Judge: Walter P. Schwarm, Case: 30-2021-01183151, Date: 2022-10-04 Tentative Ruling
Cross-Complainant (Data Mortgage, Inc.) Motion for Judgment on the Pleadings (Motion), filed on 5-18-22 under ROA No. 149, is GRANTED with leave to amend.
The court GRANTS Cross-Complainant’s Request for Judicial Notice, filed on 5-18-22 under ROA No. 143, pursuant to Evidence Code section 452, subdivision (h), as to the existence of Exhibits, 1, 2, and 3. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.)
The court GRANTS Cross-Defendant’s (LoanCare, LLC) Request for Judicial Notice, filed on 9-19-22 under ROA No. 172, pursuant to Evidence Code section 452, subdivision (h), as to the existence of Exhibit A. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1570.)
Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Eckler v. Neutragena Corporation (2015) 238 Cal.App.4th 433, 439 (Eckler), states, “ ‘A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint.’ [Citation.] As with a demurrer, ‘[t]he grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.’ [Citation.]” “A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.] In addition, it gives them a liberal construction.” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan).)
Code of Civil Procedure section 439 states in part, “(a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings 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. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading. [¶] (1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to judgment and identify with legal support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the alternative, how the pleading could be amended to cure any claims it is subject to judgment. [¶] (2) The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed. If the parties are unable to meet and confer by that time, the moving party shall be granted an automatic 30-day extension of time within which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion for judgment on the pleadings was previously filed, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause. [¶] (3) The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: [¶] (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. [¶] (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. [¶] (4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings. . . .”
Code of Civil Procedure section 431.30, subdivision (b), provides, “Code of Civil Procedure section 431.30, subdivision (b), states, The answer to a complaint shall contain: [¶] (1) The general or specific denial of the material allegations of the complaint controverted by the defendant. [¶] (2) A statement of any new matter constituting a defense.”
South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, states, “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action. [Citation.]” “There are, however, certain important differences between these two kinds of demurrer. An important difference is that in the case of a demurrer to the answer, as distinguished from a demurrer to the complaint, the defect in question need not appear on the face of the answer. The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. [Citations.] This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. [Citations.] Another rule, particularly applicable to the case of a demurrer to the answer, is that each so-called defense must be considered separately without regard to any other defense. [Citations.] Accordingly, a ‘separately stated defense or counterclaim which is sufficient in form and substance when viewed in isolation does not become insufficient when, upon looking at the answer as a whole, that defense or counterclaim appears inconsistent with or repugnant to other parts of the answer.’ [Citations.] Therefore, if one of the defenses or counterclaims is free from the objections urged by demurrer, then a demurrer to the entire answer must be overruled. [Citations.] Furthermore, because a defendant is entitled to plead inconsistent defenses, where one separate answer denies all of the allegations of the plaintiff's complaint, the plaintiff is not excused from making proof of the material facts because of admissions of some or all of them found in other and separate answers of the defendant. [Citations.]” (Id., at pp. 733-734; Footnote 6 omitted.)
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239-240 (Harris), explains, “It has long been held that ‘if the onus of proof is thrown upon the defendant, the matter to be proved by him is new matter.’ [Citations.].” (Italics in Harris.)
The Motion seeks a judgment on the pleadings as to first through thirteenth affirmative defenses contained in Cross-Defendant’s (LoanCare, LLC) Answer to First Amended Cross-Complaint (filed on 2-8-22 under ROA No. 112).
Here, Cross-Complainant did not meet and confer as required by Code of Civil Procedure section 439, subdivision (a). It appears that a meet and confer would have resolved this Motion because Cross-Defendant states, “LoanCare LLC respectfully requests leave to amend its Answer to set forth facts in support of its affirmative defenses as set forth in its First Supplemental Response to Form Interrogatories, Set One-Supplemental. As set forth below, LoanCare has shown that its Answer can be amended to state a defense, and is therefore entitled to leave to amend under applicable law.” (Cross-Defendant’s Opposition to Motion for Judgment on the Pleadings (Opposition) filed on 9-19-22 under ROA No. 170; 4:18-21 (Italics in Opposition.).) Cross-Defendant does not contend that the Answer states sufficient facts. Rather, Cross-Defendant asserts that it can state sufficient facts if granted leave to amend.
Therefore, the court GRANTS Cross-Complainant (Data Mortgage, Inc.) Motion for Judgment on the Pleadings, filed on 5-18-22 under ROA No. 149, with 14 days leave to amend from the date of service of the notice of the court’s ruling. (Eckler, supra, 238 Cal.App.4th at p. 439.)
Cross-Complainant to give notice.