Judge: Katherine Chilton, Case: 21STLC03446, Date: 2022-08-15 Tentative Ruling

Case Number: 21STLC03446     Hearing Date: August 15, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR JUDGMENT ON THE PLEADINGS  

MOVING PARTY:   Plaintiff Caviar Mickens

RESP. PARTY:         None

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

Plaintiff Caviar Mickens’s Motion for Judgment on the Pleadings is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NO

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NO

OPPOSITION:          None filed as of August 11, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 11, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 30, 2021, Plaintiff Caviar Mickens (“Plaintiff”), in pro per, filed an action against Defendant Life Gym (“Defendant”) for “1. Harassment, 2. Discrimination, 3. Negligent Intentional Inflicted [sic] of Emotional Distress, 4. Deprivation; Denying Entrance.”  Plaintiff had not filed a proof of service to show that Defendant Life Gym has been properly served with the complaint. Therefore, not surprisingly, no responsive pleading had been filed.

On June 3, 2022, Plaintiff filed the instant Motion for Judgment on the Pleadings.  In addition to no answer to the complaint due to the apparent lack of service, no opposition was filed.

On July 14, 2022, the Court continued the hearing on the Motion to allow Plaintiff an opportunity to file Proof of Service of the Summons and Complaint and the Notice of Motion and Motion at least five (5) court days before the next scheduled hearing.  (7-14-22 Minute Order.)  The Court also ordered Plaintiff “to meet and confer with the Defendant regarding the Motion, in person or over the phone, and to file a declaration attesting to his efforts and the outcome at least five (5) court days before the next scheduled hearing.”  (Ibid.)

            On August 10, 2022, three (3) days before the scheduled hearing, Plaintiff filed a Proof of Service, showing that, on August 4, 2022, Defendant was served with the Summons and Complaint and Notice of Motion and Motion by mail at its business address.  (8-10-22 Notice, Attach. 1 – Doc. 1.) 

II.              Legal Standard

The Plaintiff may file a motion for judgment on the pleadings on the grounds 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.”  (Code of Civ. Proc. § 438.)  The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)  Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits.  (Id.)  “The motion is confined to the face of the pleading under attack and all facts alleged in the complaint must be accepted as true.” (Hightower v. Farmers Insurance Exchange (1995) 38 Cal.App.4th 853, 858.)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed.  (Code Civ. Proc. § 439.)

III.            Discussion

A.    Proof of Service

            According to the California Rules of Court § 3.1300, “all moving and supporting papers must be served and filed in accordance with the Code of Civil Procedure section 1005.”  Code of Civil Procedure § 1005 outlines the requirements for service.  Once served, the Proof of Service, in compliance with the requirements of Code of Civil Procedure § 417.10, must be filed with the court.

On July 14, 2022, the Court continued the hearing on the Motion to allow Plaintiff an opportunity to file Proof of Service of the Summons and Complaint and the Notice of Motion and Motion at least five (5) court days before the next scheduled hearing.  (7-14-22 Minute Order.) 

There are several procedural defects that Plaintiff has not cured.

First, Proof of Service was filed three (3) court days before the hearing, instead of the required (5) court days, and, therefore, it is not timely.

Second, the Proof of Service that was filed indicates that Defendant was served with the Notice of Motion and Motion on August 4, 2022, merely seven (7) court days before the hearing.  According to Code of Civil Procedure § 1005(b) moving papers must be served 16 court days before a hearing, with an additional five (5) days in case of service by mail.  Furthermore, the Notice is defective because it contains conflicting and inaccurate information about the hearing.  On the first page of the Notice, Plaintiff states that the hearing date is 7/15/22 at 10 a.m. and also states that the hearing is on August 8, 2022, at 12 p.m.; both dates are incorrect.

            For these reasons, the Court finds that Defendant was not served with the Notice of Motion and Motion properly and in time for the hearing.

B.    Meet and Confer Requirement

Code of Civil Procedure § 439(a) states that “before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.”  The moving party “shall file and serve with the motion for judgment on the pleadings a declaration” that either states that a meeting took place or that the non-moving party did not respond to the request.  Although a determination that the meet and confer process was insufficient is not grounds to grant or deny a motion for judgment on the pleadings, that does not mean the requirement can be wholly ignored.  (Code. Civ. Proc. § 439(a)(4).

On in continuing the hearing on July 14, 2022, the Court also ordered Plaintiff “to meet and confer with the Defendant regarding the Motion, in person or over the phone, and to file a declaration attesting to his efforts and the outcome at least five (5) court days before the next scheduled hearing.”  (7-14-22 Minute Order.)  There is no additional documentation submitted indicating that Plaintiff met and conferred with Defendant.

Accordingly, Plaintiff has not complied with the procedural requirements and Court Order.  Plaintiff’s Motion for Judgment on the Pleadings is DENIED.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Caviar Mickens’s Motion for Judgment on the Pleadings is DENIED.

Moving party is ordered to give notice.