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(Timekeeping, Billing, Trust Accounting,
Calendaring, etc.) xxxxxxxxxxxxx (SBN xxxxxxxx) xxxxxx xxxxxxxxxxx xxxxxxxxxxxx
Tel: xxxxxxxxxx
Fax: xxxxxxxxxxxx
Attorney for Plaintiffs
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SUPERIOR COURT OF CALIFORNIA
SANTA CLARA COUNTY SUPERIOR COURT
12 CIVIL DIVISION, DOWNTOWN FACILITY
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14 xxxxxxxxxxxxx,
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Plaintiffs, xxxxxxxxxxxxx
Defendant.
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Case No.: xxxxxxxxxxxxx
NOTICE OF DEMURRER AND
DEMURRER TO ANSWER TO VERIFIED
COMPLAINT FILED BY DEFENDANT;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
DATE: xxxxxxxxx, 2011
TIME: 9 AM
DEPT.: 9
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22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE THAT on xxxxxxxxx, 2011, at 9:00 am, or as soon after that
24 as the matter can be heard, in Dept. 9 of the above-entitled Court located at 191, N First St., San
25 Jose, CA, Plaintiff xxxxxxxxxxxxxxx will move the Court for an order sustaining demurrer to
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

1 the Answer to Plaintiffs’ Verified Complaint Filed by Defendant xxxxxxxxx pursuant to Code of
2 Civil Procedure § 435, 436, 430.20, 430.40(b) and 430.80.
3 This demurrer is based upon this notice of motion, the attached demurrer, the
4 memorandum of points and authorities, and upon such oral and documentary evidence as may be
5 presented by Plaintiffs upon the hearing of the motion.
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7 DATED: xxxxxxxxxxx
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________________________, xxxxxxxxxxxx
Attorney for Plaintiff
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Memorandum of Points and Authorities
I.
STATEMENT OF FACTS
On February 22, 2011, Plaintiffs filed a complaint for damages against Defendant. This
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Complaint is based on a motor vehicle accident that occurred on April 16, 2010 in which
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Defendant hit from behind the motor vehicle occupied by Plaintiffs. At the time the collision
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18 occurred, Plaintiffs were waiting for a traffic signal to turn green and their motor vehicle was in the stationary state. Defendant failed to exercise due care by failing to observe traffic signal and
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20 failing to operate his motor vehicle. This failure to exercise due care and operating his vehicle in
21 negligent manner resulted in damages to Plaintiffs. The damages include both personal injuries
22 and property damages. Upon failure of Defendant to file a timely Answer and upon Plaintiffs
23 request, a default was entered against Defendant. Defendant filed a motion to set aside the
24 default along with the Answer to Plaintiffs’ Complaint. On August 2, 2011, the Court set aside
25 the default and ordered entry of Defendant’s Answer. This demurrer is filed within 10 days of
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

1 the entry of Defendant’s Answer pursuant to various code sections, as stated above, of California
Code of Civil Procedure.
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II.
DEMURRER IS PROPER IN THIS CASE BECAUSE DEFENDANT FAILED
5 TO ALLEGE AFFIRMATIVE DEFENSES WITH SPECIFICITY.
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In FPI Development, Inc vs. A1 Nakashima , (1991) 231 Cal.App.3d 367, 384, the court
7 held that the affirmative defenses pled in an answer to a complaint must be pled in the same
8 fashion, and with the same specificity, as a cause of action in a complaint. Because conclusory
9 allegations are not admitted by Answer, and because conclusory allegations have no pleading
10 value, conclusory and “boilerplate” affirmative defenses are insufficient.
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Defendant’s Answer contains the following affirmative defenses. All the following
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Affirmative Defenses are “boilerplate” defenses. As discussed below, these defenses are not
13 pled with specificity. Therefore, these affirmative defenses should be stricken from Defendant’s
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Answer.
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First Affirmative Defense
In the Answer, Defendant states “The Complaint, and each and every cause of action
18 contained therein, fails to state facts sufficient to constitute a cause of action against this
19 answering Defendant, or at all.”
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This is a bare legal conclusion and does not in any manner provide facts necessary to
21 establish an affirmative defense. See Cal. Civ. Proc. § 431.30(b). Said statement does not state
22 facts and analysis as to why the Complaint fails to state facts sufficient to constitute a cause of
23 action against Defendant. As a result, Defendant’s First Affirmative Defense should be stricken
24 from the Answer.
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Second Affirmative Defense
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

In the Answer, Defendant states “Defendant is informed and believes and upon such
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2 information and belief alleges that at all times mentioned herein, if any Defendant was negligent,
3 the conduct of all other parties, both known and unknown, should be compared to determine the
4 degree of fault, if any, between the parties.”
5 This is merely a plain statement and not even a defense. Defendant simply states that
6 negligence of all parties involved must be compared. However, Defendant fails to allege that
7 other parties were involved and they were also at fault. Further, no facts have been provided to
8 support the allegation that other parties were also at fault. As a result, Defendant’s Second
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Affirmative Defense should be stricken from the Answer.
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Third Affirmative Defense
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In the Answer, Defendant states “Defendant is informed and believes and upon such
12 information and belief allege that at all times mentioned herein, Plaintiffs were negligent,
13 careless and reckless and unlawfully conducted themselves so as to substantially contribute to
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Plaintiffs' alleged injuries and damage compared to the conduct of all other parties, all of which
16 said negligence either bars in whole or part damages sought herein.”
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Again, this is merely a conclusory statement because this defense does not state facts to
18 support the allegation that Plaintiff was negligent. The Complaint properly alleges that
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Plaintiffs’ vehicle was stationary at a traffic signal while Plaintiffs wait for the signal to turn
20 green. Defendant has failed to state any facts to support that Plaintiffs’ above stated acts were
21 negligent. Further, in response to Plaintiffs’ Complaint, paragraph 12 “ At all times herein
22 mentioned, Plaintiff xxxxxxxxxxwas acting in a careful and prudent manner and did not assume
23 the risks of his injuries and was not contributorily negligent
,” Defendant has stated that
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Defendant lacks sufficient information to admit or deny. Hence, it is clear that Defendant does
25 not have sufficient facts in his possession to support his allegations that Plaintiffs were negligent
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

1 in any manner. Proper pleading of the defense require a specification of the ultimate facts
2 identifying how the plaintiff was negligent and asserting that the plaintiff particular negligence
3 caused his or her own injury. See McMillan v. Western Pac. R.R.
(1960) 54 Cal. 2d 841. A bare
4 allegation that “the plaintiff is negligent” would usually be held insufficient. See Hoffman v.
5 Southern Pac. Co.
(1927) 84 Cal. App. 337. In this instant matter Defendant’s Third Affirmative
6 Defense is nothing more than an assertion that Plaintiff is negligent. Moreover, coupled with the
7 realization that the Third Affirmative Defense fails to identify which cause of action to which it
8 applies, the defense is completely devoid of any essential facts required to properly assert the
9 same. As a result, Defendant’s Third Affirmative Defense operates as nothing more than an
10 argumentative denial. See Rancho Santa Margarita v. Vail (1938) 11 C 2d 501. As a result,
11 Defendant’s Third Affirmative Defense should be stricken.
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Fourth Affirmative Defense
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In the Answer, Defendant states “Defendant is informed and believes and upon such
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15 information and belief allege that at the time and place of the incident alleged in Plaintiffs'
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Complaint, the Plaintiffs knew of the danger and risk incident to the undertaking, but despite
17 such knowledge, Plaintiffs freely an voluntarily assumed and exposed themselves to all risk of
18 harm and the consequential injuries an damages, if any, therefrom.”
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This is confusing. Is this Defendant’s affirmative defense that because there are bad
20 drivers, such as Defendant, driving on public roads, Plaintiffs should not have used public roads?
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Further, this affirmative defense also merely state a conclusonary statement without providing
22 any facts to support the allegation that Plaintiffs knew that Defendant was a negligent driver and
23 was following Plaintiffs vehicle. Defendant has simply stated a bare legal conclusion and does
24 not in any manner provide facts necessary to establish an affirmative defense. See Cal. Civ.
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Proc. § 431.30(b). In this instant matter Defendant’s Fourth Affirmative Defense is nothing
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

1 more than an assertion that Plaintiffs are negligent. Moreover, coupled with the realization that the Fourth Affirmative Defense fails to identify which cause of action to which it applies, the
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3 defense is completely devoid of any essential facts required to properly assert the same. As a
4 result, Defendant’s Fourth Affirmative Defense should be stricken.
5 Fifth Affirmative Defense
6 In the Answer, Defendant states “Defendant is informed and believes and thereon alleges
7 that in the event Plaintiffs should establish any liability on the part of this answering Defendant,
8 which liability is expressly denied, this answering Defendant may not be obligated to pay sums
9 representing a proportion or percentage of fault not his/her own, but that of Plaintiffs, other
10 parties to this action and third persons not parties to this action. Defendant is entitled to an
11 adjudication and determination of the respective proportions or percentages of fault, if any, on
12 this answering Defendant's part and on the part of the Plaintiffs and other parties to this action
13 and third persons not parties to this action pursuant to the Doctrines of Comparative Negligence
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15 and the Fair Responsibility Act of 1986 codified in Civil Code §1431-1431.5.”
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Once again, this is not even a defense but merely a prayer. An answer should contain
17 whatever denials or affirmative defenses are necessary to controvert the material allegations of
18 the complaint. Its function is to put the case “at issue” as to all important matters alleged in the
19 complaint that defendant does not want to admit. An answer cannot be used to claim affirmative
20 relief; a cross-complaint must be filed. See Code of Civil Procedure
§ 431.30. This statement
21 appears to have been simply copied from some other complaint, just like other so called
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“affirmative defenses.” This is just a general denial of liabilities without providing any
23 supporting facts as to 1) there were other third persons involved who might be liable for
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Defendant’s negligent actions, 2) Defendant was not at fault. As a result, Defendant’s Fifth
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

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Affirmative Defense operates as nothing more than an argumentative denial. See Rancho Santa
Margarita v. Vail (1938) 11 C 2d 501.
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Sixth Affirmative Defense
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In the Answer, Defendant states, “Defendant is informed and believes and upon such
5 information and belief allege failing to wear an available seatbelt and/or shoulder harness, all of
6 which substantially contribute to Plaintiffs' alleged injuries and damages, so as to bar in whole or
7 in part the damages sought herein.”
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Defendant’s CMC statement dated July 6, 2011, Defendant’s counsel states “No airbags
9 deployed, and both plaintiffs claim to have been wearing their seatbelts.” If Defendant was in
10 possession of facts to indicate that Plaintiffs were not wearing seatbelts, Defendant could not
11 have made the above statement. It appears that Defendant is attempting to play both side, first
12 by claiming that Plaintiffs were wearing seatbelts, hence Plaintiffs could not sustain injuries and
13 second by raising an affirmative defense by claiming that Plaintiffs were not wearing seatbelts to
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15 get around Defendant’s liability.
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CCP 128.7 requires allegations and other factual contentions have evidentiary support.
17 Here, Defendant was “sleep at the wheel” and failed to notice that the traffic signal ahead of his
18 was red and traffic was stopped before him. But, he claims he could see that the persons in the
19 car that he was just about to hit from behind were not wearing seatbelts. Either this so called
20 “affirmative defense” is inadvertently copied from an Answer template or Defendant is
21 committing perjury. Further, Plaintiffs were engaged in negotiations with Defendant’s insurer
22 for months and this alleged fact were never brought forward by Defendant.
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Besides, even if this fact is taken at its face value, this is not an affirmative defense
24 because not wearing seatbelts was not a proximate cause of the accident. Further, if Defendant
25 actually saw that Plaintiffs were not wearing seatbelts, then Defendant was expected to be even
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

1 more careful to avoid hitting Plaintiffs’ vehicle. As a result, Defendant’s Sixth Affirmative
Defense should be stricken.
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Seventh Affirmative Defense
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In the Answer, Defendant states, “Defendant is informed and believes and thereon alleges
5 that sums have already been paid to Plaintiffs on behalf of the Defendant for medical specials,
6 such that Defendant is entitled to a credit and/or offset in the amount so paid as to any judgment
7 taken against them in this matter.”
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First, this is a prayer and not an affirmative defense. An answer should contain whatever
9 denials or affirmative defenses are necessary to controvert the material allegations of the
10 complaint. Its function is to put the case “at issue” as to all important matters alleged in the
11 complaint that defendant does not want to admit. An answer cannot be used to claim affirmative
12 relief; a cross-complaint must be filed. See Code of Civil Procedure § 431.30.
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Second, this conclusory statement lacks facts to support why the moneys already paid
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15 should be returned to Defendant. Surprisingly, Defendant has claimed lack of sufficient
16 information on this matter in answering Plaintiffs’ Complaint. Hence, it is evident that
17 Defendant has no facts to support this so called “affirmative defense.” As a result, Defendant’s
18 Seventh Affirmative Defense should be stricken.
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Eighth Affirmative Defense
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In the Answer, Defendant states “Defendant is informed and believes and thereon alleges
21 that sums have already been paid to Plaintiffs on behalf of the Defendant for damages to
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Plaintiffs' vehicle, and for the reimbursement of their auto rental and loss of use, such that
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Defendant is entitled to an offset and/or credit in the amount so paid as to any judgment taken
24 against him in this matter.”
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

First, this is a prayer and not an affirmative defense. An answer should contain whatever
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2 denials or affirmative defenses are necessary to controvert the material allegations of the
3 complaint. Its function is to put the case “at issue” as to all important matters alleged in the
4 complaint that defendant does not want to admit. An answer cannot be used to claim affirmative
5 relief; a cross-complaint must be filed. See Code of Civil Procedure
§ 431.30.
6 Second, this conclusory statement lacks facts to support why the moneys already paid
7 should be returned to Defendant. Surprisingly, Defendant has claimed lack of sufficient
8 information on this matter in answering Plaintiffs’ Complaint. Hence, it is evident that
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Defendant has no facts to support this so called “affirmative defense.” As a result, Defendant’s
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Eighth Affirmative Defense should be stricken.
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Ninth Affirmative Defense
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In the Answer, Defendant states “Defendant is informed and believes and thereon alleges
13 that Plaintiffs did not carry proper insurance coverage at the time of the incident per California
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Proposition 213, and is thus precluded from seeking damages.”
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Defendant has no basis of alleging that Plaintiffs had no insurance coverage at the time of
17 the accident. In fact, Defendant is committing perjury by affirmatively alleging this defense.
18 Defendant has not alleged facts to show the source of this “mis-” information. This defense, just
19 like all the above, appears to be a copy and paste from another complaint. Further, under CCP
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128.7, an attorney has a duty to make reasonable investigation prior to signing a court document.
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The counsel for Defendant has failed to make reasonable investigation prior to advancing
22 frivolous allegations based on lies.
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Besides, this is not an affirmative defense because this does not negate Defendant’s acts
24 and one of the plaintiffs was a passenger, who did not require to carry any insurance. As a result,
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Defendant’s Ninth Affirmative Defense should be stricken.
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

Tenth Affirmative Defense
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“These answering Defendants are informed and believe and thereon allege that the
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Plaintiff’s Complaint, and each cause of action therein, is stated in conclusory terms, and
4 therefore said Defendants cannot fully anticipate all affirmative defenses which may be
5 applicable to this action. Accordingly, these answering Defendants reserve the right to add
6 additional affirmative defenses.”
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Once again a classic “boilerplate” affirmative defense. In this case, the counsel for
8 defense even forgot to change the word “Defendants” to “Defendant.” Further, just like all
9 above, this defense also lacks facts to support allegations that Plaintiffs’ Complaint is written in
10 conclusory terms. If this would have been the case, Defendant should have filed a demurrer or
11 motion to strike to Plaintiffs’ Complaint. Asserting affirmative defenses is not an open ended
12 scheme. A defendant gets sufficient time to investigate before filing an answer. Any affirmative
13 defense not asserted in the answer is waived. The defendant cannot extend the time period of
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15 asserting more affirmative defenses simply by inserting an open ended affirmative defense, like
16 this one. Therefore, Defendant’s Tenth Affirmative Defense should be stricken.
17 III. CONCLUSION
18 For the above reasons, Defendant’s First to Tenth Affirmative Defenses should be
19 stricken from Defendant’s Answer .
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DATED: xxxxxxxxxx
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________________________, xxxxxxxxxx
Attorney for Plaintiff
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

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PROOOF OF SERVICE
1. I am over the age of 18 and not a party of this cause. I am a resident of or employed in the county where the mailing occurred. My residence or business address is xxxxxxxxxxxxxxxxx.
2. I served the Notice of Demurrer and Demurrer to Defendant’s Answer by enclosing a true copy in a sealed envelope addressed to each person whose name and address is shown below and depositing the envelope in the US mail with the postage fully prepaid.
Date of Mailing: xxxxxx Place of Mailing: xxxxx
3. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: xxxxxxxxx xxxxxxxxxx
____________________
(PRINT NAME)
____________________________
Signature
Name and Address of each Person to whom Notice was Mailed
4. Name of the person served: xxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxx
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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx

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Notice of Demurrer and Demurrer to Defendant’s Answer
Case No. xxxxxxxxxxxxxxx