Judge Mark E. Windham, Case 21STLC08650 2022-12-19 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC08650, Date: 2022-12-19 Tentative Ruling

Case Number: 21STLC08650 Hearing Date: December 19, 2022 Dept: 26

Jaurigue Law Group v. Gonzalez, et al.

JUDGMENT ON THE PLEADINGS

(Code Civ. Proc., § 438; Smiley v. Citibank (1995) 11 Cal.4th 138, 145-146)

TENTATIVE RULING:

Motion of Defendant Maria A. Gonzalez, by and through her Guardian Ad Litem, Rosie Samples, for Judgment on the Pleadings against Plaintiff Jaurigue Law Group is GRANTED.

DEFENDANT IS TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Jaurigue Law Group (“Plaintiff”) filed the instant action for breach of retainer agreement against Defendant Maria A. Gonzalez, by and through her Guardian Ad Litem, Rosie Samples (“Defendant”) on December 7, 2021. Defendant answered on March 4, 2022 and filed the instant Motion for Judgment on the Pleadings on November 21, 2022. Plaintiff filed an opposition on December 8, 2022 and Defendant replied on December 12, 2022.

Legal Standard

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.)

While a statutory motion for judgment on the pleadings brought pursuant to Code of Civil Procedure section 438, et seq. must be accompanied by a meet and confer declaration, there is no such requirement for a motion for judgment on the pleadings brought pursuant to the common law. (See Code Civ. Proc., § 439 [moving party must file declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed].)

Discussion

The Complaint alleges that the parties entered into a retainer agreement on May 23, 2018 with respect to a bankruptcy proceeding. (Compl., ¶BC-1.) Defendant allegedly breached the agreement on October 4, 2019 by failing to pay for the legal services provided. (Id. at BC-2.) As a result, Defendant allegedly incurred $20,973.34 in damages. (Id. at ¶¶BC-4 and BC-5.)

Defendant moves for judgment on the pleadings with respect to the Complaint on the grounds that she already filed an action against Plaintiff alleging malpractice and that this breach of retainer agreement claim should have been brought as a compulsory cross-claim. The Motion is accompanied by a meet and confer letter. (Motion, Furman Decl., ¶¶3-4 and Exh. A.) Defendant requests that the Court take judicial notice of (1) the Complaint in this action; (2) the Complaint in Gonzalez v. Jaurigue Law Firm, Los Angeles Superior Court Case No. 20STCV25227; (3) the Answer in Gonzalez v. Jaurigue Law Firm, Los Angeles Superior Court Case No. 20STCV25227; and (4) the registrar of actions in Gonzalez v. Jaurigue Law Firm, Los Angeles Superior Court Case No. 20STCV25227. The Court takes judicial notice of these documents pursuant to Cal. Evidence Code section 452, subdivision (d).

The Complaint in the malpractice action arises out of the same facts as this case. Defendant alleges that starting in May 2018, Plaintiff represented her with respect to a voluntary Chapter 11 bankruptcy and due to various failures by Plaintiff, the court converted the bankruptcy to a Chapter 7 processing under which Defendant lost all control of the real property assets. (Motion, RJN, Exh. 2, p. 4.) Plaintiff filed an Answer to the malpractice complaint on November 18, 2021. (Id. at Exh. 3.) No cross-complaint has been filed in the malpractice action by Plaintiff raising the breach of retainer agreement alleged in this action. (Id. at Exh. 4.) This action for breach of retainer agreement is related to the malpractice cause of action, and therefore, a compulsory cross-claim. (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 498.) Under Code of Civil Procedure section 426.30, Plaintiff was required to bring this related action in the malpractice case and its failure to do so bars this action. (Code Civ. Proc., § 426.30, subd. (a).)

Plaintiff’s opposition makes two arguments to avoid the grant of judgment on the pleadings in this action, neither of which is procedurally proper. First, it asks for relief under Code of Civil Procedure section 473, subdivision (b). But relief from what? From failure to file a counterclaim in the malpractice action? The request must be made with respect to an judgment, dismissal, order, or other proceeding. (Code Civ. Proc., § 473, subd. (b).) Presumably, such a request must be made in the malpractice action, not here. Nor can the cases simply be consolidated to remedy Plaintiff’s failure to file a cross-complaint in the malpractice action. None of the procedural requirements for consolidation—set forth in Cal. Rules of Court 3.350 and Los Angeles Superior Court Rule 3.3(f) and (g)—have been met.

Conclusion

Motion of Defendant Maria A. Gonzalez, by and through her Guardian Ad Litem, Rosie Samples, for Judgment on the Pleadings against Plaintiff Jaurigue Law Group is GRANTED.

DEFENDANT IS STO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS OF THIS ORDER.

Moving party to give notice.