Judge Mark A. Young, Case Number: 23SMCV01403, Date: 2023-12-01 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV01403, Date: 2023-12-01 Tentative Ruling

Case Number: 23SMCV01403 Hearing Date: December 1, 2023 Dept: M

CASE NO.: 23SMCV01403

MOTION: Motion for Judgment on the Pleadings

HEARING DATE: 11/3/2023

Legal Standard

A defendant’s motion for judgment on the pleadings may be made after the time to demur has expired and an answer has been filed. (CCP § 438(f).) A motion by a defendant may be made on the grounds that (1) the court “lacks jurisdiction of the subject of one or more of the causes of action alleged” or (2) the complaint or cross-complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (CCP § 438(c).)

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice.” (Wise v. Pacific Gas and Elec. Co. (2005) 132 Cal.App.4th 725, 738, citations omitted.) Further, like a general demurrer, a motion for judgment on the pleadings “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 overruled.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Analysis

Defendant Capital One moves for judgment on the pleadings as to Plaintiff Hunter “Milo Senaca” Nation’s complaint. Here, Plaintiff asserts a single claim for general negligence against Capital One. Based on the only factual allegations, Plaintiff apparently obtained a Capital One credit card. (Compl., at 6, ¶ 1.) Plaintiff claims to have lost “trillions of dollars monthly” for uncertain reasons. (Id.) Plaintiff contends that Defendant’s use of texting and not allowing in-person service subjects Defendant to liability under California Code Regulations, Title 16, § 1881(m). (Id., ¶ 3.) Title 16 regards specific professional and vocational regulations. Division 18, Article 6, section 1881, applies to “Licensed Clinical Social Workers.” This specific section provides: “As used in Section 4992.3 of the code, unprofessional conduct includes, but is not limited to… (m) Commits an act or omission which falls sufficiently below that standard of conduct of the profession as to constitute an act of gross negligence.” Indeed, this regulation has no apparent application to banks. As such, the Complaint is vague and does not state any cause of action.

Accordingly, the motion is GRANTED. Leave to amend will only be granted if Plaintiff can offer any facts supporting liability against Defendant.