2011-00114913-CU-DF

Thomas J. Radtke vs. Mary Ellen Blevins

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Hughes, Chad

Defendants’ Motion for Judgment on the Pleadings is granted/denied as follows:

Plaintiff alleges a 1st cause of action for Intentional Tort (libel), a 2nd cause of action
for Intentional Tort (defamation), and a 3rd cause of action for libel and slander that
allegedly occurred on October 10, 2010.

A motion for judgment on the pleadings may be directed either at the entire complaint
or answer, or at any cause of action or affirmative defense set forth in the pleadings.
(C.C.P. 438(c)(2). Like a demurrer, a motion for judgment on the pleadings is confined
to the face of the pleading under attack, and the plaintiff’s allegations are accepted as
true. (See C.C.P. 438(d); Colberg v. California (1967) 67 C.2d 408, 412.)

Defendant Robyn Holler-Davis’ Motion for Judgment on the Pleadings is denied.
Defendant contends that the court “no jurisdiction” over her because of the discharge
of her debts in Bankruptcy. Defendant has not filed a Request for Judicial Notice or
Declaration under penalty of perjury, and even if she had, the court does not take
judicial notice of the truth of matters set forth in the bankruptcy documents nor the
legal effect of those documents on these proceedings.

Defendant “Doc” Blevins Motion for Judgment on the Pleadings is granted. Plaintiff’s
Complaint alleges no facts to support the alleged causes of action as to this defendant.
Doc Blevins is married to Mary Ellen Blevins. Mary Ellen Blevins is alleged to have
defamed plaintiff by sending to plaintiff’s former wife a letter containing falsehoods
during their divorce. No facts concerning Doc Blevins involvement have been alleged.
In opposition, plaintiff does not cure the defects, but states that “it is up to the Jury to
determine whether Doc Blevins knew what his wife, Defendant Mary Ellen Blevins,
was doing when she wrote her letter and committed the other defamations.” The fact
that Doc Blevins may have known what his wife was doing does not support individual
liability for Doc Blevins. No leave to amend is granted.

Defendant Mary Ellen Blevins’ Motion for Judgment on the Pleadings is denied.
Plaintiff alleges that the defamation published to his former wife was made on August
30, 2010. He alleges a second defamation occurred on March 25, 2011.

Defendant contends that on the face of the Complaint, the August 30, 2010 defamation
is barred by the one year statute of limitations. The Complaint was not filed until
December 2, 2011. As to the alleged defamation that took place on March 25, 2011,
defendant contends that no supporting facts regarding the content of alleged
statements made to doctors is set forth. However, the Answer filed by Mary Ellen Blevins on February 7, 2012, does not raise
the Statute of Limitations as a defense. The only defenses asserted in the Answer are
truth, consent, and qualified privilege.

Plaintiff’s opposition does not address the deficiency of the defamation that occurred
on March 25, 2011. However because the court does not adjudicate claims within a
cause of action on a motion for judgment on the pleadings, the motion for judgment on
the pleadings is denied.

The trial date of May 14, 2014 remains.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.