Case Name: Ron Pascual v. Odyssey Healthcare GP, LLC, et al.
Case No.: 15-CV-289297

I. Background

This action brought by plaintiff Ron Pascual (“Plaintiff”) against defendant Odyssey Healthcare GP, LLC (“Defendant”), his former employer, arises from the termination of his employment.

According to the allegations of the Second Amended Complaint (“SAC”), Plaintiff was hired by Defendant in 2011 as a registered nurse/case manager. (SAC, ¶30.) Later, Defendant hired Thomas Sanguino (“Sanguino”) to be Plaintiff’s supervisor. (SAC, ¶ 147.) Sanguino did not like Plaintiff, and harassed him while he was Plaintiff’s supervisor. (SAC, ¶¶ 147-8.) Plaintiff reported the harassment to Defendant, without result. (SAC, ¶ 149.) Subsequently, Plaintiff administered liquid morphine to a patient after a physician verbally ordered such treatment. (SAC, ¶¶ 94-95, 99-101.) Defendant nevertheless took the position that Plaintiff did not have permission to administer the medication. (SAC, ¶107.) Sanguino altered the date on the doctor’s authorization form to make it appear that authorization occurred after the morphine was called in. (SAC, ¶ 154.) Defendant were aware that Sanguino had harassed Plaintiff in the past, and did not conduct any investigation prior to taking action against Plaintiff. (SAC, ¶ 155.) Had Defendant done so, Sanguino’s conduct and the truth of the incident would have been obvious. (SAC, ¶ 155.) Defendant terminated Plaintiff’s employment soon thereafter and reported him to the state board of nursing. (SAC, ¶112.) Defendant thereby breached an express agreement not to terminate Plaintiff but for good cause, and implied agreements to perform a proper investigation and not to fire Plaintiff based upon false evidence. (SAC ¶¶ 161-2.) At the time Defendant terminated Plaintiff, Defendant concealed all exculpatory evidence that would have allowed Plaintiff to fight his termination. (SAC, ¶ 171.)

The SAC asserts the following causes of action against Defendant: (1) breach of contract; (2) concealment; and (3) negligent concealment/misrepresentation.

Defendant previously demurred to each cause of action on the ground of failure to state sufficient facts to constitute a cause of action. The demurrer to the first and second causes of action was overruled, while the demurrer to the third cause of action was sustained without leave to amend.

Defendant now moves for judgment on the pleadings to the SAC on the ground the first and second causes of action fail to state a claim, characterizing the motion as both “as a statutory motion in accordance with Section 438 of the Code of Civil Procedure and as a non-statutory motion as recognized by Stoops v. Abbassi, 100 Cal. App. 4th 644, 650 (2002)[.]” (Notice of Mtn., pp. 1-2.) Plaintiff opposes the motion.

II. Statutory Motion

Code of Civil Procedure section 438 provides the statutory framework for a motion for judgment on the pleadings. (Code Civ. Proc., § 438.) A motion for judgment on the pleadings has the same function as a demurrer, to test the sufficiency of the pleadings, but is made after the time to demur has expired. (Cloud v. Northrop Grumman Corp. (1998) 67 CA4th 995, 999.) Section 438 includes a limitation on when a litigant who has already demurred can file a motion for judgment on the pleadings “on the same grounds.” (Code Civ. Proc., § 438, subd. (g).) A motion for judgment on the pleadings made on the same grounds as a previously overruled demurrer is only permissible, if “there has been a material change in applicable case law or statute since the ruling on the demurrer.” (Id.)

The prior demurrer and the present motion were both made on the ground of failure to state facts sufficient to constitute a cause of action, the motion is therefore based “on the same grounds” as a previously overruled demurrer. It is therefore barred by Code of Civil Procedure section 438. The statute is reasonably susceptible to this conclusion because subsection (c) of Code of Civil Procedure section 438 specifies a “ground” upon which a defendant can bring a motion for judgment on the pleadings as the failure to state facts sufficient to constitute a cause of action (Code Civ. Proc., § 438, subd. (c)(1)(B)), while Code of Civil Procedure section 430.10, subdivision (e), also lists the failure to state facts sufficient to constitute a cause of action as a “ground” upon which a party may demur.

However, in evaluating whether a subsequent motion for judgment on the pleadings was brought “on the same grounds” as a previously overruled demurrer, at least one court construed the “grounds” for the demurrer, in a broader sense, as extending to the arguments previously raised in support of the ground of failure to state a claim. (See Farber v. Bay View Terrace Homeowners Ass’n, supra, 141 Cal.App.4th at 1013 [permitting a party to raise the issue of lack of standing on a motion for judgment on the pleadings where such argument was not a stated ground in the previously overruled demurrer].) The Court did not find any cases construing “grounds” otherwise for purposes of applying Code of Civil Procedure section 438, subdivision (g). Further, this broader interpretation of “grounds” is bolstered by the statute’s reference to the permissible filing of a motion for judgment on the pleadings on the “same grounds” as a previously overruled demurrer where “there has been a material change in applicable case law or statute since the ruling on the demurrer.” (See Code Civ. Pro., § 438, subd. (g)(1).) This reference to a “material change in applicable case law” would only make sense in connection with arguments advanced by a defendant in support of a ground for demurrer.

Reading the term “grounds” broadly to extend to arguments previously made, the present motion is based on the same grounds as the previously overruled demurrer. The arguments are identical and unchanged between the two matters. (Dem., p. 7:22-28, 9:19-22; Mem. of Pts. & Auth., p. 8:9-15, 10:5-9.)

Consequently, in order for the motion to be proper, there has to a material change in the law. (Code Civ. Proc., § 438, subd. (g).) The Court issued its order on the demurrer to the SAC in August of 2017, thus only law published between August of 2017 and the present could constitute a change “since the ruling on the demurrer.” (Id.) No case appearing in Defendant’s motion for judgment on the pleadings, or reply for that matter, was published after the ruling on the demurrer. (Mem. of Pts. & Auth., p. 3 [table of authorities]; Reply, pp. 3-4 [table of authorities].) Defendant does not even assert their motion includes law published since the demurrer. Therefore, Defendant’s statutory motion for judgment on the pleadings is DENIED.

III. Non-Statutory Motion

A. Propriety of a Non-Statutory Motion

Defendant also brings the motion as a “non-statutory motion as recognized by Stoops v. Abbassi, 100 Cal. App. 4th 644, 650 (2002).” (Notice of Mtn., pp. 1-2.) However, the propriety of a non-statutory motion is dubious.

Case law regarding non-statutory motions for judgment on the pleadings is limited, and what cases exist do not discuss the procedure in depth or define its boundaries. For instance, the Sixth District has acknowledged a non-statutory motion, but expressly declined to rule on the propriety of such motions. (See Singhania v. Uttarwar (2006) 136 Cal.App.4th 416, 436, fn.4.) Another case seems to imply the non-statutory motion can exist, parallel to the statutory one. (See Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself”].) But no case explains why Code of Civil Procedure section 438, can be ignored. The California Supreme Court mentioned the section when it reviewed a ruling made prior to the enactment of the section, but neither party raised the issue of the continued validity of the non-statutory motion subsequent to the enactment. (Smiley v. Citibank (1995) 11 Cal.4th 138, 145.) There are very few cases to draw upon when assessing non-statutory motions for judgment on the pleadings, and none that address them in depth.

The propriety of a non-statutory motion for judgment on the pleadings is questionable given the Legislature’s enactment of a statute specifically addressing the subject of moving for judgment on the pleadings. The non-statutory procedure was “well-established” prior to the enactment of section 438 in 1994. (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586. [“[A] motion for judgment on the pleadings is a nonstatutory but well-established procedure with the purpose and effect of a general demurrer”].) As such, the Legislature was presumably aware of the existence of non-statutory motions when it drafted the statute. (See Arthur Andersen v. Superior Court (1998) 67 Cal.App.4th 1481, 1500–1501 [Legislature is presumed to know existing law when it enacts a new statute, including the existing state of the common law].) Yet, it chose to create a statute establishing a formalized procedure with various procedural limitations.

The enactment of Code of Civil Procedure section 438 reflects a policy decision by the Legislature that should be second guessed. (See Superior Court v. County of Mendocino, (1996) 13 Cal.4th at p. 53, [“The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom of the policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting laws is a legislative function”].) It is therefore difficult to conceive that the statute did not displace non-statutory motions. Allowing a non-statutory motion for judgment on the pleadings would give litigants the option to ignore the statutory requirements prescribed by section 438, thereby unreasonably circumventing legislatively established restrictions. Thus, the non-statutory motion for judgment on the pleadings arguably did not survive the passage of Code of Civil Procedure section 438.

Defendant relies primarily upon Stoops v. Abbassi for the non-statutory motion, but it does not persuade the Court that the non-statutory motion survived the passage of Code of Civil Procedure section 438. Defendants cite Stoops v. Abbassi for the language that a motion for judgment on the pleadings can be made “at any time prior to the trial, or at the trial itself[.]” (See Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650; Code Civ. Proc., § 438, subd. (e).) This particular point within Stoops v. Abbassi is supported by a citation to Ion Equipment Corp. v. Nelson, a case that was decided in 1980, many years before Code of Civil Procedure section 438 went into effect in 1994. (See Ibid., citing Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) The same flaw applies to the other case cited by Defendant, Sofias v. Bank of America, which also pre-dates the passage of Code of Civil Procedure section 438. (Sofias v. Bank of America, supra, 172 Cal.App.3d 583, 586.)

In sum, the state of the law on non-statutory motions is unclear, with no in-depth discussion of the interplay between the statutory and non-statutory motion. With such a lack of direction from higher authorities, the Court cannot support Defendant’s non-statutory motion because it would require ignoring a valid legislative policy choice and the related statute. Nor is the Court convinced the cases cited by Defendant truly support its argument, because they either pre-date Code of Civil Procedure section 438 or rely on authority that does. On these grounds, the Court is not inclined to accept this non-statutory motion. However, because the law is unclear, the Court will assess the non-statutory motion on its merits.

B. Merits of the Non-Statutory Motion

A motion for judgment on the pleadings on the ground of failure to state facts sufficient to constitute a cause of action is the functional equivalent of a general demurrer. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.) Defendant argues Plaintiff has failed to adequately allege either the first or second causes of action. (Mem. of Pts. & Auth., pp. 9:17-18, 10:6-18.) The Court previously overruled those arguments on demurrer. The Court now turns to the differences between the demurrer to the SAC and the present motion for judgment on the pleadings, to determine whether the differences justify a different result.

Defendant’s motion for judgment on the pleadings is nearly identical to the prior demurrer, but for the Request for Judicial Notice attached to the motion. (“RJN”) Defendant requests judicial notice of three documents. One of the three, the Court’s prior order dismissing non-employer defendants from the case, has been previously judicially noticed when considering the demurrer to the SAC. While not tremendously useful to the current determination, the Court GRANTS judicial notice as to this document.

Defendant seeks judicial notice of two other documents, a “Memorandum of Employee Agreement,” and an “Employee Handbook.” (RJN, pp. 2-3.) Defendant’s basis is Evidence Code section 452, subdivision (h), which provides for judicial notice of, “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Defendant contends that such notice is proper with regard to the “Memorandum of Employee Agreement,” because “Plaintiff admitted to its existence in his original complaint[,]” and “Plaintiff signed and dated the document.” (Id. at p. 2:9-11.) Plaintiff objects that these documents are not judicially noticeable, because Evidence Code section 452, subdivision (h) is inapplicable where facts can be reasonably disputed, and because the interpretation of the documents is actually disputed. (Opp., pp. 13-14:26-14.)

The cases cited by Defendant in support of the RJN are distinguishable. Some cases cited by the Defendant discuss documents that were attached to the complaint as exhibits, and thereby incorporated into the complaint. (See Weitzenjorn v. Lesser (1953) 40 Cal.2d 778, 785-6; Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) Neither the “Memorandum of Employee Agreement,” nor the “Employee Handbook” was in fact attached to the SAC. Defendant cites other cases applying judicial notice when documents are the core foundation of the plaintiff’s allegations, and central to the complaint. (See Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285 [taking judicial notice of letter and media release that were the basis of plaintiff’s suit against defendant for publicly releasing said documents]; Qualcomm, Inc. v. Certain Underwriters At Lloyd’s, London (2008) 161 Cal.App.4th 184, 193 [taking judicial notice of insurance policy in insurance coverage dispute].) Plaintiff’s allegations are grounded in an alleged oral and implied promise by Defendant not to terminate Plaintiff absent good cause or based upon false evidence, and Defendant’s concealment of exculpatory evidence. (SAC, ¶¶ 155, 161-162, 171.) The documents being judicially noticed in the cited cases were more closely tied to the plaintiff’s allegations than in the present case.

Furthermore, Defendant seeks to establish a certain interpretation of the documents which the Court cannot do at this stage. Defendants assert the documents are an employment contract and a set of policies which accurately reflect Defendant’s employment practices, and which should be interpreted to show Plaintiff was an at will employee. (See Mem. of Pts. & Auth., pp. 5-6:22-12.) Plaintiff disputes the interpretation of these documents, their content, and their legal effect upon his employment relationship. (See Opp., pp. 6-7:25-05.).) The court cannot take judicial notice of the truth of these documents contents and contested interpretation thereof. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 [“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable”].)

In addition, the documents are not “capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See Evid. Code, § 452, subd. (h).) Where, as here, a document would require additional evidence to explain its contents, is disputed, or not readily capable of accurate determination, judicial notice is not proper. (See Schuhart v. Pinguelo, (1991) 230 Cal. App. 3d 1599, 1609 [denying judicial notice of exhibit because “it would require an expert to explain the meaning of the exhibit, and the exhibit is subject to dispute and not readily capable of accurate determination”].) According to Plaintiff, the “Employee Handbook” document in the RJN is only one section of a much larger document and, “contradicted by other language” elsewhere in same document. (Opp., p. 7:1-4.) Regarding Plaintiff’s signature in the “Employee Handbook,” Plaintiff alleges the handbook has many signature lines, of which this is only one, contesting the extent to which a particular signature in the RJN could be used to show agreement to the handbook as a whole. (Opp. pp. 1-3.)

Also, the parties dispute the interpretation of these documents, their content, and their legal effect upon his employment relationship. (See Mem. of Pts. & Auth., p. 8:27-28; Opp., pp. 6-7:25-05.) For instance, Plaintiff disputes the meaning of the “Memorandum of Employee Agreement,” rendering it inappropriate for judicial notice. (See Fremont Indem. Co. v. Fremont General Corp., supra, 148 Cal.App.4th 97, 114.) The burden is on the party seeking judicial notice to provide sufficient information to allow the Court to take judicial notice. (See Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.) Based upon what is before it, the Court cannot determine that these documents are “reasonably beyond dispute.” (See Fremont Indem. Co. v. Fremont General Corp., supra, 148 Cal.App.4th 97, 113.)

Based upon the forgoing, the two remaining documents submitted with the RJN are not proper subjects for judicial notice. The request for judicial notice of these two documents is therefore DENIED.
IV. Conclusion

The Court has not changed its position, and follows its prior ruling overruling the demurrers to the first and second causes of action. Without additional information from the RJN, there is nothing new for the Court to consider. Based upon the reasoning outlined above, and in the Court’s previous order dated August 3, 2017, the non-statutory motion for judgement on the pleadings is DENIED.