Case Name: CHRISTOPHER PRATER v. MARK SANCHEZ
Case No.: 16CV297663

This is a personal injury case brought by plaintiff Christopher Prater (“Plaintiff”) against defendant Mark Sanchez doing business as Sanchez Properties (“Defendant”), who apparently owns and/or operates the property where Plaintiff resides. The operative First Amended Complaint filed November 13, 2016 stated claims for (1) Negligence; (2) Negligence Per Se; (3) Premises Liability; (4) Intentional Negligence, and; (5) “Damages.” Defendant previously filed a demurrer which was sustained without leave to amend as to the second, third and fifth causes of action. Currently before the Court is the motion for judgment on the pleadings (“JOP”) brought by Plaintiff (line 3), opposed by Defendant and Defendant’s motion for protective order requiring Plaintiff to attend and testify at a second session of his deposition and to appoint a referee to supervise the deposition (line 4), unopposed by Plaintiff.

Line 3
Plaintiff’s motion is expressly brought under CCP § 438. (See Notice of Motion at 2:4-7.) A motion for judgment on the pleadings “is equivalent to a belated general demurrer.” (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) Except as provided by statute (CCP §438), the rules governing demurrers apply. The proper timing for a Plaintiff’s JOP motion is set forth in CCP § 438(f)(1): “The motion provided for in this section may be made only after one of the following conditions has occurred: (1) If the moving party is a plaintiff, and the defendant has already filed his or her answer to the complaint and the time for the plaintiff to demur to the answer has expired.” (Court’s emphasis.) The grounds for which a plaintiff may move for JOP are set forth in CCP § 438(c)(1)(A): “If the moving party is a plaintiff, that 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.” This is analogous to a general demurrer to the answer.

As with a demurrer, for purposes of ruling on a Plaintiff’s JOP motion, testing the sufficiency of the answer, all facts well pled in the answer, including denials, are assumed to be true and the Court may not consider extrinsic evidence. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Cloud) [“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. [Citation.]”]; County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32 (Orange) [“In reviewing the trial court’s grant of the motions for judgment on the pleadings under Code of Civil Procedure section 438, subdivision (b)(1), we apply the same rules governing the review of an order sustaining a general demurrer. [Citation.]”]; and Southern California Edison Company v. City of Victorville (2013) 217 Cal.App.4th 218, 227 (SCE) [“ ‘The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.’ [Citation.] ‘[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.’ [Citation.]”])

Plaintiff has not submitted any request for judicial notice. Since the Court may not consider extrinsic evidence in ruling on a JOP motion the Court has not considered the declaration of Plaintiff Christopher Prater submitted “in support of” the JOP motion or the attached exhibit A. “[W]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [internal citations omitted].)

Plaintiff’s JOP motion is DENIED. First and foremost the motion is premature and does not comply with CCP § 438(f)(1). It was filed before Defendant’s Answer to the FAC was filed on July 13, 2017. It is therefore impossible for the motion to perform its function as the equivalent of a general demurrer to an answer. Even if this could be overlooked Plaintiff’s motion has not satisfied the requirement of establishing that each cause of action in his operative pleading, the First Amended Complaint, “states facts sufficient to constitute a cause or causes of action against the defendant,” as required by CCP § 438(c)(1)(A). As the motion was filed prematurely, it does not address the answer or establish that “the answer does not state facts sufficient to constitute a defense to the complaint,” as also required by CCP § 438(c)(1)(A).

Line 4
Defendant’s motion for a protective order requiring Plaintiff to attend a further session of his deposition and to appoint a referee for the limited purpose of supervising the remainder of Plaintiff’s deposition is brought pursuant to CCP §§ 639, 2025.420 and 2025.610(b) (good cause to take second deposition). It is unopposed by Plaintiff.

A party may promptly move for a protective order before, during, or after a deposition. (CCP, § 2025.420(a).) For good cause shown, the court may make any order that justice requires to protect the party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (CCP, § 2025.420(b).) The burden is on the moving party to establish “good cause” for the relief requested. (CCP, § 2025.420(b); Emerson Elec. Co. v. Sup. Ct. (1997) 16 Cal.4th 1101, 1110.)

A motion to appoint a discovery referee may be made pursuant to CCP § 639(a). CCP § 639(a)(5) provides: “When the parties do not consent, the court may, upon the written motion of any party … appoint a referee … [w]hen the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” Discovery referees are not granted lightly and, pursuant to CCP § 639(d), the Court must find that exceptional circumstances require the appointment and specify the individual appointed and the maximum hourly rate that may be charged. Defendant has not identified any candidates for referee, has not submitted a proposed order, seeks to have Plaintiff bear all costs associated with any referee, and seeks monetary sanctions. If it is determined that the “matter is appropriate for reference but one party is not reasonably able to finance private dispute resolution, the court should not refer unless it can do so without costs to that party. Possible options are: (1) If the parties agree, permitting them to select from a panel of attorneys who have agreed to serve pro bono in matters of this nature, or from a court-approved list of mediators and/or arbitrators willing to serve without charge; (2) require the parties to select from a court-approved list of retired judges willing to volunteer services in indigent cases; or (3) refer to the presiding judge for assignment to an available department or assigned judge.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 106.)

Defendant’s motion is GRANTED in part and DENIED in part without prejudice. The motion is GRANTED to the extent that Plaintiff is, for the second time, ordered to appear for further deposition, as noticed by defendant, within 30 days and to answer all questions without unreasonable objections. Plaintiff is strongly cautioned that unless he is willing to answer, without objection, reasonable questions on the topics he has placed at issue by bringing claims against Defendant, he may not be permitted to continue with this lawsuit. Potential evidence, issue, or even terminating sanctions may be considered by the court, upon proper motion, for continued and repeated refusal to cooperate with and participate in authorized discovery. Defendant’s request for monetary sanctions in the amount of $3,376.71, reflecting costs and fees associated with the two attempts to complete Plaintiff’s deposition as set forth in the declarations of Defense Counsel Lance Burrow is GRANTED. These monetary sanctions shall be paid to defendant’s counsel within 30 days.

Defendant’s motion is DENIED without prejudice at this time as to the request for a discovery referee. While Defendant has made a showing that Plaintiff has behaved unreasonably at deposition, a discovery referee will likely have no real power to control the conduct of parties at deposition, other than to rule on objections, and the Court is not presented with evidence regarding Plaintiff’s ability to pay costs associated with a referee. The Court does note that the deposition transcripts submitted show that plaintiff has made inappropriate objections to deposition questions. Plaintiff’s objections are OVERRULED. Plaintiff is ordered to answer all the questions previously posed to which he has objected, or which he has refused to answer.

Should Plaintiff’s intransigence continue the Court will be willing to entertain a further motion under CCP § 639(a), along with motions for further sanctions, including issue, evidence, and or terminating sanctions.