Judge: James L. Crandall, Case: 21-1200140, Date: 2022-08-18 Tentative Ruling

Motion for Judgment on the Pleadings

Plaintiff/Cross-Defendant Kenneth Hendel’s motion for judgment on the pleadings as to the cross-complaint of Internet Escrow Services, Inc. is DENIED.

Plaintiff’s request for judicial notice of Florida court records (Exhibits A-I) is granted.

The request for judicial notice of records in this case is denied because the Court can consider filings in the present case without judicial notice.

The cross-complaint alleges a cause of action for breach of contract, seeking recovery of attorney fees arising from Plaintiff’s pursuit of this lawsuit in Florida court in violation of the forum selection clause in the Escrow Agreement.

Plaintiff contends the cross-complaint is barred by the orders of the Florida courts, which denied Defendant’s request for recovery of attorney fees.

Plaintiff previously filed a demurrer on the same grounds, which was overruled on 3/17/22.

Code of Civil Procedure section 438, which governs a motion for judgment on the pleadings, states in part:

“(g) The motion provided for in this section may be made even though either of the following conditions exist:

(1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.

(2) The moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section.”

Plaintiff argues that the Court retains common law authority to consider this motion, although no material change in law has occurred under section 438(g).

Plaintiff contends that the motion is based on judicially noticeable documents demonstrating the existence of preclusion which were not submitted in support of the demurrer. However, Plaintiff has not explained why such documents were not included with the demurrer.

Case law suggests that the Court retains authority to consider a motion for judgment on the pleadings under the common law, and “an objection that the pleading does not state facts sufficient to constitute a cause of action” is never waived. (See Code Civ. Proc. § 430.80; Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1055.)

However, Plaintiff has not cited any legal authority requiring the court to consider a motion for judgment on the pleadings on the same grounds that were already raised via demurrer, absent any material change in circumstances or law.

Plaintiff will have the opportunity to raise these arguments via a motion for summary judgment, at which time the Court can consider evidence such as the contract upon which Cross-Complainant’s claim is based.

Without the ability to review evidence including the underlying contract, it is difficult to determine whether the Florida courts’ decision has preclusive effect in this case.

Addressing all of Plaintiff’s arguments regarding the cross-complaint by motion for summary judgment may also avoid potential piecemeal appeals.

Therefore, the Court declines to consider the merits of the motion for judgment on the pleadings which is based on the same grounds raised in the prior demurrer.

Future hearing dates

1/13/23 – MSC

2/6/23 – Jury Trial