15 2016-00190463-CL-CL

Gimbal Capital, Inc. vs. Matthew Castillo

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Kenosian, John P.

Appearance required by all parties, either in person or court-call:

This matter was originally scheduled to be heard on March 5, 2018. On that date, the Court continued the matter on its own motion. Plaintiff failed to file the requisite meet and confer declaration and the Court continued the matter for the parties to meet and confer pursuant to Code of Civil Procedure section 439.

Plaintiff was ordered to meet and confer with opposing counsel in person or by telephone and file a meet and confer declaration by March 29, 2018. Plaintiff has not filed any declaration in connection with this demurrer.

Prior to the hearing, the parties shall meet and confer in person or by telephone as required by Code of Civil Procedure section 439. The parties shall then be prepared to discuss the results of their meet and confer efforts at the hearing.

Assuming the parties persuade the Court at the hearing that they have satisfied the meet and confer requirements of section 439, and that those meet and confer efforts did not resolve any of the issues raised in the motion, the Court is prepared to rule as

follows.

Plaintiff Gimbal Capital, Inc.’s (“Plaintiff”) motion for judgment on the pleadings is GRANTED, without leave to amend.

Plaintiff’s request for judicial notice of Plaintiff’s Complaint, defendant’s answer, Plaintiff’s Request for Admissions, Set No. One (Ex. A to Plaintiff’s Motion for Order to Deem Matters Admitted), and the Court’s January 16, 2018, Minute Order is

GRANTED.

This action arises from a delinquent loan. Defendant received a loan from LOANME, INC., and allegedly defaulted on the loan, leaving a balance of $5,398.98. Plaintiff acquired ownership of the debt and filed this action on February 11, 2016, to collect the balance due.

On January 16, 2018, the Court granted Plaintiff’s unopposed motion to deem matters admitted. Plaintiff now moves for judgment on the pleadings based on these admissions. Specifically, that defendant admits he obtained a loan, defaulted on the loan, and that the balance alleged in the complaint is due and owing from him. Defendant has admitted all of the allegations in the complaint.

When the moving party is the plaintiff, there is only one ground for a motion for judgment on the pleadings: “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.” (Code Civ. Proc. § 438(c)(1)(A).) The Court must disregard all controverted allegations in the complaint and accept all facts properly pleaded in the answer. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379-1380.) “A motion by plaintiff for judgment on the pleadings is in the nature of a general demurrer, and the motion must be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense.” ( MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-813.) The Court assumes the truth of all material allegations in the challenged pleading no matter how improbable. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397.) Further, the Court will take judicial notice of records, such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer [or motion for judgment on the pleadings] (Morris v. Harbor Boat Bldg. Co. (1952) 112 C.A.2d 882, 886; Columbia Cas. Co. v. Northwestern. Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604- 605.) As noted, in ruling on a motion for judgment on the pleadings, the Court “may consider matters that may be judicially noticed, including a party’s admissions or concessions which cannot reasonably be controverted.” (Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989-990 (citing to Evans v. Cal. Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548-549.) It is proper for this Court to take judicial notice of its own records (Code Civ. Proc. § 452(d)), including the order deeming matters admitted for Defendant’s failure to respond to discovery.

Code of Civil Procedure section 2033.410(a) provides: “Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300.”

“A deemed admitted order establishes, by judicial fiat, that a nonresponding party has

responded to the requests by admitting the truth of all matters contained therein. ( Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983; Weil & Brown, Cal. Civil Pro. Before Trial (Rutter Guide, 2015 Update) § 8:1375.1.) Here, the deemed admissions conclusively establish that Defendant owes $5,398.98. “Absent leave of court to amend or withdraw the admission, no contradictory evidence may be introduced.” ( Murillo v. Sup. Ct. (2006) 143 Cal.App.4th 730,736 (citations omitted).) Since there is no reasonable possibility that the defect could be cured by amendment, the motion is properly granted without leave to amend. (Smiley v. Citibank (1995) 11 Cal. 4th 138, 164 n. 18 (aff’d by 517 U.S. 735).) When a motion for judgment on the pleadings is granted without leave to amend, judgment shall be entered forthwith in accordance with the motion. (Code Civ. Proc. § 438(h)(3).)

The Court will sign the proposed order and judgment