2016-00196653-CU-PA

Finas D. Barefield vs. Adriana Machuca-Cruz

Nature of Proceeding: Motion to Dismiss or Alternatively a Judgment on the Pleadings

Filed By: Wasson, David B.

Defendant Adriana Machuca-Cruz’s (“Defendant”) motion to dismiss or, in the alternative, motion for judgment on the pleadings for lack of jurisdiction is UNOPPOSED but is DENIED.

The Court notes Defendant’s counsel did not file and serve with this motion any declaration that satisfies the requirements of Code of Civil Procedure section 439. Section 439 provides that “(a) [b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. Section 439(a)(3) requires that the moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following:(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. Nonetheless, the Court has elected to rule on the merits of the motion.

This action arises from an automobile accident. Plaintiff in pro per Finas D. Barefield, Jr. (“Plaintiff”) filed his complaint on June 28, 2016, alleging negligence (reckless

driving) against Defendant. There are no allegations regarding automobile insurance held by either party in the complaint. In her moving papers on this motion, however, Defendant contends both Plaintiff and Defendant were insured, but Defendant’s insurance company, Access General Insurance Company, Inc. (“Access General”) was placed into liquidation and ceased operations in California. Accordingly, Defendant contends the California Insurance Guarantee Association (“CIGA”) stepped in and took control of all outstanding claims and pending litigation arising from policies issued by Access General.

Defendant argues CIGA was created to pay and discharge “covered claims,” which is defined by Insurance Code § 1063.1(c)(9) to not include “a claim to the extent it is covered by any other insurance of a class covered by this article available to the claimant or insured … .” Based on the foregoing, Defendant argues because Plaintiff had automobile insurance that provided uninsured motorist coverage, Plaintiff must first proceed against his own insurance company and, therefore, this Court no longer has jurisdiction over this matter.

Defendant first moves to dismiss pursuant to CCP § 410.30, which provides “[w]hen a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” The motion to dismiss pursuant to CCP § 410.30 is DENIED. Defendant makes no argument as to why this action should be heard in a forum outside this state.

In the alternative, Defendant moves for judgment on the pleadings pursuant to CCP § 438(c)(B), which provides a defendant may move for judgment on the pleadings if “the court has no jurisdiction of the subject of the cause of action alleged in the complaint.”

As noted above, Defendant argues that pursuant to Insurance Code § 1063.1, Plaintiff must first proceed against his own insurance company and, therefore, this Court no longer has jurisdiction over this matter. However, Defendant sets forth no legal authority in support of this proposition. The two cases cited have nothing to do with a Court losing jurisdiction if CIGA steps in to cover a claim for an insurance company that has been liquidated or is insolvent. They discuss lack of jurisdiction in other circumstances which are wholly inapposite here. Moreover, here the case is one for negligence against Defendant, not one against her liquidated insurance company.

Defendant also fails to set forth any argument as to why the pleading fails to state facts sufficient to constitute a cause of action. Indeed, a motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time for demurrer has expired. (See Code of Civ. Proc. § 438.) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or from any matter of which the court is required to or may take judicial notice. (Code of Civ. Proc. § 438(d).) A motion for judgment on the pleadings may be made by a defendant if “[t]he complaint does not state facts sufficient to constitute a cause of action against the defendant.” (Code of Civ. Proc. § 438(c).) If the allegations state a cause of action on any theory, then the motion must be denied. (Barney v. Aetna Cas. & Surety Co. (1986) 185 Cal.App.3d 966, 973-974.)

Here, Defendant has submitted Exhibits A-C, attached only to the declaration of Wasson. Defendant has not submitted a request for judicial notice attaching the documents for which she seeks judicial notice. Accordingly, the Court will not take

judicial notice of Exhibits A-C.

Nonetheless, even if the Court were to take judicial notice of Exhibits A-C, it would only take judicial notice of the fact of their existence, not the truth of their contents. The fact that these documents exist, however, is insufficient to warrant judgment on the pleadings. The documents include Defendant’s Personal Auto Policy Declarations page, Defendant’s discovery responses, and a copy of the Agreed Order Appointing Liquidator, Permanent Injunction and Notice of Automatic Stay filed in the District Court of Travis County, Texas, for the matter against Access Insurance Company.

Based on the foregoing, Defendant’s alternative motion for judgment on the pleadings is also DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.