Judge: Michael P. Linfield, Case: 21STCV35467, Date: 2022-12-08 Tentative Ruling

Case Number: 21STCV35467    Hearing Date: December 8, 2022    Dept: 34

SUBJECT:         Motion for Judgment on the Pleadings

Moving Party:  Plaintiff Suzanne Porush

Resp. Party:    Defendant Jeffrey Sakson as trustee of the Sakson Family Trust

Plaintiff’s Motion for Judgment on the Pleadings is DENIED.

BACKGROUND:

On September 27, 2021, Plaintiff Suzanne Porush filed her Complaint for Damages against Defendants Dean Sherry, Paul Colacino, Dennis Sakson, and Duke Property Management, Inc. (“DPMI”) on various causes of action related to repeated instances of mold in Plaintiff’s home which led to a collapse of the home’s ceiling.

On December 30, 2021, Plaintiff filed her First Amended Complaint (FAC). The FAC included the same original Defendants, as well as Defendant Jeffrey Sakson as Trustee of the Sakson Family Trust (“Defendant Sakson”).

On January 14, 2022, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendants Sherry and Colacino from the FAC.

On February 14, 2022, Defendants Sakson and DPMI filed their Cross-Complaint against Cross-Defendant DC Danco Air Conditioning Co. Defendants Sakson and DPMI concurrently filed their respective Answers to the FAC.

On August 9, 2022, Plaintiff filed her Motion for Judgment on the Pleadings as to Defendant Jeffrey Sakson’s Answer. Plaintiff concurrently filed: (1) Declaration of Joshua Greer; (2) Request for Judicial Notice; and (3) Proposed Order.

On November 15, 2022, by request of Plaintiff, the Clerk’s Office dismissed without prejudice Defendant Dennis Sakson from the First Amended Complaint.

On November 23, 2022, Defendant Sakson filed his Opposition to the Motion for Judgment on the Pleadings.

Plaintiff has not filed a reply or other response to the Opposition.

ANALYSIS:

I.           Request for Judicial Notice

Defendant Sakson requests that the Court take judicial notice of the following exhibits:

(1)       Plaintiff’s First Amended Complaint; and

(2)       Defendant’s Answer to the First Amended Complaint.

Judicial notice is DENIED as superfluous. Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).) 

II.        Motion for Judgment on the Pleadings

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. Exch. v. Super. Ct. (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. (Id.) “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 Med. 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

Plaintiff moves the Court to grant it judgment on the pleadings as to all 25 affirmative defenses listed in Defendant Sakson’s Answer to the First Amended Complaint on the grounds that Defendant fails to state facts sufficient” for each of the affirmative defenses. (Motion, unlisted first pages 2–4.)

This motion for judgment on the pleadings is an example of an all-too-common practice in the Superior Court — that of counsel routinely filing a demurrer or motion for judgment on the pleadings that could not possibly dispose of the case nor advance their party’s interests. This usually happens when defense counsel is demurring to a complaint, which, while perfectly intelligible, contains some technical deficiencies.

More and more – as is the case here – the Court is now seeing plaintiffs demurring to an answer or filing a motion for judgment on the pleadings to an answer.

All counsel know what is happening: Defendant files an answer, and without any thought to the specific case at issue, cuts-and-pastes numerous “affirmative defenses.” In this case, Defendant has asserted 25 affirmative defenses. Plaintiff in turn cuts-and-pastes a demurrer or motion for judgment on the pleadings, arguing that Defendant has not stated the facts underlying each affirmative defense.

Nothing would be gained were the Court to grant this motion. As Plaintiff’s Counsel is fully aware, the Court would be required to give Defendant leave to amend. All that would be achieved is the expenditure of at least another dozen hours of attorneys’ time. In addition to increasing the attorney’s fees on both sides, this would result in preventing the case from being at issue for another three months. Such delay does not serve the interests of justice.

        “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475; Cal. Const., Art. VI, § 13.)

The Court DENIES Plaintiff’s Motion for Judgment on the Pleadings.

III.     Conclusion

Plaintiff’s Motion for Judgment on the Pleadings is DENIED.