2017-00214983-CL-CL

LVNV Funding, LLC vs. Martha Harding

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Brodbeck, Lori

Plaintiff LVNV Funding, LLC’s unopposed motion for judgment on the pleadings is granted without leave to amend.

Plaintiff’s request for judicial notice is granted.

This is a consumer credit card action in which Plaintiff alleges common counts including open book and account stated.

On January 5, 2018, the Court granted Plaintiff’s unopposed motion to have its requests for admissions deemed admitted.

When the moving party is the plaintiff, there is only one ground for a motion for judgment on the pleadings: “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (C.C.P. 438(c)(1)(A).) The Court

must disregard all controverted allegations in the complaint and accept all facts properly pleaded in the answer. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379-1380.) “A motion by plaintiff for judgment on the pleadings is in the nature of a general demurrer, and the motion must be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense.” ( MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-813.) The Court assumes the truth of all material allegations in the challenged pleading no matter how improbable. ( Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397.) Further, the court will take judicial notice of records, such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer [or motion for judgment on the pleadings] (Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482; Morris v. Harbor Boat Bldg. Co. (1952) 112 C.A.2d 882, 886; Columbia Cas. Co. v. Northwestern. Nat. Ins. Co. (1991) 231 C.A.3d 457, 468), Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604- 605.) Thus, on a motion for judgment on the pleadings, the Court may extend consideration to matters that are subject to judicial notice; in doing so, the Court performs essentially the same task as ruling on a general demurrer. (Smiley v. Citibank (1995) 11 C.4th 138, 146.) “(A) deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. [ Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983; Weil & Brown, Cal. Civil Pro. Before Trial (Rutter Guide, 2015 Update) § 8:1375.1.)

Here, the complaint properly alleges the requisite allegations for common counts. Further as a result of Plaintiff’s motion to deem matter admitted being granted, Defendant was deemed to have admitted that she had a credit card issued by Plaintiff, that the last payment was made prior to May 5, 2016, that she received billing statements, that she did not object to any amounts on the statements and that she owed the principal sum of $1,641.21 and that she had no defense to the action. Plaintiff has since acknowledged a $400 credit.

Based upon these admissions, the motion for judgment on the pleadings is granted in favor of moving party plaintiff, without leave to amend.

The Court will sign the proposed judgment and order. Plaintiff may seek costs pursuant to the Rules of Court after judgment is entered.