Judge: Richard Y. Lee, Case: 30-2022-01261188, Date: 2022-09-22 Tentative Ruling

Defendant General Motors LLC (“GM”) seeks an order grating GM’s Motion for Judgment on the Pleadings as to Plaintiff’s First, Second and Third Causes of Action in the Complaint.

Pursuant to Code Civ. Proc. §1013b(b), proof of electronic service “shall” include:

“(1) The electronic service address and the residence or business address of the person making the electronic service.

“(2) The date of electronic service.

“(3) The name and electronic service address of the person served.

“(4) A statement that the document was served electronically.”

[Code Civ. Proc. § 1013b(b)(1)-(4).]

Initially, in this instance, it is unclear whether the Motion for Judgment on the Pleading was served by mail or electronic service. The Proof of Service indicates the document was served by “placing” a “true copy thereof enclosed in a sealed envelope”  and thereafter lists Plaintiff’s counsel’s address. However, Defendant has checked the box designating service by e-mail.

To the extent the document was served by e-mail, Moving Party failed to include in the Proof of Service the electronic service address of the person making the electronic service, or the service address of the person served, in violation of Code Civ. Proc. §1013b(b)(1),(3) as set forth above.

Additionally, before filing a statutory motion for judgment on the pleadings, moving party's counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading subject to the judgment on the pleadings motion “for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” [Code Civ. Proc. §439(a).]

Here, the Declaration of Attorney Valencia states, “Prior to filing GM’s Motion for Judgment on the Pleadings, this office attempted to meet and confer with Plaintiff’s counsel in an attempt to discuss the issues we had with Plaintiff’s Complaint, but unfortunately, were unsuccessful in our attempts.” [Declaration of Jesse Valencia ¶2.] However, as phrased, it is unclear whether an in person or telephonic meet and confer actually took place.

Therefore, given the defect in the proof of service, the motion is DENIED without prejudice and counsel is reminded to fully comply with Code Civ. Proc. §439 prior to re-filing the motion.

Moving party to give notice.