Judge: Mark C. Kim, Case: 19STCV16319, Date: 2022-10-20 Tentative Ruling
Case Number: 19STCV16319 Hearing Date: October 20, 2022 Dept: S27
The City filed summary judgment
motion on 7/13/22, setting it for hearing on 9/13/22. Plaintiffs objected to the motion, correctly
noting that the moving papers were neither filed nor served at least 75 days
prior to the hearing date, as required by CCP §437c. The Court denied the motion due to the
procedural defect.
On 9/28/22, the City filed this
motion for judgment on the pleadings. It
is denied for a simple reason. The motion
is based entirely on the Declaration of Elizabeth Williams, who attaches the
Declaration of Jennifer Moon, who attaches portions of Plaintiff’s deposition
testimony. The Court cannot consider
declarations when ruling on a motion for judgment on the pleadings. It can consider only the complaint itself and
judicially noticeable documents. CCP §438(d),
Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 758-759.
The City did not file a request for
judicial notice. Even if it had, while
the Court can take judicial notice of unequivocal discovery responses based on
personal knowledge (see Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th
71, 83-84), the nature of deposition testimony is such that it can be
cherry-picked to seek out the results desired by the moving party. This is why deposition testimony is typically
used in connection with a motion for summary judgment and not a pleadings motion;
with the procedural safeguards of a separate statement, the opposing party has
the opportunity to provide additional contrary testimony, explain the testimony,
etc. Pursuant to Silguero v. Creteguard,
Inc. (2010) 187 Cal.App.4th 60, 64, the Court cannot consider
deposition testimony whose truthfulness or proper interpretation are disputable
when ruling on a demurrer; notably, in Garcia v. Sterling (1985) 176 Cal.App.3d
17, 22, the Court went farther, holding that while the existence of deposition
testimony can be judicially noticed, the truth of anything stated in the testimony
cannot.
In any event, absent a proper
request for judicial notice, the motion is unfounded and denied.
The FSC remains on calendar today
concurrently with the hearing on the MJP.
The trial date of 10/24/22 stands.