has been overlooked, however, where it is the only subdivision "that could by any possibility be applicable to this case." Churchill v. Woodworth (1906) 148 Cal 669, 676, (dealing with Code of Civil Procedure § 339); see also Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc.(2004) 115 Cal.App. 4th 1145, 1164,1165, (same.) The various affirmative defenses must be separately stated and refer to the causes of action to which they relate. The various affirmative defenses must be separately stated; and must refer to the causes of action to which they relate "in a manner by which they may be intelligently distinguished." Code of Civil Procedure § 431.30(g); see Hata v. Los Angeles County Harbor/UCLA Med. Ctr. (1995) 31 Cal.App. 4th 1791, 1805. Failure to separately state the various affirmative defenses and refer to the causes of action to which they relate would be grounds for a special demurrer on the grounds of uncertainty. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved.

DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.