Judge: Malcolm Mackey, Case: 21STCV39406, Date: 2022-10-20 Tentative Ruling

Case Number: 21STCV39406    Hearing Date: October 20, 2022    Dept: 55

CARRADINE v. DEWITTE                                                           21STCV39406

Hearing Date:  10/20/22,  Dept. 55

#9:   MOTION FOR JUDGMENT ON THE PLEADINGS.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendants

Summary

On 10/26/21, Plaintiff SANDRA WILL CARRADINE, a self-represented litigant, filed a Complaint.

On 3/10/22, Plaintiff filed a First Amended Complaint, alleging:  For years, defendants have been trying to drive Plaintiff out of her leased premises, including by fraud.  Plaintiff successfully obtained summary judgment in an unlawful detainer action, based upon having a lease with an option to purchase, at 2115 N. Upper Krest St., Los Angeles, CA 90046.  Defendant DEWITTE MORTGAGE INVESTORS FUND, LLC (DMIF) had foreclosed on a second deed of trust. Also, Defendant PETER DEWITTE recorded an assignment of a deed of trust to himself, and seeks to foreclose on the extinguished first deed of trust, using CLE CAPITAL PARTNERS LLC (CLE) as a strawman.

The causes of action are:

1.      FRAUD.

2.      VIOLATION OF ANTI-HARASSMENT ORDINANCE.

3.      BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.

4.      TORTIOUS INTERFERENCE WITH CONTRACT.

On 3/3/22, defendants DE WITTE MORTGAGE INVESTORS FUND LLC and PETER DE WITTE filed a Cross-Complaint against Plaintiff and others, alleging that cross-defendants made publications including a lis pendens against the property, which casts doubts on the propriety of cross-complainants’ claims to title in the Property.

Cross-complainants’ Causes of Action are:

1. SLANDER OF TITLE;

2. INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS;

3. NEGLIGENT INTERFERENCE WITH ECONOMIC RELATIONS;

4. DECLARATORY RELIEF;

5. EJECTMENT;

6. FRAUDULENT INTENTIONAL MISREPRESENTATION; AND

7. NEGLIGENT MISREPRESENTATION.

MP Positions

Moving party requests an order granting judgment on the pleadings, as to the original Answer, and the First Amended Complaint, on grounds including the following:

·         Plaintiff's First Amended Verified Complaint is sufficiently plead as to each of the causes of action.

·         CCP § 438 provides that, parties may move for judgment on the pleadings on the grounds the complaint states facts sufficient to constitute a cause of action against the defendant and the answer is legally insufficient.

·         Defendants effectively waived objections to considering the motion as to the amended answer, by reaching the merits.

·         The amended answer fails to allege sufficient facts, as did the answer.

RP Positions

Opposing parties advocate denying, on bases including the following:

·         The motion addresses the superseded Answer, instead of the First Amended Answer.

·         Defendants' First Amended Answer more than adequately states facts sufficient to constitute a defense to the complaint.

Tentative Ruling

The motion is ordered off calendar, in light of the superseding First Amended Answer filed 9/29/22, stating supportive, ultimate facts, not addressed in the motion filed 6/16/22.

Judges disregard previously filed pleadings, after an amended pleading has been filed.  Berman v. Bromberg  (1997) 56 Cal.App.4th 936, 945-46.

Courts may only consider issues or grounds specified in the notice of motion or supporting papers incorporated by reference in the notice. Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125; Geary St., L.P. v. Sup. Ct. (1990) 219 Cal.App.3d 1186, 1199-1200;   People v. Am. Sur. Ins. Co. (1999) 75 Cal. App. 4th 719, 726;  Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808;  Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 570;  Traders' Credit Corp. v. Sup. Ct. (1931) 111 Cal.App. 663, 665.  “Absent a showing of extremely good cause…,” courts are disinclined to treat motions as being different from the label that counsel attach to their motions.   Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1610.