2018-00229021-CL-CL

LVNV Funding, LLC vs. Greg Grunwald

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Karayan, Sarkis S.

Plaintiff LVNV Funding, LLC’s (“Plaintiff”) motion for judgment on the pleadings is UNOPPOSED and is GRANTED, without leave to amend.

Plaintiff’s request for judicial notice is granted. In taking judicial notice of these documents, the court accepts the fact of their existence, not the truth of their contents.

This action arises from a delinquent credit account. Defendant incurred charges on a credit account with Plaintiff in the sum of $1,268.15, plus costs and minus payments made by Defendant.

Plaintiff’s counsel contacted Defendant via telephone on December 28, 2018, to meet and confer regarding this motion. Defendant did not answer and Plaintiff’s counsel left a message. Defendant did not return the phone call. The Court finds the foregoing is sufficient pursuant to CCP 439.

On December 17, 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 opened an account, made purchases and payments on the account, failed to make required payments on the account, and that Defendant owes Plaintiff the sum of $1,268.15. 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 § 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 $1,268.15. “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.

Plaintiff has indicated the incorrect address in its notice of motion. The correct address for Department 53 of the Sacramento County Superior Court is 813 6th Street, Sacramento, California 95814. Plaintiff shall notify Defendant immediately.

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