In ruling on the defendants' motion for summary adjudication, Judge Battaglia rejected the plaintiffs' argument that the defendants had waived any arguments about demand futility because they never asserted it as an affirmative defense in their answer or file a motion to dismiss on that basis:

Plaintiffs, however, cite no case law holding that demand futility is an affirmative defense that is waived if not challenged on a motion to dismiss.  Without controlling authority to the contrary, the Court agrees with Defendants that Plaintiffs bear the burden to establish demand futility, and that the issue remains live for adjudication on summary judgment. 

Despite prevailing on this question, the defendants failed to persuade Judge Battaglia to grant their motion for summary adjudication.