Laura Dewey v. Tarek Suleimanagich
Case No: 17CV03571
Hearing Date: Mon Apr 29, 2019 9:30

Nature of Proceedings: Motion for Judgment on the Pleadings and Extension of Time

Laura Dewey v. Tarek Suleimanagich (Judge Sterne)

Case No. 17CV03571

Hearing Date: April 29, 2019

HEARING: Motion of Defendant for Judgment on the Pleadings and for Extension of Time to Bring Motion

ATTORNEYS:

For Plaintiff Laura Dewey: Self-represented attorney

For Defendant Tarek Suleimanagich: Self-represented

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant Tarek Suleimanagich for judgment on the pleadings is denied as untimely.

Background:

Plaintiff Laura Dewey filed her original complaint in this action against defendant Tarek Suleimanagich on August 14, 2017.

The complaint asserts two causes of action against Suleimanagich: (1) breach of written contract; and (2) common counts for account stated and for services rendered. The contract cause of action alleges that a written contract was made between the parties on March 12, 2013, and was breached by Suleimanagich on August 15, 2013, by his refusing to pay amounts owning under the contract. (Complaint, ¶¶ BC-1, BC-2.)

On April 17, 2018, Suleimanagich filed his demurrer to the complaint. The demurrer asserted, among other things, that the written agreement is not attached to the complaint, that the causes of action lack specificity and are uncertain, and that the causes of action are barred by the statute of limitations.

On August 6, 2018, the court ordered the demurrer off calendar based upon Suleimanagich’s failure to comply with the mandatory pre-filing requirements of Code of Civil Procedure section 430.41.

On August 29, 2018, Suleimanagich filed his answer to the complaint, generally denying the allegations thereof and asserting 12 affirmative defenses, including the defenses of the statute of limitations and laches.

At a case management conference on September 17, 2018, the court set the initial trial date of March 4, 2019, in its pretrial conference order (“case management conference order”) of that date.

On February 1, 2019, at the request of Suleimanagich, the court continued the trial date to June 3, 2019. The court’s order did not extend any pre-trial deadline based upon the original trial date.

On March 27, 2019, Suleimanagich filed this motion for judgment on the pleadings and for an extension of time to bring this motion.

On April 8, 2019, at the request of Suleimanagich, the court continued the trial date to August 5, 2019, for Suleimanagich to post jury fees. The court expressly determined that discovery is not reopened based upon this continuance and that all deadlines shall be adhered to.

On April 16, 2019, Dewey filed her opposition to the motion, arguing that the “Motion for Judgment on the Pleadings, otherwise known as a Motion for Summary Judgment” does not comply with the timing and procedural requirements of a motion for summary judgment under Code of Civil Procedure section 437c. (Opposition, p. 1.)

Analysis:

Contrary to plaintiff Dewey’s statement in opposition, a motion for judgment on the pleadings is not “otherwise known” as a motion for summary judgment. There are basic differences between a motion for summary judgment and a motion for judgment on the pleadings. “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. [Citations.]

Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) On the other hand, “[t]he purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) These two motions are governed by different statutes and have different procedural requirements. (Compare Code Civ. Proc. § 437c [summary judgment] with § 438 [motion for judgment on the pleadings].) As a result, the procedural requirements for a motion for summary judgment, which are the only procedures discussed in Dewey’s opposition, are irrelevant to this motion for judgment on the pleadings.

Contrary to Suleimanagich’s arguments in reply, the Federal Rules of Civil Procedure have no application to California state court procedure and the same statute cited by Suleimanagich as the basis for the motion (Code Civ. Proc., § 438, cited in Motion, p. 4) governs when a motion for judgment on the pleadings may be made: “No motion [for judgment on the pleadings] may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc., § 438, subd. (e).) Pretrial conference orders were entered in this case on June 11, 2018, July 23, 2018, August 6, 2018, and September 17, 2018 (setting the initial trial date). The initial trial date was set for March 4, 2019. This motion was not filed until March 27, 2019, after the date this matter was initially set for trial. Absent permission from the court, the motion is untimely.

Although the motion requests that it be allowed to be heard “even though it is brought after the initial Trial Setting Conference” (Motion, p. 4), no basis for granting permission is explained or supported. The motion raises the same issues that had been asserted in the demurrer filed on April 17, 2018. There is no explanation of why this pleading motion could not have been brought at a much earlier time.

Moreover, if the court were to address the merits of the motion, the result would not affect the scope of issues for trial. As noted above, a motion for judgment on the pleadings addresses only whether the complaint sufficiently alleges a cause of action. (See also Code Civ. Proc., § 438, subds. (c)(1)(B)(ii), (d).) The complaint does not on its face disclose a statute of limitations defense because the complaint alleges breach of a written contract on August 15, 2013, the complaint was filed on August 14, 2017, and the limitations period for breach of a written contract is four years (Code Civ. Proc., § 337, subd. (1)). The complaint does not on its face disclose a laches defense because, among other things, there is nothing in complaint alleging prejudice or acquiescence. (See Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 362 [“Laches may be raised by demurrer, but only if the complaint shows on its face unreasonable delay plus prejudice or acquiescence.”].) Furthermore, a motion for judgment on the pleadings does not address uncertainty in the complaint (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 151; Dvorsky v. Balkum (1931) 118 Cal.App.364, 367) and any uncertainty in the pleadings should have by this time been resolved by discovery (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616).

The court denies the request for permission to hear this motion for judgment on the pleadings at a time other than permitted by Code of Civil Procedure section 438. The motion is therefore denied as untimely.