1 CYNTHIA A.
BROWNING SBN 221253
1037 Fox Hound Road
2 Vacaville, CA 95687
Tel: (510) 326-2367
3 Fax: (510 263-6050
Email: 4cbrowning@[Link]
4
5 Attorney for Plaintiff
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF ALAMEDA – UNLIMITED JURISDICTION
9
ANTHONY D. SAMPSON ) Case No. RG10512849
10 )
Plaintiff, ) NOTICE OF DEMURRER OF PLAINTIFF
11 ) ANTHONY D. SAMPSON TO THE
) ANSWERS OF DEFENDANTS HOME
vs.
12 ) DEPOT U.S.A., INC., AND THOMAS GOFF
)
13 HOME DEPOT U.S.A., INC., a Delaware ) Date: August 19, 2010
Corporation, and Thomas Goff, an ) Time: 8:30 a.m.
14 individual, and DOES 1-20. ) Location: Department 21
)
15 Defendants ) Reservation No. R-1085898
)
16 )
17
18 TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:
19 PLEASE TAKE NOTICE that on August 19th at 8:30 a.m. or as soon thereafter as
20 the matter may be heard in Department 21 of the above-entitled Court, located at 1225
21 Fallon Street, Oakland, California, Plaintiff ANTHONY D. SAMPSON will, and hereby
22 does, demur to the Answers filed by Defendants HOME DEPOT U.S.A., INC., and
23 THOMAS GOFF.
24 DEMURRER TO ANSWER
25 1. The First Affirmative Defense does not state facts sufficient to constitute a
26 defense. (Code of Civil Procedure § 430.20(a).)
27 2. The Second Affirmative Defense does not state facts sufficient to constitute a
28 defense. (Code of Civil Procedure § 430.20(a).)
1 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 3. The Third Affirmative Defense does not state facts sufficient to constitute a
2 defense. (Code of Civil Procedure § 430.20(a).)
3 4. The Fourth Affirmative Defense does not state facts sufficient to constitute a
4 defense. (Code of Civil Procedure § 430.20(a).)
5 5. The Fifth Affirmative Defense does not state facts sufficient to constitute a
6 defense. (Code of Civil Procedure § 430.20(a).)
7 6. The Sixth Affirmative Defense does not state facts sufficient to constitute a
8 defense. (Code of Civil Procedure § 430.20(a).)
9 7. The Seventh Affirmative Defense does not state facts sufficient to constitute a
10 defense. (Code of Civil Procedure § 430.20(a).)
11 8. The Eighth Affirmative Defense does not state facts sufficient to constitute a
12 defense. (Code of Civil Procedure § 430.20(a).)
13 9. The Ninth Affirmative Defense does not state facts sufficient to constitute a
14 defense. (Code of Civil Procedure § 430.20(a).)
15 10. The Tenth Affirmative Defense does not state facts sufficient to constitute a
16 defense. (Code of Civil Procedure § 430.20(a).)
17 11. The Eleventh Affirmative Defense does not state facts sufficient to constitute a
18 defense. (Code of Civil Procedure § 430.20(a).)
19 12. The Twelfth Affirmative Defense does not state facts sufficient to constitute a
20 defense. (Code of Civil Procedure § 430.20(a).)
21 13. The Thirteenth Affirmative Defense does not state facts sufficient to constitute
22 a defense. (Code of Civil Procedure § 430.20(a).)
23 14. The Fourteenth Affirmative Defense does not state facts sufficient to constitute
24 a defense. (Code of Civil Procedure § 430.20(a).)
25 15. The Fifteenth Affirmative Defense does not state facts sufficient to constitute a
26 defense. (Code of Civil Procedure § 430.20(a).)
27 16. The Sixteenth Affirmative Defense does not state facts sufficient to constitute a
28 defense. (Code of Civil Procedure § 430.20(a).)
2 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 17. The Seventeenth Affirmative Defense does not state facts sufficient to
2 constitute a defense. (Code of Civil Procedure § 430.20(a).)
3 18. The Eighteenth Affirmative Defense does not state facts sufficient to constitute
4 a defense. (Code of Civil Procedure § 430.20(a).)
5 19. The Nineteenth Affirmative Defense does not state facts sufficient to constitute
6 a defense. (Code of Civil Procedure § 430.20(a).)
7 20. The Twentieth Affirmative Defense does not state facts sufficient to constitute
8 a defense. (Code of Civil Procedure § 430.20(a).)
9 21. The Twenty-First Affirmative Defense does not state facts sufficient to
10 constitute a defense. (Code of Civil Procedure § 430.20(a).)
11 22. The Twenty-Second Affirmative Defense does not state facts sufficient to
12 constitute a defense. (Code of Civil Procedure § 430.20(a).)
13 23. The Twenty-Third Affirmative Defense does not state facts sufficient to
14 constitute a defense. (Code of Civil Procedure § 430.20(a).)
15 24. The Twenty-Fourth Affirmative Defense does not state facts sufficient to
16 constitute a defense. (Code of Civil Procedure § 430.20(a).)
17 25. The Twenty-Fifth Affirmative Defense does not state facts sufficient to
18 constitute a defense. (Code of Civil Procedure § 430.20(a).)
19 26. The Twenty-Sixth Affirmative Defense does not state facts sufficient to
20 constitute a defense. (Code of Civil Procedure § 430.20(a).)
21 27. The Twenty-Seventh Affirmative Defense does not state facts sufficient to
22 constitute a defense. (Code of Civil Procedure § 430.20(a).)
23 28. The Twenty-Eighth Affirmative Defense does not state facts sufficient to
24 constitute a defense. (Code of Civil Procedure § 430.20(a).)
25 29. The Twenty-Ninth Affirmative Defense does not state facts sufficient to
26 constitute a defense. (Code of Civil Procedure § 430.20(a).)
27 30. The Thirtieth Affirmative Defense does not state facts sufficient to constitute a
28 defense. (Code of Civil Procedure § 430.20(a).)
3 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 31. The Thirty-First Affirmative Defense does not state facts sufficient to constitute
2 a defense. (Code of Civil Procedure § 430.20(a).)
3 32. The Thirty-Second Affirmative Defense does not state facts sufficient to
4 constitute a defense. (Code of Civil Procedure § 430.20(a).)
5 33. The Thirty-Third Affirmative Defense does not state facts sufficient to
6 constitute a defense. (Code of Civil Procedure § 430.20(a).)
7 34. The Thirty-Fourth Affirmative Defense does not state facts sufficient to
8 constitute a defense. (Code of Civil Procedure § 430.20(a).)
9 35. The Thirty-Fifth Affirmative Defense does not state facts sufficient to constitute
10 a defense. (Code of Civil Procedure § 430.20(a).)
11 36. The Thirty-Sixth Affirmative Defense does not state facts sufficient to
12 constitute a defense. (Code of Civil Procedure § 430.20(a).)
13 37. The Thirty-Seventh Affirmative Defense does not state facts sufficient to
14 constitute a defense. (Code of Civil Procedure § 430.20(a).)
15 38. The Thirty-Eighth Affirmative Defense does not state facts sufficient to
16 constitute a defense. (Code of Civil Procedure § 430.20(a).)
17 39. The Thirty-Ninth Affirmative Defense does not state facts sufficient to
18 constitute a defense. (Code of Civil Procedure § 430.20(a).)
19 40. The Fortieth Affirmative Defense does not state facts sufficient to constitute a
20 defense. (Code of Civil Procedure § 430.20(a).
21
22 Respectfully submitted,
23 DATED: July 15, 2010 LAW OFFICES OF CYNTHIA A. BROWNING
24 Cynthia A. Browning
25
26
27 ____________________________________
28 Attorney for Plaintiff
4 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 MEMORANDM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants’ Answer to the First Amended Complaint fails to state facts sufficient
4 to constitute and support a claim for any affirmative defense; instead it appears to be a
5 laundry list of boilerplate affirmative defenses unsupported by any facts. An affirmative
6 defense, like a cause of action in a complaint, may not be stated in such conclusory
7 form. It must instead include all facts that support the allegations therein. Defendants’
8 Answer fails to state any such facts to support said affirmative defenses. The Court
9 should therefore sustain the Demurrer of Plaintiff ANTHONY SAMPSON on the grounds
10 that Defendants’ affirmative defenses fail to state facts sufficient to constitute a defense
11 (Code of Civil Procedure §430.20(a)).
12 II. DEFENDANTS FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE AN
13 AFFIRMATIVE DEFENSE
14 “A statement of any new matter constitutes a defense.” Code of Civil Procedure §
15 431.30(b)(2). The “new matter” is different from a simple denial of the allegations in the
16 complaint. Rather, it is “some independent reason why plaintiff should be barred from
17 recovery, even if everything alleged in the complaint was true.” R. Weil & I. Brown,
18 California Practice Guide: Civil Procedure Before Trial, § 6:430 (Rutter Group).
19 An affirmative defense cannot be pled in the form of “terse legal conclusions.”
20 FPI Development, Inc. v. Nakashima (1991) 231 [Link]. 3d 367, 384. In order to state an
21 affirmative defense, the answer must set forth facts “as carefully and with as much detail
22 of the facts which constitute the cause of action and are alleged in the complaint.” Id.;
23 see also Weil & Brown, supra, at § 6:459.
24 III. THE FIRST AFFIRMATIVE DEFENSE (INSUFFICIENT FACTS) STATES NO
25 FACTS TO SUPPORT AN AFFIRMATIVE DEFENSE
26 The First Affirmative Defense offers neither facts nor theories to support its
27 contention. It states as follows: “The Complaint and each cause of action purportedly
28 contained therein fails to state facts sufficient to constitute a cause of action upon which
5 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 relief may be granted.” This Defense is a bald legal conclusion and offers no facts or
2 pertinent legal doctrines that apply to any of the Plaintiff’s causes of action. If
3 Defendants were dissatisfied with the factual allegations of the Complaint, they should
4 have demurred or moved to strike. Hence, the First Affirmative Defense should be
5 stricken.
6 IV. THE SECOND, THIRD, ELEVENTH, TWELFTH, EIGHTEENTH AND
7 TWENTY-SECOND (EMPLOYMENT DEFENSES) AFFIRMATIVE DEFENSES STATE
8 NO FACTS TO SUPPORT AN AFFIRMATIVE DEFENSE
9 In Defendants’ Second (Legitimate Business Reasons) Third (Good Faith Belief)
10 and Twelfth (After-Acquired Evidence Doctrine) Affirmative Defenses, Defendants
11 allege that they acted with legitimate non-discriminatory business reasons at all times,
12 that any decisions made with respect to Plaintiff were reasonably based on the facts as
13 Defendants understood them, and that Plaintiff’s claims are limited or barred because of
14 after-acquired evidence of Plaintiff’s wrongdoing. Defendants fail to state any facts to
15 support these arguments. Defendants fail to state a single instance of exercising
16 legitimate business reasons, what facts they reasonably relied on for their decision
17 making, or what facts they allege constitute wrongdoing by Plaintiff. Because of the
18 failure to put forward any facts to support these defenses, they must be stricken.
19 Home Depot and Goff’s Eleventh Affirmative Defense alleges that the California
20 Workers’ Compensation Act preempts Plaintiff’s claim for intentional infliction of
21 emotional distress. Here again, Defendants fail to note any facts that support its
22 inclusion of this affirmative defense. This Defense must be stricken as well.
23 Defendants’ Eighteenth (Decision Based on Understood Facts After
24 Investigation) and Twenty-second (Plaintiff Did Not Substantially Comply with
25 Employer’s Directive) Affirmative Defenses respectively neither state any facts
26 regarding any decisions by Defendant and the reasonable good faith investigations that
27 preceded them, nor any directive with which Plaintiff failed to substantially comply and
28 accordingly must be stricken.
6 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 V. THE FOURTH AND TENTH (PLAINTTIF’S ACTIONS) AFFIRMATIVE
2 DEFENSES STATES NO FACTS TO SUPPORT AN AFFIRMATIVE DEFENSE
3 Defendant’s’ Fourth (Bad Faith and Frivolous Action) Affirmative Defense also
4 offers no facts or theories to support its contentions. Defendants allege that the
5 “Complaint and each alleged cause of action contained therein, was brought by Plaintiff
6 in bad faith and is frivolous and by reason of the conduct stated herein, Defendant is
7 entitled to, and will seek, reasonable expenses, including attorneys’ fees, incurred in
8 defending this action pursuant to California Civil Procedure Code Section 128.6.” In
9 order to establish this defense for each cause of action, Defendants must assert that
10 each and every cause of action was either totally and completely without merit or
11 brought for the sole purpose of harassing an opposing party. Cal. Civ. Proc. § 128.6.
12 Defendants fail to state any facts that show bad faith by the Plaintiff, or how any claim in
13 the First Amended Complaint was either meritless or brought to harass Defendants.
14 Defendants also failed to state facts to show any conduct by Plaintiff that would entitle
15 them to reasonable expenses and attorneys’ fees. Accordingly, the Fourth Affirmative
16 Defense must be stricken.
17 In its Tenth Affirmative Defense (Causation), Defendants allege that Plaintiff’s
18 causes of action are barred because Plaintiff’s damages or injuries, in whole or in part,
19 were caused by Plaintiff’s own actions. Yet, Defendants again fail to state any facts in
20 support of this defense. Their Answer doesn’t specify what actions by Plaintiff caused
21 either his damages or his injuries, or how those actions bar his causes of action either in
22 whole or in part. Thus, the Tenth Affirmative Defense must be stricken.
23 VI. THE FIFTH, FIFTEENTH, SIXTEENTH, TWENTY-THIRD, TWENTY-
24 FOURTH, TWENTY-FIFTH, TWENTY-SIXTH, AND TWENTY SEVENTH
25 (DISCRIMINATION DEFENSES) AFFIRMATIVE DEFENSES STATE NO FACTS TO
26 SUPPORT AN AFFIRMATIVE DEFENSE
27 Defendants’ Fifth Affirmative Defense alleges that the Plaintiff’s action is barred
28 because Plaintiff failed to exhaust administrative remedies before the Department of
7 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 Fair Employment and Housing (DFEH). Not only do Defendants fail to note any facts
2 that support its inclusion of this affirmative defense, but the Defense completely ignores
3 specific facts plead in the Complaint to do so. Specifically, Plaintiff stated in his First
4 Amended Complaint that he filed a complaint with the DFEH, and proved it by serving
5 his right to sue notices for Defendants with the original Summons and Complaint. This
6 defense must be stricken.
7 Defendants’ Fifteenth Affirmative Defense alleges that Plaintiff would have been
8 treated no differently in the absence of a discriminatory motive but states no facts to
9 support this conclusion. Defendant fails to identify any of the treatment plead in the
10 First Amended Complaint that would have been the same for Plaintiff in the absence of
11 a discriminatory motive. Defendants’ Sixteenth Affirmative Defense asserts as a
12 defense Plaintiff’s failure to exhaust internal preventative or corrective opportunities
13 provided by Defendant. However Defendant fails to put forward any facts to establish
14 this defense, either in the form of what, if any, measures actually exist, and more
15 specifically how Plaintiff failed to take advantage of them. Because of the failure to put
16 forward any facts to support these defenses, they must be stricken.
17 In Defendants’ Twenty-third (Bona Fide Qualification) and Twenty-fourth (Plaintiff
18 Not Disabled) Affirmative Defenses, Defendants simultaneously assert that all Plaintiff’s
19 causes of action are barred as their alleged discriminatory practice is justified as
20 affected individuals are unable to perform the job in question, while also asserting that
21 Plaintiff is not an affected individual. Putting aside the internal contradictions of these
22 positions, Defendants have once again made no more than bald assertions of legal
23 doctrine, and failed to provide any facts to support these defenses, and they should be
24 stricken.
25 With respect to Defendants’ Twenty-fifth Affirmative Defense (Failure to Request
26 Accommodation of Disability) and Twenty-sixth Affirmative Defense (Disability not
27 Known to Defendant), Defendants again not only fail to note any facts that support its
28 inclusion of these affirmative defenses, but again completely ignore specific facts plead
8 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 in Plaintiff’s First Amended Complaint. Plaintiff stated in his First Amended Complaint
2 that he was on medical leave from his employment for depression and that his doctor
3 recommended he be given a medical accommodation.
4 Defendants’ Twenty-seventh Affirmative Defense states as follows: “Plaintiff’s
5 purported causes of action, and each of them, are barred as Defendant took all
6 reasonable steps to prevent any alleged harassment once Defendant were made (sic)
7 aware of Plaintiff’s complaint, if he in fact complained.” Harassment is just one of
8 Plaintiff’s cause of action, so this Affirmative Defense cannot possibly bar each of
9 Plaintiff’s causes of action. Setting that aside, Defendants fail to put forward any facts
10 to establish this defense, thus this defense must be stricken.
11 VII. THE SIXTH, EIGHTH, NINTH, THIRTEENTH AND SEVENTEENTH
12 (DAMAGES DEFENSES) AFFIRMATIVE DEFENSES STATE NO FACTS TO
13 SUPPORT AN AFFIRMATIVE DEFENSE
14 In Defendants’ Sixth Affirmative Defense, Defendants attempt to allege that
15 somehow, if Plaintiff had been injured by any act, his damages resulted from his failure
16 to mitigate against his alleged damages. Again, Defendants have failed to supply any
17 facts whatsoever in support of this defense. Similarly, Defendants’ Eighth Affirmative
18 Defenses also failed to provide any facts whatsoever as to how Plaintiff’s First Amended
19 Complaint failed to state a claim for which punitive exemplary damages may be
20 awarded--it just makes the bald assertion that Plaintiff failed to show that Defendant
21 engaged in oppressive, fraudulent, or malicious conduct. These defenses must be
22 stricken.
23 With respect to Defendants’ Ninth Affirmative Defense (No Punitive Damages
24 against Corporate Defendant), Defendants fail to state which acts performed by a Home
25 Depot employee referred to in the First Amended Complaint were not ratified or
26 authorized, which employees committed the unauthorized acts, or which employee was
27 not employed with a conscious disregard of the rights or safety of others. In fact,
28 Defendants’ entire Answer did not specify any act or any employee. The Thirteenth
9 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 Affirmative Defense (Manager Did Not Make Corporate Policy) also fails to provide any
2 facts to support this defenses. Defendants’ fail to state which managers did not have
3 decision-making authority and why, rendering Defendants not liable for their managers’
4 unlawful behavior.
5 Similarly, Defendants’ Seventeenth Affirmative Defenses also failed to provide
6 any facts whatsoever as to how Plaintiff’s Complaint failed to properly state a claim for
7 which general, special, punitive and exemplary damages may be awarded.
8 Accordingly, these defenses must be stricken.
9 VIII. THE SEVENTH, NINETEENTH, AND TWENTY-FIRST (EQUITABLE
10 DEFENSES) AFFIRMATIVE DEFENSES STATE NO FACTS TO SUPPORT AN
11 AFFIRMATIVE DEFENSE
12 In its Seventh Affirmative Defense, Defendants attempt to set forth a defense of
13 unclean hands. This is an improper use of an equitable defense applicable only to
14 equitable claims not governed by an applicable legal limitations period and requires a
15 showing of prejudice to the Defendant. Motion Picture Studios Teachers & Welfare
16 Workers; Local No. 884 v. Millan 51 [Link]. 4th 1190, 1196-1197 (1996). Additionally,
17 it has at best questionable application in this type of employment case. Thus, no valid
18 unclean hands defense is or can be stated by Defendants. CCP §430.20(a). Even if
19 this equitable defense could apply, it is fact-based, and Defendant alleges no facts that
20 would constitute conduct amounting to unclean hands on Plaintiff’s part. CCP §430.20.
21 Further, in order to establish unclean hands, the defendant must show explicitly
22 that the plaintiff is not entitled to obtain an equitable remedy because they themselves
23 [the Plaintiff] has acted unethically, or in bad faith regarding the subject matter of the
24 complaint. That is, the plaintiff acted with “unclean hands.” The defendant always has
25 the burden of proof to show the plaintiff is not acting in good faith. The purpose of the
26 defense is not to protect the defendant’s interest but rather the court’s integrity. The
27 defense also is justified as promoting justice by making a plaintiff answer for his or
28 misconduct. Kendan-Jackson Winery, Ltd. v. Sup. Ct. (1999) 76 [Link]. 4th 970, 978.
10 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 In the instant case, Defendants provide no facts whatsoever to support this
2 defense.
3 The Nineteenth Affirmative Defense sets forth a claim of estoppel. However, in
4 order to establish that defense, the defendant must assert the following facts;
5 1. The party estopped must know the facts;
6 2. The party estopped must engage in conduct intended to be acted upon by
7 the party asserting estoppels;
8 3. The party asserting estoppel must be ignorant of the true state of the
9 facts; and
10 4. Injury must result from reliance on the other’s conduct.
11 Wells Fargo Bank v. Bank of Am. Nt&Sa (1995) 32 [Link]. 4th 424, 437. Moreover,
12 “[i]t is the burden of the party answering estoppels to prove all of its requisite elements,
13 and the doctrine is strictly applied and must be substantiated in every particular. Id. In
14 this case, no facts whatsoever are submitted within the Nineteenth Affirmative Defense.
15 The Twenty-first Affirmative Defense pleads a defense of waiver. Again, in order
16 to establish waiver, the defendant must show:
17 1. Plaintiff committed a voluntary act;
18 2. Knowingly done;
19 3. Plaintiff had sufficient awareness of relevant circumstances and likely
20 consequences;
21 4. Plaintiff had actual or constructive knowledge of the existence of the right
22 to which he was entitled [to seek redress upon];
23 In re Marriage of Moore (1980), 113 [Link]. 3d 2, 27. Moreover, there must be
24 “ . . .an actual intention to relinquish it or conduct so inconsistent with the intent to
25 enforce that right in question as to induce a reasonable belief that it has been
26 relinquished.” See Outboard Marine Corp. v. Sup. Ct. (1975) 52 [Link]. 30, 41; In re
27 Marriage of Perkal (1988) 203 [Link]. 3d 1198, 1203. In the instant action, Defendants
28 have provided no facts whatsoever in support of its Twenty-first Affirmative Defense.
11 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 IX. THE FOURTHEENTH AND TWENTIETH DEFENSES (TIMING) STATE NO
2 FACTS TO SUPPORT AN AFFIRMATIVE DEFENSE
3 The Fourteenth Affirmative Defense fails in each of its proffered allegations
4 regarding the statute of limitations. The Defense makes no mention of the date of the
5 filing the complaint, or of the relevant date that would begin the limitations period. In this
6 case, the Complaint was filed on May 3, 2010, within one year of the incidents alleged in
7 the complaint, thus satisfying all the noted statutes of limitations.
8 Additionally, Defendant alleges that under the Twentieth Affirmative Defense,
9 Plaintiff’s Complaint is barred by laches. Again, there is absolutely no evidence that
10 filing a complaint within one year of the alleged incidents is in any way barred by laches.
11 Thus, these Defenses should be stricken.
12 X. THE TWENTY-EIGHTH, TWENTY-NINTH, THIRTIETH, THIRTY-FIRST AND
13 THIRTY SECOND (COMPENSATION DEFENSES) AFFIRMATIVE DEFENSES STATE
14 NO FACTS TO SUPPORT AN AFFIRMATIVE DEFENSE
15 In Defendants’ Twenty-eighth (Proper Compensation) and Thirtieth (No
16 Knowledge) Affirmative Defenses, Defendants claim that Plaintiff was paid proper
17 compensation and that they had no knowledge Plaintiff performed uncompensated work.
18 With respect to the Thirty-first (No Intent of Depriving Wages) and Thirty-second (No
19 Showing of Unfair Competition) Affirmative Defenses, Defendants claim they did not
20 willfully deprive Plaintiff to his rightful wages, and that Plaintiff cannot show an injury to
21 competition as distinguished from an injury to Plaintiff. Once again, Defendants have
22 made no more than bald assertions of legal doctrine, and failed to provide any facts to
23 support these defenses, and they should thus be stricken.
24 Defendants’ Twenty-ninth Affirmative Defense alleges that Plaintiff’s claims for
25 overtime are barred because Plaintiff was an exempt employee. Yet Defendants fail to
26 state any facts about which overtime exemption they claim fits Plaintiff, and how Plaintiff
27 meets that overtime exemption. If these Defendants have any information upon which
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12 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 they base this affirmative defense, it is incumbent upon them to at least provide some
2 factual information for it. Accordingly, this defense must be stricken.
3 XI. THE THIRTY-THIRD, THIRTY-FOURTH, THIRTY-FIFTH, THIRTY-SIXTH,
4 THIRTY-SEVENTH, THIRTY-EIGHTH, THIRTY-NINTH AND FOURTIETH
5 (DEFAMATION DEFENSES) AFFIRMATIVE DEFENSES STATE NO FACTS TO
6 SUPPORT AN AFFIRMATIVE DEFENSE
7 Defendants Thirty-third (First Amendment Privilege) and Thirty-fourth (Truth)
8 Affirmative Defenses claim that Defendants’ acts are protected under the First
9 Amendment of the United States Constitution and Plaintiff’s action is barred for
10 defamation because the statements at issue were true. Again, here the Defendants
11 simply state the names of legal doctrines but don’t supply any facts whatsoever to
12 support the inclusion of said doctrine in this case. The defenses don’t state either what
13 acts they refer to and how they fall under 1 st Amendment protection, or what statement
14 was truthful such that it was not defamatory, respectively. These defenses must be
15 stricken.
16 With respect to the Defendants’ Thirty-fifth and Thirty-ninth Affirmative Defenses,
17 aside from the fact that Defendants have failed to state any facts in support of these
18 defenses, both Labor Code Section 1053 and Civil Code Section 47(c) relate to
19 employer protection from liability in the employment reference context. Labor Code §
20 1053 provides that upon special request, an employer can provide “a truthful
21 statement concerning the reason for the discharge of an employee or why an
22 employee voluntarily left the service of the employer.” Civil Code Section 47(c)
23 is even more explicit, stating it applies to “a communication concerning the job
24 performance . . .made . . .by employer of the applicant to. . .one whom the employer
25 reasonably believes is a prospective employer. Accordingly, neither of these defenses
26 apply here, as Plaintiff is not claiming defamation based on a job reference. These
27 defenses must be stricken.
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13 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 The Thirty-sixth (Lack of Malice), Thirty-seventh (Not Defamatory Per Se), Thirty-
2 eighth (Fair Comment), and Fortieth (Opinion) Affirmative Defenses are again instances
3 where the Defendants assert legal doctrines, but fail to provide any facts at all to support
4 those doctrines. These Affirmative Defenses must be stricken because they have utterly
5 failed to list any facts that support them.
6 It is obvious that Defendants’ answer is nothing more than a standard list of
7 boilerplate denials and legal conclusions. More than a century ago, our Supreme Court
8 explained that an affirmative defense must be claimed in the same manner as if the facts
9 were set forth in the complaint. In other words, the general requirement of stating the
10 ultimate facts applies, and if said ultimate facts are not pled, the defense fails. Brock v.
11 Tucker (1871) 42 Cal.346 and Greiss v. State Investment & Insurance Co. (1893) 98 Cal.
12 241. Affirmative defenses asserted by Defendants are mere boilerplate conclusions
13 without any factual basis or support. The fact that Defendants have chosen to term
14 these conclusions “affirmative defenses” is inadequate. FPI Development, Inc., 231 Cal.
15 3d at 384. Accordingly, the Court should sustain Plaintiff’s Demurrer because
16 Defendants’ affirmative defenses fail to state facts sufficient to constitute a defense.
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14 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
1 XII. CONCLUSION
2 It is apparent that the so-called “affirmative defenses” are nothing more than a
3 general denial, which Defendants have already asserted. Should this Demurrer be
4 overruled, Plaintiff will have to engage in extensive discovery to address each and every
5 factually devoid defense. Plaintiff contends that he should not be forced to expend time
6 and resources addressing and debunking these factually devoid defenses, at it is
7 Defendants’ duty and burden to plead the necessary facts.
8 Thus, for the reasons stated above, as well as in the interest of justice and judicial
9 economy, Plaintiff respectfully requests the Court SUSTAIN the Demurrer herein to
10 Defendants’ Answer without leave to amend.
11
12 Respectfully submitted,
13 DATED: July 15, 2010 LAW OFFICES OF CYNTHIA A. BROWNING
14 Cynthia A. Browning
15
16
17 ____________________________________
18 Attorney for Plaintiff
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15 Plaintiff Sampson’s Demurrer to Answer to First Amended Complaint
