John Bryan, Junior v. Geico Ins., 19CV-0028
Hearing: Defendant James McKiernan’s Motion for Judgment on the Pleadings;

Motion to Compel Discovery

Date: August 15, 2019
Plaintiff John T. Bryan, Jr. (“Plaintiff”) filed this action on January 17, 2019. Plaintiff’s
complaint alleges three causes of action arising from an injury that Plaintiff allegedly suffered,
on November 3, 2016, wherein Plaintiff, as a pedestrian, was struck by a vehicle. Plaintiff’s first
cause of action is pleaded against James McKiernan Lawyers, his second cause of action is
pleaded against Geico Insurance Company, and his third cause of action is pleaded against
Pasadena Hospital Association, Ltd., sued as Huntington Memorial Hospital.
James McKiernan, individually and dba James McKiernan Lawyers (“McKiernan”) demurred to
the first cause of action in Plaintiff’s complaint, which is the only cause of action pleaded against
McKiernan, on the grounds that it was barred by the statute of limitations. The Court overruled
that demurrer as the complaint was not barred on its face.
McKiernan had now filed a motion for judgment on the pleadings, and a motion to compel
discovery. The motions were served on Plaintiff but no oppositions are on file.

Motion for Judgment on the Pleadings

McKiernan moves for judgment on the pleadings on the grounds that the complaint does not
sufficiently plead a claim for breach of contract, and that the alleged claim for legal malpractice
is barred by the statute of limitations.1
The grounds for a motion for judgment on the pleadings must appear on the face of the
challenged pleading or be based on facts which the court may judicially notice. (Code Civ.
Proc., § 438(d).)
The Court agrees that Plaintiff fails to state a cause of action for breach of contract. Plaintiff
fails to allege if the contract was oral or written, that Plaintiff performed under the contract, or
any of the material terms of the contract. McKiernan’s motion for judgment on the pleadings is
granted as to Plaintiff’s claim for breach of contract, with leave to amend.
As to McKiernan’s argument that the legal malpractice cause of action is barred by the statute of
limitations, McKiernan argues simply that Plaintiff has a duty to” plead around” the statute of
limitations, and he has failed to do so. McKiernan cites no authority in support of his argument.
1
McKiernan’s notice of motion also argues that the first cause of action is uncertain and unintelligible, and cites
Code of Civil Procedure section 430.10(f). However, that statutory section governs demurrers. McKiernan
provides no authority to grant a motion for judgment on the pleadings on grounds of uncertainty.

2
McKiernan’s motion attaches two letters from 2017 and 2018 as exhibits. McKiernan fails to
reference these exhibits anywhere in his brief, but presumably they were included to support his
argument that this claim is barred. However, as set forth above, the Court may only consider
matters on the face of the pleading or that may be judicially noticed. The Court may not take
judicial notice of the 2017 and 2018 letters, and they may not be considered in deciding the
motion.
Moreover, a statutory motion for judgment on the pleadings does not lie on grounds previously
raised by demurrer unless there has been a material change in applicable case law or statute since
the demurrer was overruled. (Code Civ. Proc., § 438(g)(1).) Whether the motion is considered a
statutory or non-statutory motion, McKiernan has provided no authority that changes the Court’s
ruling on demurrer. If McKiernan wishes to submit evidence to show that the claim is barred, he
must file a motion that allows such a submission, such as a motion for summary judgment.
McKiernan’s motion for judgment on the pleadings is denied as to the claim for legal
malpractice.

Conclusion

McKiernan’s motion for judgment on the pleadings is granted with leave to amend as to
Plaintiff’s claim for breach of contract, and denied as to Plaintiff’s claim for legal malpractice.
Plaintiff shall have 30 days from service of notice of this order to file his amended pleading.

Motion to Compel Discovery

On May 24, 2019, McKiernan served discovery on Plaintiff including form interrogatories,
special interrogatories, requests for admission, requests for production, and a notice of
deposition. Responses to the discovery were due on June 28, 2019, and no responses were
received. (Hayes Decl., ¶¶ 4-7.) Plaintiff did not appear at his noticed June 10, 2019 deposition.
(Hayes Decl., ¶ 8; Exh. 3.)
McKiernan moves here to compel Plaintiff to serve verified responses to the discovery, without
objections, and to compel Plaintiff to appear at a deposition. McKiernan further requests $1,365

in monetary sanctions, based on two hours at $400 per hour, the cost of the notice of non-
appearance at the deposition in the amount of $500, and the $65 in costs for filing the motion.

Plaintiff failed to respond to discovery and has waived all objections, and failed to appear at his
noticed deposition. (Code Civ. Proc., §§ 2033.280(a); 2033.290(a); 2031.300(a).2
)

2
The Court notes that the statutes cited by McKiernan in his brief are incorrect; sections 2030(h), 2030(k) and
2023 do not exist. The Court further notes that McKiernan served more than 35 requests for admission without
a supporting declaration, however Plaintiff has waived that objection by failing to respond. (Code Civ. Proc.,
2033.030(a-b); 2033.280(a).)

3
McKiernan’s motion is granted. Plaintiff shall serve verified responses, without objections, to
the discovery within 30 days of notice of this order. Plaintiff is further compelled to appear at
deposition and present testimony. Parties to come prepared to discuss dates for the deposition.
McKiernan is awarded $1,365 in monetary sanctions against Plaintiff. (Code Civ. Proc., §
2023.010.)