Judge: Robert B. Broadbelt, Case: BC625462, Date: 2022-08-10 Tentative Ruling
Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.
Case Number: BC625462 Hearing Date: August 10, 2022 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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BC625462 |
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August
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[Tentative]
Order RE: defendants’ motion for judgment on the
pleadings |
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MOVING PARTIES:
Defendants Andrea Breuer, Law
Offices of Ilene Kurtzman, and Ilene Kurtzman
RESPONDING PARTY: Unopposed
Motion for Judgment on the Pleadings
The court
considered the moving papers filed in connection with this motion. No opposition papers were filed.
Plaintiff Youval Ziv and VACA Partnership filed
this action against defendants Andrea Breuer, Law Offices of Ilene Kurtzman,
and Ilene Kurtzman (“Defendants”) on July 29, 2016. Plaintiff Youval Ziv (“Plaintiff”) filed the
operative First Amended Complaint against Defendants on May 2, 2017, asserting
three causes of action for (1) negligence, (2) breach of contract, and (3) breach
of fiduciary duty.
On June 22, 2022, the court granted
Defendants’ motion to deem requests for admissions admitted and ordered that
the truth of the matters specified in Defendants’ Request for Admissions, Set
One, be deemed admitted.
Defendants now move for judgment on the
pleadings on the ground that Plaintiff’s admissions have rendered his complaint
meritless.
JUDICIAL NOTICE
The court grants Defendants’ request for
judicial notice. (Evid. Code § 452,
subd. (d).) In granting Defendants’
request, the court takes judicial notice of Plaintiff’s responses to
Defendants’ requests for admission, as attached to Defendants’ March 28, 2022
motion, all of which were deemed admitted by the court on June 22, 2022. (RJN, Exs. 8, 7; Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 [“The court
will take judicial notice of records such as admissions, answers to
interrogatories, affidavits, and the like, when considering a demurrer, only
where they contain statements of the plaintiff or his agent which are
inconsistent with the allegations of the pleading before the court”].)
DISCUSSION
Defendants Andrea Breuer, Law Offices
of Ilene Kurtzman, and Ilene Kurtzman move the
court for an order granting their motion for judgment on the pleadings without
leave to amend on the ground that Plaintiff’s admissions have rendered his
complaint meritless. The court considers
whether the First Amended Complaint’s allegations may be disregarded as
conflicting with Plaintiff’s judicially noticed discovery responses. (Bockrath v. Aldrich Chemical Co. (1999)
21 Cal.4th 71, 83; Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th
986, 989-990 [in considering a motion for judgment on the pleadings, the court
may consider matters that are judicially noticed, “including a party’s
admissions or concessions which cannot reasonably be controverted”].)
The court grants Defendants’ motion for judgment on the pleadings as
to Plaintiff’s first cause of action for negligence because it fails to state
facts sufficient to constitute a cause of action against Defendants since Plaintiff
has admitted that (1) Plaintiff suffered no damages as a result of Defendants’
representation of Plaintiff in the underlying lawsuit or underlying appeal, and
(2) Plaintiff has no evidence that, but for Defendants negligence, Plaintiff
would have received a more favorable result in the underlying lawsuit. (RJN Ex. 1 to Ex. 8, p. 3, Request for Admission
Nos. 5-7; RJN Ex. 7.) Thus, the allegations
regarding damages and causation in Plaintiff’s First Amended Complaint may be disregarded
(FAC ¶¶ 32-33), thereby establishing that Plaintiff has failed to state facts
sufficient to constitute a cause of action for failing to allege the elements
of damages and causation. (Code Civ.
Proc., § 438, subd. (c)(1)(B)(ii); Carlsen v. Koivumaki (2014) 227
Cal.App.4th 879, 892 [setting forth elements for negligence].)
The court grants Defendants’ motion for judgment on the pleadings as
to Plaintiff’s second cause of action for breach of contract because it fails
to state facts sufficient to constitute a cause of action since Plaintiff has
admitted that Plaintiff suffered no damages as a result of Defendants’ representation
of Plaintiff in the underlying lawsuit or underlying appeal. (RJN Ex. 1 to Ex. 8, p. 3, Requests for
Admission Nos. 5-6; RJN Ex. 7.) Thus,
the allegations regarding the element of damages in Plaintiff’s First Amended
Complaint may be disregarded (FAC ¶¶ 37-38), thereby establishing that
Plaintiff has failed to state facts sufficient to constitute a cause of action
for failing to allege the element of damages.
(Code Civ. Proc., § 438, subd. (c)(1)(B)(ii); Oasis West Realty, LLC
v. Goldman (2011) 51 Cal.4th 811, 821 [setting forth elements for breach of
contract cause of action].)
The court grants Defendants’ motion for judgment on the pleadings as
to Plaintiff’s third cause of action for breach of fiduciary duty because it
fails to state facts sufficient to constitute a cause of action against
Defendants since Plaintiff has admitted that Plaintiff suffered no damages as a
result of Defendants’ representation of Plaintiff in the underlying lawsuit or
underlying appeal. (RJN Ex. 1 to Ex. 8,
p. 3, Requests for Admission Nos. 5-6; RJN Ex. 7.) Thus, the allegations regarding the element
of damages may be disregarded (FAC ¶¶ 46-47), thereby establishing that Plaintiff
has failed to state facts sufficient to constitute a cause of action for breach
of the fiduciary duty for failing to allege the element of damages. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii);
Tribeca Companies, LLC v. First American Title Ins. Co. (2015) 239
Cal.App.4th 1088, 1114 [setting forth elements for cause of action for breach
of fiduciary duty].)
The burden is on the plaintiff “to
articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn.,
Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show
in what manner he can amend his complaint and how that amendment will change
the legal effect of his pleading.” (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 349.) The court finds that, by failing to oppose
this motion, Plaintiff has failed to articulate how he could amend the first,
second, and third causes of action. Therefore, the court grants Defendants’ motion
for judgment on the pleadings without leave to amend.
ORDER
The court grants defendants Andrea Breuer, Law Offices of Ilene Kurtzman,
and Ilene Kurtzman’s motion for judgment on the pleadings as to plaintiff
Youval Ziv’s first, second, and third causes of action without leave to
amend. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)
Because the court has granted Defendants’
motion for judgment on the pleadings without leave to amend as to each cause of
action alleged by Plaintiff in his First Amended Complaint, the court orders
this action is dismissed.
The court orders defendants Andrea Breuer, Law Offices of
Ilene Kurtzman, and Ilene Kurtzman to give notice of this order.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court