Judge: Steven A. Ellis, Case: 23STCV26901, Date: 2024-01-22 Tentative Ruling

Case Number: 23STCV26901    Hearing Date: February 22, 2024    Dept: 29

Motion for Judgment on the Pleadings, filed by Plaintiffs Marisa Johnston and Greg Johnston.

Tentative

The motion is granted, with leave to amend.

Background

This matter arises out of an incident on June 18, 2022, in which Plaintiff Marissa Johnston was seriously injured after the bicycle she was riding struck a deep pothole on North Vermont Avenue in or near Griffith Park in Los Angeles.  On November 1, 2023, Plaintiffs Marissa Johnston and Greg Johnston (“Plaintiffs”) filed the Complaint in this action against Defendant City of Los Angeles (“Defendant”) and Does 1 through 50, alleging causes of action for a dangerous condition of government property under Government Code section 835 and for loss of consortium. Plaintiffs verified their complaint.

On December 6, 2023, Defendant filed its Answer to the Complaint.  The Answer contains a general denial and affirmative defenses.

On December 28, 2023, Plaintiffs filed this Motion for Judgment on the Pleadings as to Defendant’s Answer. Defendant filed its opposition on January 11, 2024.

The matter came on for hearing on January 22.  In light of the Court’s concerns about the timeliness of the motion and the opposition, the Court continued the hearing to February 22 and granted leave to Plaintiff to file a reply.  No reply was filed.

Judicial Notice

“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.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) “In addition to the facts alleged in the complaint, the court may consider matters which may be judicially noticed, including court records.” (Barker v. Hull (1987) 191 Cal. App. 3d 221, 224.)

Defendant requests that the Court take judicial notice of the Complaint and Answer.

The Court GRANTS Defendant’s Request for Judicial Notice.

Meet and Confer Declaration

A motion for judgment on the pleadings must be accompanied by a declaration that states either that the parties met and conferred or that the non-moving party failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 439, subd. (a)(3).) Plaintiff’s counsel has submitted a declaration that satisfies the statutory requirements.  (Arutyunyan Decl., ¶¶ 3-4.)

Legal Standard

A motion for judgment on the pleadings is the functional equivalent to a general demurrer.  (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198).  Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). Any defects must either appear on the face of the pleading, or else be taken by judicial notice.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22).  The parties’ ability to prove their respective claims is of no concern.  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.)  Although the Court must accept the allegations of the complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions, speculation, or allegations contrary to law or [judicially noticed] facts…” (Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc. (2006) 138 Cal.App.4th 1215, 1219-20).

Discussion

Plaintiffs filed a verified Complaint. 

A general denial, such as the one contained in the Answer here, is proper only where the complaint is unverified.  (Code Civ. Proc., § 431.30, subd.(d).)  To respond to a verified complaint, the denial must “be made positively or according to the information and belief of the defendant.”  (Ibid.)  “The denials of the allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all of the allegations not so admitted; or by denial of certain allegations upon information and belief, or for lack of sufficient information or belief, with a general denial of all allegations not so denied or expressly admitted.”  (Id., subd. (f).)

Plaintiffs’ motion is not “frivolous,” as Defendant contends.  It is meritorious and is GRANTED.

Defendant is given leave to amend.

Conclusion

The Court GRANTS Plaintiffs’ Motion for Judgment on the Pleadings.

The Court GRANTS Defendant leave to amend its answer within 10 days of notice.

Plaintiffs to give notice.