Judge: Mark E. Windham, Case: 22STLC03332, Date: 2022-12-14 Tentative Ruling

Case Number: 22STLC03332    Hearing Date: December 14, 2022    Dept: 26

Sisi Missy, Inc v. Anderson, et al.

JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

Defendant Doris Anderson’s Motion for Judgment on the Pleadings is GRANTED.

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

ANALYSIS:

On May 16, 2022, Plaintiff Sisi Missy, Inc. dba CDP Construction (“Plaintiff”) filed the instant action to foreclose on a mechanic’s lien against Defendant Doris Anderson (“Defendant”). Defendant filed the instant response to the Petition, entitled “Demurrer to Plaintiff’s Complaint” on June 16, 2022. However, the “Demurrer” is brought pursuant to the statute for judgment on the pleadings, Code of Civil Procedure section 438. (Demurrer, p. 2:1-8.) Accordingly, the Court will treat the Motion as one for judgment on the pleadings.

The Motion for Judgment on the Pleadings initially came for hearing on July 13, 2022 at which time the Court continued the matter to allow for a meet and confer effort. (Minute Order, 07/13/22.) Defendant filed a meet and confer declaration on September 30, 2022.

No opposition has been filed to date.

Discussion

Defendant moves for judgment on the pleadings pursuant to Code of Civil Procedure section 438 on the grounds the court has no jurisdiction of the subject cause of action and the complaint does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc. § 438, subd. (b)(1)(B)(i)-(ii).) 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.)

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. (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].) Defendant filed a satisfactory meet and confer declaration on September 30, 2022. (Brooke Decl., Exhs. A-B.)

The Complaint alleges a single cause of action for foreclosure of mechanic’s lien. (Compl., ¶¶16-20.)

A complaint to foreclose a mechanic’s lien must show a substantial compliance with the statute as to the contents and filing of the notice of lien, Barilari v. Ferrea, 59 Cal. 1; Goss v. Strelitz, 54 Cal. 640; McCreary v. Toronto Midway Oil Co., 38 Cal.App. 17, 175 P. 87. Among other things it must, either by direct allegation, or by an attached copy of the notice of lien, show that the claim of lien contains the name of the owner or reputed owner of the property, if known, a sufficient description of the property, Schalich v. Bell, 173 Cal. 773, 161 P. 983, and is duly verified. The complaint must show that the claim of lien was filed within the prescribed period, Cohn v. Wright, 89 Cal. 86, 26 P. 643; 17 Cal.Jur. pp. 193, 194.

(Clements v. T. R. Bechtel Co. (1954) 43 Cal.2d 227, 238.) Additionally, a complaint to foreclose on a mechanic’s lien must allege the kind of work done or the materials furnished. (Id. at 240.) As Defendant points out, neither the notice of lien nor the Complaint in this action allege what kind of work Defendant performed or the materials it furnished. Instead, the Complaint and lien broadly allege that Plaintiff furnished “the labor, services, equipment and/or materials” for the Project. (Compl., ¶3 and Exh. A, p. 1:2-22.) This is not sufficient to allege a cause of action for foreclosure of mechanic’s lien.

Nor has Plaintiff filed an opposition to the Motion demonstrating that leave to amend should be granted, as is its burden. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) 

Conclusion

Therefore, Defendant Doris Anderson’s Motion for Judgment on the Pleadings is GRANTED.

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

Moving party to give notice.