Judge: Mark E. Windham, Case: 22STLC03332, Date: 2022-12-20 Tentative Ruling
Case Number: 22STLC03332 Hearing Date: December 20, 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 WITHOUT LEAVE TO AMEND.
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 and
for Plaintiff to address its pro per status. (Minute Order, 07/13/22.)
Defendant filed a meet and confer declaration on September 30, 2022.
On December 8,
2022, Plaintiff filed a substitution of attorney showing that it had obtained
legal counsel. Plaintiff also filed an opposition to the Motion for Judgment on
the Pleadings on December 13, 2022. When the matter came for hearing on
December 14, 2022, it was continued again to December 20, 2022 due to technical
difficulties that prevented Plaintiff’s counsel’s participation. (Minute Order,
12/14/22.)
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.
Plaintiff’s
opposition was filed and served the day before the hearing on December 14,
2022. The Court would be well within its authority to disregard such an
untimely filing. (See Cal. Rules of Court, Rule 3.1300(d).) Even if the Court
were to consider the opposition, Plaintiff offers no analysis of the
allegations in the Complaint to show that it states a cause of action for
foreclosure of mechanic’s lien. (Opp., p. 3:5-13.) Finally, the opposition does
not demonstrate that leave to amend the Complaint should be granted, as is Plaintiff’s
burden. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)
Conclusion
Therefore,
Defendant Doris Anderson’s Motion for Judgment on the Pleadings is GRANTED
WITHOUT LEAVE TO AMEND.
DEFENDANT
IS TO FILE A PROPOSED JUDGMENT WITHIN 10 DAYS OF THIS ORDER.
Moving party to give notice.