Judge: Margaret L. Oldendorf, Case: 21BBCV00304, Date: 2023-01-04 Tentative Ruling


Case Number: 21BBCV00304    Hearing Date: January 4, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

HOMER DYER,

 

                                            Plaintiff,

vs.

 

THOMAS MCINTYRE; KENNETH EPSMAN; and DOES 1 to 10, inclusive,

 

                                            Defendants.

 

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Case No.: 21BBCV00304

 

 

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

 

Date:   January 4, 2023

Time:  8:30 a.m.

Dept.:  P

 

 

 

            I.         INTRODUCTION

            Plaintiff Homer Dyer (Dyer) owns a vintage 1970 Trans-Am Javelin race car. The Trans-Am class of cars ran as professional race cars from 1966-1972. Dyer purchased the Javenil in 1971 and raced in various races in the 70s. Over the decades Dyer has spent hundreds of thousands of dollars on the vehicle and began vintage racing in 2007.

            According to the allegations in Dyer’s First Amended Complaint, Defendants Thomas McIntyre and Kenneth Epsman are leaders of the Historic Trans-Am group (HTA). The Sportcar Vintage Racing Association (SVRA) promotes amateur races of vintage cars. The SVRA delegates authority to determine who is eligible to race in its events to third-party local chapter group leaders, many of whom race themselves. McIntrye and Epsman, as HTA leaders, have authority to determine which vehicle are eligible to race in the HTA class. The principal charging allegation is that they have wrongly disqualified Dyer’s Javelin from racing in SVRA events.

            This lawsuit is essentially one for defamation. Dyer alleges that McIntyre and Epsman have made unprivileged statements disparaging the quality of his Javelin, including that it was not properly prepared or that it had some other unspecified problem that made it unfit to race. These statements were alleged to have been made to each other and to third parties, including HTA officials, SVRA officials, and others. The statements are alleged to be untrue and known by Defendants to be untrue. These allegedly false purportedly caused Dyer harm in that they have decreased the value of his Javelin and exposed him to hatred, contempt, and ridicule, or caused him to be shunned or avoided, thereby injuring him in his racing activities. The operative First Amended Complaint alleges claims for Libel, Defamation, Negligence, Conspiracy, and Unfair Business Practice.

            Before the Court is Defendants’ motion for judgment on the pleadings. The motion is denied on procedural grounds.       

 

II.        LEGAL STANDARD

            Code Civ. Proc. §438 governs motions for judgment on the pleading. Subdivision (f)(2) provides that where the moving party is a defendant, a “motion provided for in this section may be made only after . . . the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.”

            Subdivision (c) provides the potential bases on which a motion for judgment on the pleadings may be made. Where the moving party is a defendant they are two: the court has no subject matter jurisdiction; or the complaint does not state facts sufficient to constitute a cause of action against that defendant. Grounds for the motion must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Code Civ. Proc. §438(d).

            Code Civ. Proc. §439(a)(2) mandates that five days before filing a motion for judgment on the pleadings, the parties meet and confer in person.

 

III.      ANALYSIS

            Defendants’ motion is fatally defective in two ways: (1) to the extent there was any pre-filing meet and confer, it was done on the same day that the motion was filed rather than the required five days prior; (2) the motion was filed before the filing of an answer or expiration of the time to demur. The motion is denied because of these procedural defects.

            Defendants filed an untimely reply brief arguing that the motion is procedurally proper because it was filed after their answer to the original complaint and moreover, that time is of the essence because of the impending trial date. These arguments are unpersuasive.  Defendants attack the operative First Amended Complaint, not the original Complaint. Defendants cite no legal authority supporting their position that a motion for judgment on the pleadings is appropriate under these circumstances.

            Although the motion fails for procedural reasons, the Court offers the following observation regarding its substance:  the First Amended Complaint alleges claims for defamation, negligence, conspiracy, and unfair business practices. The only potentially valid argument made in the motion for judgment on the pleadings (voluntary membership in private organization is not a legal right; Dyer admits his participation is a hobby and not a business) apply to the unfair business practice cause of action, which Dyer admits in his opposition should be deleted. Dyer is free to remedy that problem by filing a dismissal of that cause of action.

IV.      CONCLUSION AND ORDER

            The motion for judgment on the pleadings is denied. Defendants are ordered to answer the First Amended Complaint within five (5) days.

            Plaintiff is ordered to give notice.

           

 

Dated:                                                                        _______________________________

                                                                                          MARGARET L. OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT