2012-00126752-CU-PO

Gail Guidera vs. Albert Thomas

Nature of Proceeding:   Motion for Judgment on the Pleadings

Filed By:  Thomas, Albert
Self-represented Defendant Albert Thomas’s Motion for Judgment on the Pleadings on
Self-Represented Plaintiffs’ Complaint is DENIED.

A motion for judgment on the pleadings may be directed either at the entire complaint
or answer, or at any cause of action or affirmative defense set forth in the pleadings.
(C.C.P. 438(c)(2)). If the pleading, though uncertain or otherwise defective in form,
sufficiently states a cause of action or defense, the motion may not be granted based
on a showing of extrinsic matters, except those of which judicial notice may be taken. (
Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.) When, as here,
the moving party is the defendant, there are two permissible grounds for the motion:
(a) The court lacks subject matter jurisdiction, or (b) the complaint does not state facts
sufficient to constitute a cause of action against the defendant. (C.C.P. 438(c)(1)(B).)
The second of these is the traditional ground, and the same as for a general demurrer.
(See 5 Cal. Proc. (5th), Pleading, §§951, 952.)  Like a demurrer, a motion for judgment
on the pleadings is confined to the face of the pleading under attack, and the plaintiff’s
allegations are accepted as true. (See C.C.P. 438(d))

Plaintiffs’ Complaint, filed June 27, 2012, sets forth six causes of action against
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defendant: the 1   for Negligence; the 2            for Trespass to Land; the 3          for Violation of
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Public Policy Sacramento County Code, sec. 17.12.060 and 17.12.075; the 4   for
Violation of Public Policy; S.C.C. 16.18.401; the 5th for Negligent Infliction of Emotional

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Distress; and the 6   for Intentional Infliction of Emotional Distress.

Defendant’s Request for Judicial Notice is GRANTED.  A court may take judicial notice
of the existence of each document in a court file, but can only take judicial notice of the
truth of facts asserted in documents such as orders, findings of fact and conclusions of
law, and judgments.  Bach v. McNelis (1989) 207 Cal. App. 3d 852, 865. Further, the
Court may take notice of, and accept as true, exhibits attached to the complaint. If
facts appearing in the exhibits contradict those alleged in the complaint, the facts in the
exhibits take precedence. (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561,
567-568; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal. App. 3d 1624, 1627.)
Here, defendant has requested notice of some of the documents attached to the
plaintiff’s complaint in this action as Exhibit B.

However, the moving party’s memorandum of points and authorities refers to other
exhibits to the Declaration of Thomas (Exhs. C, D) presumably filed in the Bankruptcy
Court, which are not attached and therefore not judicially noticeable, as they have not
been provided to the Court. The only attachments to the Thomas Declaration are
Exhs. A and B; Ex. A is incomplete, as if fails to attach an exhibit to one of the Grant
Deeds.

Although moving party contends that the judicially noticeable documents reflect that
defendant Thomas is not the owner of the adjacent property, this is not clear from
either the allegations of the complaint or the attached exhibits.

As moving party has failed to demonstrate to the Court why each cause of action fails
to state facts sufficient to constitute a cause of action, the motion for Judgment on the
Pleadings must be denied.

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