Judge Mark E. Windham, Case 19STCV11064 2023-01-04 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

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Plaintiff Lloyd Byer’s Motion for Judgment on the Pleadings against Defendant Norman Lee Shertell aka Norm Shertell is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Plaintiff Lloyd Byers (“Plaintiff”) filed the instant action for breach of contract, conversion, trespass to chattles, fraud, infliction of emotional distress, and related claims against Defendant Norman Lee Shertell aka Norm Shertell (“Defendant”) on April 2, 2019. Defendant filed an Answer to the Complaint on September 24, 2019. On December 1, 2021, the Court denied Defendant’s Motion to Reclassify this action to a court of limited jurisdiction. (Minute Order, 12/01/21.) Upon reconsideration, however, the Motion to Reclassify was granted on February 14, 2022. (Minute Order, 02/14/22.)

Plaintiff filed the instant Motion for Judgment on the Pleadings on May 18, 2022. At the initial hearing date on September 6, 2022, the Court continued the matter to allow for proper notice to Defendant. (Minute Order, 09/06/22.) At the second hearing on November 3, 2022, the matter was continued again to allow Defendant to file an opposition, due by December 1, 2022 and Plaintiff to file a reply, due by December 22, 2022. (Minute Order, 11/03/22.)

Defendant filed an opposition on December 1, 2022 and Plaintiff replied on December 23, 2022.

Plaintiff moves for judgment on the pleadings with respect to the Answer on the basis that insufficient facts are alleged to support the affirmative defenses asserted therein. The Motion is brought pursuant to Code of Civil Procedure section 438, pursuant to which the parties are required to meet and confer. (Code Civ. Proc., §§ 438, 439.) As Defendant points out, the Motion is not accompanied by a meet and confer declaration, as required. (Code Civ. Proc., § 439, subd. (a).) However, failure to include a meet and confer declaration is not grounds to deny the Motion. (Code Civ. Proc., § 439, subd. (a)(4).)

Defendant also points out that a Motion for Judgment on the Pleadings cannot be made “if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc., § 439, subd. (e).) However, Defendant offers no reason why the Court should not exercise its discretion to allow the Motion from proceeding. (Opp., p. 5:22-23.) Its argument that the Court must take the Motion off calendar is contrary to the statutory language.

Substantively, 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 may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Plaintiff’s request for judicial notice of (1) Defendant’s Answer filed on September 24, 2019; and (2) Plaintiff’s Summons and Complaint filed on April 2, 2019, is granted pursuant to Cal. Evidence Code section 452, subdivision (d).

As Plaintiff points out in the Motion, the various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.” (Code Civ. Proc., § 431.30, subd. (g).) Also, in order to sufficiently state an affirmative defense in the Answer, new facts must be alleged. (Code Civ. Proc., § 431.30, subd. (b)(2).) Finally, the same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as when pleading the Complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) In other words, the Answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the Complaint. (Ibid.)

The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., 120 Cal.App. 589, 600, 8 P.2d 560.) This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. (Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 600, 8 P.2d 560; Sheward v. Citizens' Water Co., 90 Cal. 635, 639, 27 P. 439; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p. 489.)

(South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) Plaintiff correctly points out that the Answer does not allege any new facts to support the affirmative defenses. (Answer, ¶¶1-13.) Instead, the Answer relies on conclusions that recite the legal basis of each defense. (Ibid.) In comparison, the Complaint provides a detailed factual account to support the causes of action asserted against Defendant. Specifically, the Complaint includes background facts prior to setting forth each cause of action, for which further factual allegations are included with respect to each of the 16 causes of action. (See Compl., ¶¶1-115.) The Complaint is neither unstructured, nor disorganized, as Defendant contends. It is the Answer that fails to allege sufficient to state the affirmative defenses as required under the aforementioned legal standard.

Based on the foregoing, Plaintiff is entitled to judgment on the pleadings as to Defendant’s Answer.

Plaintiff Lloyd Byer’s Motion for Judgment on the Pleadings against Defendant Norman Lee Shertell aka Norm Shertell is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.