Carlos Narbais et al vs Klayton David Martin et al

Case Number

24CV03133

Case Type

Hearing Date / Time

Fri, 01/16/2026 - 10:00

Nature of Proceedings

CMC; Demurrer

Tentative Ruling

For the reasons set forth herein, the demurrer of plaintiffs Carlos Narbais and Silvia Narbais to the answer of defendant Klayton David Martin is sustained, with leave to amend, as to the third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, and twelfth affirmative defenses and is otherwise overruled. If he chooses to do so, Martin may file and serve a first amended answer on or before February 2, 2026.

Background:

On June 4, 2024, plaintiffs Carlos Narbais, by and through his guardian ad litem, Silvia Narbais, and Silvia Narbais filed their original complaint in this action asserting one cause of action for negligence against defendants Klayton David Martin (Martin), and Martin Bros. Landscape Management, Inc. The complaint alleges injuries arising from an automobile accident occurring on January 13, 2024. (Complaint, ¶¶ 13-30.)

On July 23, 2025, Martin filed his answer to the complaint, generally denying the allegations thereof and asserting 13 affirmative defenses.

On September 3, 2025, plaintiffs filed their demurrer to Martin’s answer.

On January 5, 2026, Martin filed opposition to the demurrer in which Martin agrees to withdraw the fourth and tenth affirmative defenses, but argues that the remaining defenses are adequately pleaded.

Analysis:

“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.

            “(c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., § 430.20.)

“Under general rules of civil procedure, an answer must contain ‘[t]he general or specific denial of the material allegations of the complaint controverted by the defendant’ and ‘[a] statement of any new matter constituting a defense.’ (Code Civ. Proc., § 431.30, subd. (b)(1) & (2).) ‘The phrase “new matter” refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as “new matter.”’ [Citation.]” (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812.) “Such ‘new matter’ is also known as ‘an affirmative defense.’ [Citation.] Affirmative defenses must not be pled as ‘terse legal conclusions,’ but ‘rather … as facts “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”’ [Citation.]” (Id. at pp. 812-813.)

“Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action.” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880.) “The allegations of the pleading demurred to must be regarded as true [citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [citations], or the construction placed on an instrument pleaded therein [citation], or facts impossible in law [citation], or allegations contrary to facts of which a court may take judicial knowledge.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

“There are, however, certain important differences between these two kinds of demurrer. An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. [Citations.] This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. [Citations.] Another rule, particularly applicable to the case of a demurrer to the answer, is that each so-called defense must be considered separately without regard to any other defense. [Citations.] Accordingly, a ‘separately stated defense or counterclaim which is sufficient in form and substance when viewed in isolation does not become insufficient when, upon looking at the answer as a whole, that defense or counterclaim appears inconsistent with or repugnant to other parts of the answer.’ [Citations.]” (South Shore Land Co. v. Petersen, supra, 226 Cal.App.2d at pp. 733-734, fn. omitted.)

In addition to asserting that Martin has failed to allege facts sufficient to state a defense, plaintiffs also specially demur to the answer asserting that the allegations are uncertain.

“A demurrer for uncertainty is strictly construed, even where a complaint 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 special demurrer on the ground that an answer is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

Martin’s first affirmative defense is for contributory fault: “If Plaintiffs sustained any damage as alleged in the Complaint, that damage was legally caused and contributed to by Plaintiffs in failing to conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. The contributory negligence and fault of Plaintiffs diminishes any recovery herein.” (Answer, ¶ 2.)

Comparative fault (like the prior contributory negligence) alleges negligence by the plaintiff. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 828–829.) Negligence may be alleged generally. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60.) Here, the allegation characterizes plaintiffs’ own conduct in which the underlying incident is alleged in plaintiffs’ complaint. The defense is sufficiently stated for pleading purposes. The demurrer will be overruled as to the first affirmative defense.

Martin’s second affirmative defense is assumption of the risk: “At all times material Plaintiffs were aware of any inherent danger to their person and property and specifically assumed the risk of this danger by failing to take precautions in the conduct of their person and property. Plaintiffs’ assumption of the risk bars or diminishes any recovery herein.” (Answer, ¶ 3.) As alleged and argued in opposition, this affirmative defense relates to the allocation of damages and is subsumed within the doctrine of comparative fault. (See Shin v. Ahn (2007) 42 Cal.4th 482, 498.) For the same reasons as the first affirmative defense, the demurrer will be overruled to the second affirmative defense.

Martin’s third affirmative defense is for failure to mitigate damages: “If Plaintiffs sustained any damage as alleged in the Complaint, that damage was legally caused and contributed to by Plaintiffs in failing to mitigate damages. Plaintiffs’ failure to mitigate damage diminishes any recovery herein.” (Answer, ¶ 4.)

Mitigation of damages is the doctrine that “[a] person injured by the wrongful act of another is bound, however, to exercise reasonable care and diligence to avoid loss or minimize the resulting damages and cannot recover for losses which might have been prevented by reasonable efforts and expenditures on his part.” (Valencia v. Shell Oil Co. (1944) 23 Cal.2d 840, 844.)

“In Erler v. Five Points Motors, Inc. (1967) 249 Cal.App.2d 560 …, the court, after an exhaustive analysis of the authorities, concluded that only where the defense claims that the plaintiff should have mitigated damages, but failed to do so, need the issue be affirmatively pleaded; but where the matter is one of ‘computation’ – that is, of determining the plaintiff’s actual out-of-pocket loss – ‘[it] can be no surprise nor result in prejudice to a plaintiff’ if the court admits evidence on the issue without an affirmative defense pleading. [Citation.]” (Carlotto, Ltd. v. County of Ventura (1975) 47 Cal.App.3d 931, 937.)

The third affirmative defense appears to assert that plaintiffs affirmatively failed in their duty to mitigate damages. Defendants have not alleged in what manner, even generally, that plaintiffs have failed to mitigate damages. The affirmative defense is thus insufficiently pleaded; the demurrer to the third affirmative defense will be sustained.

As noted above, Martin withdraws his fourth affirmative defense.

Martin’s fifth affirmative defense is contributory negligence of third parties: “If Plaintiffs suffered or sustained any damages as alleged in the Complaint, that damage was legally caused and contributed to by third parties, and the negligence of third parties contributed to the incident alleged in Plaintiffs’ Complaint and this Defendant alleges, therefore, that the damages attributed to this Defendant should be reduced proportionately by the negligence of said third parties.” (Answer, ¶ 6.)

There are no specific facts alleged by which this affirmative defense applies to this cause of action. In opposition, Martin argues that a bicyclist was a source of distraction so as to make this affirmative defense apply. The affirmative defense, however, does not make any such allegation. The demurrer to the fifth affirmative defense will be sustained.

Martin’s sixth affirmative defense is for laches and estoppel: “In bringing any action against this Defendant, Plaintiffs delayed and should now be estopped from now asserting any cause of action against Defendant. The laches or estoppel of Plaintiffs bars any recovery herein.”

“The burden of pleading facts which raises the issue of estoppel lies with the party who would estop the other party [citation], and for estoppel to be available it must be specially pleaded.” (Larue v. Swoap (1975) 51 Cal.App.3d 543, 551.) The pleading of a generic statement is insufficient.

To assert the defense of laches where the application of the defense does not appear on the face of the complaint, a defense muse plead facts constituting laches. (Phoenix Mut. Life Ins. Co. v. Birkelund (1946) 29 Cal.2d 352, 363; Victor Oil Co. v. Drum (1920) 184 Cal. 226, 243.) Again, a generic statement is insufficient. (Indeed, it is unclear that the equitable doctrine of laches would apply to the legal action of negligence asserted by plaintiffs. (See Bagdasarian v. Gragnon (1948) 31 Cal.2d 744, 752.))

The demurrer will be sustained to the sixth affirmative defense.

Martin’s seventh affirmative defense is the application of Proposition 51: “If Plaintiffs sustained any damage as alleged in the Complaint, that damage was legally caused and contributed to by persons, entities or parties other than Defendant in failing to conduct themselves in a manner ordinarily expected or reasonably prudent persons in the conduct of their affairs and business. Defendant shall only be liable for the amount of noneconomic damages allocated to Defendant in direct proportion to Defendant’s percentage of fault pursuant to Civil Code Section 1431.2 and other applicable law.” (Answer, ¶ 8.)

The seventh affirmative defense seeks to limit damages pursuant to statute, which statute incorporates principles of comparative fault and which also limits liability as among defendants. For the same reasons as the first affirmative defense, the defense is sufficient for pleading purposes. The demurrer will be overruled to the seventh affirmative defense.

Martin’s eighth affirmative defense is the application of Proposition 213: “Defendant reserves the right to allege Plaintiffs have not complied with the requirements of Proposition 213, and are therefore entitled to special damages, only.” (Answer, ¶ 9.)

Proposition 213 includes limitations on liability under circumstances involving certain violations of law. (Civ. Code, §§ 3333.3, 3333.4.) The eighth affirmative defense does not assert the application Proposition 213, but merely reserves the right to do so at some future time. Consequently, the eighth affirmative defense does not assert a defense to plaintiffs’ action. The demurrer to the eighth affirmative defense will be sustained.

Martin’s ninth affirmative defense is waiver: “By their conduct, Plaintiffs have waived any right to receive any relief by their Complaint, or any purported cause of action alleged therein.”

“Waiver is an affirmative defense that must be pleaded with specificity and separately stated. In pleading waiver the defendant must set forth the facts upon which he bases his claim of waiver.” (Meyer Koulish Co. v. Cannon (1963) 213 Cal.App.2d 419, 432; accord, Richter v. Adams (1937) 19 Cal.App.2d 572, 576.) Martin has not alleged facts supporting this affirmative defense. The demurrer to the ninth affirmative defense will be sustained.

As noted above, Martin withdraws his tenth affirmative defense.

Martin’s eleventh affirmative defense is good faith settlement: “Plaintiffs’ cause of action, and each of them, are barred in whole or in part, by the defense of good faith settlement.” A release must be specially pleaded. (Hildebrand v. Stonecrest Corp. (1959) 174 Cal.App.2d 158, 165.) Martin has not attached any settlement or release or alleged facts regarding such a settlement or release.

Martin’s twelfth affirmative defense is promissory estoppel: “Defendant would allege a prior good faith settlement was reached between Plaintiffs and Defendant. Plaintiffs’ conduct constituted a promise to compromise the present action, a promise upon which Defendant has relied and acted upon to her [sic] detriment, as the case may be.” The twelfth affirmative defense uses the conditional “would allege” rather than affirmatively alleging a settlement.

In opposition, Martin argues that these defenses have been asserted to protect Martin’s interest in the event that discovery reveals facts supporting one or both of these defenses. In the present, however, these are insufficient to plead affirmative defenses. The demurrer to the eleventh and twelfth affirmative defenses will be sustained.

Martin’s thirteenth affirmative defense is for wrongful damages: “Pursuant to California Civil Code, Section 3291, Plaintiffs request for pre-judgment interest is unlawful, improper and wrongfully brought.”

“A plea controverting the original cause of action and tendering no new issue is a mere traverse and cannot be properly described as a plea setting up new matter.” (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 543.)

By its terms, this defense merely provides a legal characterization of plaintiffs’ own allegations and does not constitute, as such, an affirmative defense because the issues raised by Martin do not require Martin to prove any facts different from those addressed in the complaint.

A party may by answer allege facts as new matter or in denial of contrary allegations of the complaint. In the context of an allegation of an affirmative defense, these allegations, if not constituting new matter, may provide additional, alternative, or more specific denials than in the body of the answer. (See Edger v. Foster (1941) 48 Cal.App.2d 580, 583 [“[T]he fact that defendant in the instant case denied certain material allegations of the complaint in his answer and subsequently in an affirmative defense alleged the same material allegations of the complaint as true, did not constitute an admission of the truth of the allegations in the complaint. He was merely pleading inconsistent defenses.”]; Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 309 [a party may allege alternative, inconsistent defenses].) For that reason, allegations in an answer are not improper merely because those allegations do not by themselves constitute affirmative defenses. Construing the thirteenth affirmative defense as alternative, more specific denials to the allegations of the complaint, the demurrer to the thirteenth affirmative defense will be overruled.

This is the first demurrer to this pleading. The court will grant leave to amend. Whether or not Martin chooses to amend none, some, or all of the affirmative defenses for which the demurrer is being sustained, this ruling is without prejudice to the later filing of a motion for leave to file a further amended answer to assert an affected affirmative defense based upon additional facts.