Case Number: SC112473    Hearing Date: October 20, 2014    Dept: I

FITZPATRICK v. BELDEN
SC112473

MOTION FOR JUDGMENT ON THE PLEADINGS
10/20/14

Complaint filed: 5/3/11
Trial date: Not set

Tentative Decision

Merits

This is an action by an attorney in propria persona against her former landlords for negligence, fraud, breach of warranty of habitability, and related claims arising from alleged asbestos in, and flooding of, the leased residential premises. Defendant Belden moves for judgment on the pleadings, based on Plaintiff’s failure to list this action as an asset in her later-filed Chapter 7 bankruptcy petition. The Court will deny the motion without prejudice due to a material procedural defect.

CCP 438(f) provides that a defendant may assert a motion for judgment on the pleadings “only after [¶] … [¶] … the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired” (emphasis added). See also, e.g., Weil & Brown (2013) 7:279.

Here, for reasons unknown to the Court, Defendant filed the motion at bar before filing his answer. Indeed, apparently, Defendant filed his answer (on October 2, 2014) only in response to Plaintiff’s pointing out the prematurity of the motion at bar in her opposition brief. Notably, Defendant’s reply brief does not address how his filing of the answer on October 2, 2014 acts to retroactively validate the prematurely-filed motion.

If the motion is renewed, moving party is to support with citations to pertinent authority his assertion that Plaintiff’s listing of this action in her Statement of Financial Affairs (see, Opp. Exh. 1) was not the legal equivalent of listing it in a bankruptcy schedule for the purposes of determining issues of lack of standing/estoppel. See, e.g., County of Fresno v. Shelton (998) 66 Cal.App.4th 996, 1012, fn. 7 (“Judges are asked to rule on legal issues when under great time pressure. They are often in a position where a failure of one of the parties to alert them as to the applicable law will result in the judge’s not being aware of all the pertinent law before he or she rules. Judges cannot reasonably be expected to be aware of every nuance or arcane facet of the law. It is the attorneys’ responsibility to make sure the judge is well versed in the law”).

Motion is denied without prejudice.

Other matters

What is the status of the action as to the other named defendants?

All counsel should note that it is the better practice to refrain from fax-filing documents. Fax-filed documents are often less legible than documents filed in person or by mail, as was the case with the numerous documents reviewed by the Court in connection with today’s hearing. There is the difficulty in losing pages either in transmission or once the document arrives. Faxed documents lack the exhibit tabs required by CRC 3.1110(f), as was the case with the four exhibits attached to the motion. Further, in light of the budget crisis, there is a significant delay in receiving fax filed documents in the courtroom.

The parties have the option of over-night delivery, faxing to an attorney service with instructions to file the document (after attaching any required tabs) directly in the courtroom, or continuing to file by fax in the clerk’s office. Parties electing the last option need to understand that the court laid off 320+ persons 2 years ago and terminated approximately 540 more positions in June 2013. The result is an incredibly short-staffed clerk’s office; and documents faxed seem to get even less priority than documents personally filed.

Plaintiff in propria persona is reminded that she cannot properly execute proofs of service in this action, because she is a party to it. See generally, e.g., CCP 1013a(1)-(4) (each requiring that the person executing the proof of service by mail state under oath that they are “not a party to the cause”).

NOTICE

Moving party shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.