Judge: Gregory Keosian, Case: 21STCV42615, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV42615    Hearing Date: October 20, 2022    Dept: 61

Defendant Southside Neighborhood Stabilization 2021-8’s Motion for Judgment on the Pleadings is GRANTED, without leave to amend. The Court orders Plaintiff EFG Investment LLC’s Complaint filed on November 18, 2021, dismissed without prejudice as to that Defendant.

A defendant may move for judgment on the pleadings if the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B).) The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) Thus, it may be granted if, from the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Code Civ. Proc., § 438(d); Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.)

In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action. (Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal.App.4th 446, 452-453.) Judgment on the pleadings, like a general demurrer, does not lie as to a portion of a cause of action and, if any part of a cause of action is properly pleaded, the motion will be denied. (Id. at p. 452.)

A party moving for judgment on the pleadings must meet and confer with the party who filed the pleading to determine if an agreement can be reached regarding the issues raised in the motion. (Code Civ. Proc., § 439, subd. (a).) The moving party must file a declaration detailing the meet and confer efforts.  (Code Civ. Proc., § 439, subd. (a)(3).)

Defense counsel declares that he attempted to meet and confer with Plaintiff on several occasions but was unable to get a hold of Plaintiff’s counsel. (Declaration of Marshal J. August, filed on August 17, 2022 (“August Decl.”), ¶¶ 1-5.) When he finally reached Plaintiff’s counsel, the latter suggested that Southside can file the instant motion without any attempt to resolve the issues in the pleading. (August Decl., ¶ 7.)

The Court finds that Southside has shown good faith attempt to meet and confer with Plaintiff.

Southside argues it is entitled to judgment on the pleadings because the Complaint fails to state any cause of action against it. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) According to the defendant, the Complaint appears to attempt to allege a negligence cause of action against it. However, the pleading fails to allege what duty of care (if any) the defendant owed to Plaintiff, breach, and the damages that flowed from that breach.

The Court agrees that there are no facts alleging any wrongful conduct on the part of Southside. For example, “[c]onversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]’ [Citation.]” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) “An innocent buyer from one without title or right to sell is ordinarily liable for conversion.’ [Citation.]” (Id. at p. 1182.) Here, the Complaint only alleges that Southside was “another” successful bidder without explaining the significance of that fact (e.g., that Southside holds title to converted property). In addition, the Complain does not allege that Southside had anything to do with the trustee’s sale except being another successful bidder. Therefore, it is uncertain why Plaintiff is suing Southside.

The burden is on the Plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, Plaintiff “must show in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Here, Southside’s proof of service indicates that the defendant served Plaintiff its moving papers on August 17, 2022. (Motion, the second to the last page.) Despite being served the motion, Plaintiff has not filed any opposition. Therefore, Plaintiff has failed to meet its burden of articulating how it can amend its Complaint to allege a cause of action against Southside.

For those reasons, the Court grants Southside’s motion for judgment on the pleadings, without leave to amend.

Counsel for Defendant to provide Notice.