Case Number: BC592731 Hearing Date: September 10, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CLAUDIO ZAMPOLLI,

Plaintiff,

vs.

TRISTRAM BUCKLEY, et al.,

Defendants.

CASE NO.: BC592731

[TENTATIVE] ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS

Date: September 10, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant Tristram Buckley

RESPONDING PARTY: Plaintiff Claudio Zampolli

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s complaint arises from Defendant allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq. In connection with his third cause of action, Plaintiff alleges that Defendant yelled in front of numerous witnesses at an exotic car show in Monterey, California that Plaintiff stole Defendant’s Maserati Mistral.

Defendant filed a motion for judgment on the pleadings with respect to Plaintiff’s third cause of action for slander per se. Defendant argues that in the Los Angeles Superior Court Case number BC242469, on May 1, 2002, the Court found that Plaintiff committed conversion of Defendant’s Maserati Mistral pursuant to a default judgment. (Motion at Exhibits 1 and 2.) Defendant argues that the default judgment in BC242469 is res judicata as to the issue of Plaintiff converting Defendant’s Maserati and as such there is no basis for Plaintiff’s third cause of action.

Initially, the Court finds that Defendant filed a separate brief in addition to his reply brief with respect to Plaintiff’s being a public figure in a matter of public interest. Defendant’s separate brief was filed after Plaintiff submitted his opposition to Defendant’s motion for judgment on the pleadings. Plaintiff thus had no opportunity to respond to the arguments in Defendant’s separate brief on Plaintiff being a public figure in a matter of public interest.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Plaintiff’s evidentiary objections numbers 1-8 to the declaration of Tristram Buckley.

JUDICIAL NOTICE

The Court GRANTS Plaintiff’s request for judicial notice.

The Court GRANTS Defendant’s requests for judicial notice. While the Court takes judicial notice of various documents such as complaints and declarations in connection with Defendant’s requests for judicial notice, the Court only notices the existence of the documents and does not accept the truth of the matters stated therein. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047.)

MEET AND CONFER

The meet and confer requirement has been met.

DISCUSSION

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “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.” (In re Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1155.) Under California Code of Civil Procedure, Section 438(g)(1) a motion for judgment on the pleadings may be bought if “[t]he moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer” or a motion for judgment on the pleadings may be bought pursuant to California Code of Civil Procedure, Section 438(g)(2) if “[t]he moving party did not demur to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section.”

Plaintiff argues that Defendant’s motion for judgment on the pleadings is improper because Defendant has already been overruled on a demurrer bought on the same ground as Defendant’s motion for judgment on the pleadings. The Court finds that Defendant’s motion for judgment on the pleadings is improper. Defendant has already demurred to the complaint on the ground that the judgment in BC242469 refutes Plaintiff’s third cause of action. (Plaintiff’s RJN at Exhibit A.) The Court clearly overruled Defendant’s demurrer on that ground. (Id.) Now, Defendant brings a motion for judgment on the pleadings on the same ground—that the judgment in BC242469 bars Plaintiff’s third cause of action. Defendant presents no argument in his moving or reply brief that there has been a change in applicable case law or statute since the Court’s ruling on the demurrer. Moreover, Defendant fails to present any argument with supporting legal authority in his reply brief to rebut Plaintiff’s argument that his motion for judgment on the pleadings is improper due to the Court overruling his demurrer to the complaint. The Court finds that Defendant has conceded on this point. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 (“[c]ontentions are waived when a party fails to support [its arguments] . . . [with] citatio[n] to legal authority”).)

The Court therefore DENIES Defendant’s motion for judgment on the pleadings as it is improper.

Moving party is ordered to give notice of this ruling.