Judge: Michael P. Linfield, Case: 20STCV38469, Date: 2022-09-19 Tentative Ruling

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Case Number: 20STCV38469    Hearing Date: September 19, 2022    Dept: 34

SUBJECT:                 Defendant Dan Devries’ Motion for Judgment on the Pleadings

Moving Party:          Defendant Dan Devries

Resp. Party:             Plaintiff Matevosian Enterprises, Inc., dba Nationwide Distributor                        

TENTATIVE RULING

Defendant Dan Devries’ Motion for Judgment on the Pleadings is DENIED.

I.           BACKGROUND

On October 7, 2020, Plaintiff Matevosian Enterprises, Inc. dba Nationwide Distributor, filed a complaint against Defendants MassGenie, Inc., Bruce Watanabe, Sam Kim, and Dan Devries, alleging the following causes of action:

1.           Breach of Contract;

2.           Breach of the Covenant of Good Faith and Fair Dealing;

3.           Violation of Business and Professions Code § 17200;

4.           Fraud; and

5.           Intentional Interference with Contractual Relations

On January 20, 2021, default was entered against Defendants MassGenie, Inc., Bruce Watanabe, Dan Devries, and Sam Kim. (Minute Order, April 5, 2021, p. 1.)

On August 30, 2021, the Court granted Defendants MassGenie, Inc., Bruce Watanabe, Sam Kim, and Dan Devries motion to set aside default and default judgment, "conditioned on the payment of Plaintiff's attorney's fees in the amount of $16,955.24 (Minute Order, August 30, 2021, p. 1.)

On April 22, 2022, Howard & Howard Attorneys, PLLC filed four motions to be relieved as counsel.

On May 13, 2022, the Court denied Howard & Howard Attorneys, PLLC’s four motions to be relieved as counsel.

On May 19, 2022 and May 20, 2022, Robert L. Rosenthal, and Steven E. Kish, III of Howard and Howard Attorneys PLLC filed four motions to be relieved as counsel. The motions are unopposed.

On June 14, 2022, the Court denied Robert L. Rosenthal, and Steven E. Kish, III of Howard and Howard Attorneys PLLC's Motions to Be Relieved as Counsel for MassGenie, Inc., Sam Kim, Bruce Watanabe, and David Devries.

On August 25, 2022, Defendant Dan Devries (“Devries”) moved the Court “for a Judgment on the Pleadings pursuant to California Code of Civil Procedure § 43 8, as the entire Complaint filed by Plaintiff, MATEVOSIAN ENTERPRISES, INC. dba NATIONWIDE DISTRIBUTOR ("Plaintiff'), fails to state facts sufficient to constitute a cause of action against De Vries.” (Motion for Judgment on the Pleadings (“MJOP”), p. 1:27—2:2.)

On September 8, 2022, Plaintiff Matevosian Enterprises, Inc., dba Nationwide Distributor, a California corporation (“Matevosian”) opposed Devries’ motion for judgment on the pleadings.

On September 14, 2022, Devries replied to Matevosian’s  opposition.

II.        ANALYSIS

A.          Legal Standard

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Ibid.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) 

Because a motion for judgment on the pleadings performs the same function as a general demurrer, the procedures in responding to demurrers similarly apply to motions for judgment on the pleadings. (See e.g., Evinger v. Moran (1910) 14 Cal.App. 328, 329.)  

B.          Discussion

1.           Timeliness of Motion

Matevosian argues that Devries motion for judgment on the pleadings is a statutory motion made pursuant to CCP § 438(c), and that the motion is untimely under CCP § 438(e). CCP § 438(e) states that a motion for judgment on the pleadings may not be made under CCP § 438 “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.”

The initial trial date was scheduled for May 31, 2022 and the Final Status Conference was scheduled for May 17, 2022 at a Case Management Conference held on September 28, 2021. (Minute Order, September 28, 2021, p. 1.) Because the instant motion was filed on August 25, 2022, the Court finds that it is untimely under CCP § 438(e).

Devries notes that the Court should regard the current motion as a common law motion for judgment on the pleadings to avoid the judicial inefficiency in examining the present motion a second time, undergirded by different authority. (Reply, p. 2:3-14.) This argument is not persuasive. Trial is set in this matter for October 18, 2022, twenty-nine days from the date of this hearing. Devries has had ample time to address any possible deficiencies he noticed in Matevosian’s Complaint, and his eleventh-hour motion chose statutory, not common law authority. Matevosian properly notes that under the constraints of the statute Devries chose for his motion for judgment on the pleadings, his motion is untimely. The Court agrees.

III.     CONCLUSION

Defendant Dan Devries’ Motion for Judgment on the Pleadings is DENIED.