Garcia v. The Kitchen medic, Inc.
This Motion is Defective as A Statutory Motion for Judgment on the Pleadings
A statutory motion for judgment on the pleadings is authorized by CCP ? 438.? When the plaintiff is the moving party, “The motion provided for in this section may only be made?on one of the following grounds:??(A) If the moving party is a plaintiff, that the complaint states?facts sufficient to constitute a cause or?causes of action against?the defendant and the answer does not state facts sufficient to?constitute a defense to the?complaint.” CCP?438(c)(1) (emphasis added).? Under this plain language, the plaintiff must demonstrate that the complaint states a claim and show that the answer is insufficient to establish any defense.
Here, Plaintiffs ignore the contents of the Answer which was filed by the Defendants on May 6, 2015 and which contained eight affirmative defenses including the defenses of independent contractor status, of an offset for equipment that Plaintiff Garcia allegedly took upon termination, and the defenses of estoppel, waiver, and lack of waiting time penalties due to Plaintiffs? failure to provide addresses.? (See ROA # 33).
Plaintiffs have not addressed the contents of these affirmative defenses in their briefing.? Without this, Plaintiffs are not entitled to judgment in their favor based on the pleadings.
In addition, a statutory motion for JOP cannot be brought later than within 30 days of the date the action is initially set for trial, unless leave of court is given.? CCP ?438(e).? Since the initial trial date here was 8 months ego (ROA #40, Minute Order setting initial trial date for 2/16/16), the time to file a statutory motion has expired.
As A Common Law Motion for Judgment on the Pleadings, the Motion is Also Inadequate
Case law recognizes there is a nonstatutory motion for judgment on the pleadings.? It generally may be heard at any time.? See Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.
However, even under the common law, the same rule is expressed as codified in the statutory motion, as it relates to plaintiffs seeking judgment on the pleadings. ??[A] plaintiff may recover judgment on a motion for judgment on the pleadings only if his complaint states facts sufficient to constitute a cause of action and the answer neither raises a material issue nor states a defense.? ? McClain v. City of South Pasadena?(1957) 155 Cal.App.2d 423, 430. ?The plaintiff ??may .?.?.?recover judgment, without the introduction of any evidence, if his complaint states facts sufficient to constitute a cause of action, and the answer, as interposed by the defendant . . . neither raises any material issue nor states a defense .?.?.?.?? ?Adjustment Corp. v. Hollywood etc. Co.?(1939) 35 Cal.App.2d 566, 569 -570.
As noted, Plaintiffs have not meaningfully discussed the affirmative defenses in the Answer, to support judgment on the pleadings in their favor.
The Sole Argument in Support of the Motion is Flawed
The sole basis on which Plaintiffs seek to move for judgment on the pleadings is this:? ???Defendant has no viable defenses to the complaint in light of the fact that the Truth of the Facts have been Judicially Deemed Admitted? in discovery.? (See Mot. at 4:6). ????Plaintiffs attach evidence to their moving brief the following evidence to support their point:?? ?1) their Notice of Ruling, filed 9/2016, concerning the granting of ?motions to have requests for admissions deemed admitted?; and 2) copies of their Requests for Admissions apparently propounded to the Defendants.
The Court may not reasonably consider this evidence here.? Like a demurrer, the grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or matters of which the Court can take judicial notice.? CCP ? 438(e).? This type of motion is pleading challenge, and hence only attacks defects disclosed on the face of the pleadings.? ?Presentation of extrinsic evidence is therefore not proper on the motion for judgment on the pleadings.?? Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.
As one treatise advises:? ?Therefore, the judge hearing the motion cannot consider discovery admissions or other evidence controverting the pleadings. . . . If you need to controvert material fact in the pleading, the proper vehicle is a motion for summary judgment rather than one for judgment on the pleadings. . . ?? Cal. Prac. Guide Civ. Pro. Before Trial ? 7:322 (Rutter Group 2016).
Plaintiffs? evidence is therefore not considered. ?The Court has not received a request for judicial notice of materials, that identifies on what grounds the evidence that is attached to Plaintiffs? papers is proper to consider under the guidelines for judicial notice.? ?Compare Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1191 (stating that a pleading motion should not be turned ?into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.?).
Moreover, Plaintiffs? evidence is inadequate in part. ?For example, the parties? ?Notices of Ruling? are not the means to establish the rulings of the Court.? The Court?s decisions are reflected in minute orders or in the signed orders of judicial officers.? See generally CCP ?1003 (directions of the Court made in writing are orders).
To the extent that Plaintiffs may hope to use the evidence of ?deemed admissions? to obtain a judgment in their favor, this Court must take judicial notice of the fact that Defendant Chris Corrales, filed a motion ostensibly moving the Court to set aside the deemed admissions, on September 29, 2016.? (See ROA #100 and Evid. Code ? 452(d) (judicial notice may be taken of court records).? The motion is scheduled for hearing on October 31st.? With an important and related matter pending, the Court would not be inclined to grant judgment to the Plaintiffs, even if their motion did not suffer the various defects mentioned above.
Argument re: Defendant, The Kitchen Medic Inc.
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In their moving brief, Plaintiffs provide a sentence that Kitchen Medic is an unrepresented corporation, that it lacks legal capacity to engage in the proceedings, and therefore apparently, judgment should be granted in favor of the Plaintiffs.? (Mot. at 3:19).? This assertion is not supported by any references to the court records to establish the point.? As noted, the grounds for a judgment on the pleadings, must appear in the face of the challenged pleading, or in matters presented to the Court for judicial notice.? The stated defect is not apparent from the face of the Complaint or from the face of the Answer filed 5/6/15.? Since there is no proper material presented for judicial notice, nor briefing, the Court does not consider the point at this time. See People v. Stanley (1995) 10 Cal.4th 764, 793 (?Every brief should contain a legal argument with citation to authorities on the points made.? If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.?).
Plaintiffs? Motion for Judgment on the Pleadings is DENIED. ?Plaintiff to give notice of this ruling.