Case Number: BC646387 Hearing Date: February 08, 2018 Dept: 46

Case Number: BC646387
CHANG H BOU ET AL VS W DAN LEE ET AL

Filing Date: 01/11/2017
Case Type: Legal Malpractice

02/08/2018
MOTION-JUDGMENT ON THE PLEADINGS
2. Motion that REQUESTS FOR ADMISSION BE DEEMED ADMITTED

TENTATIVE RULING

Motions regarding interrogatories and requests for admission are denied without prejudice. See discussion below.

Islas’ request for judicial notice (“RJN”) is GRANTED as to Exhibit A; and otherwise GRANTED only as to the existence of the documents and the fact that certain assertions were made. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 C.A.4th 875, 882.

Islas is only named to the 7th Cause of Action and he has no standing to move for judgment on the pleadings as to co-defendants. The parties against whom a cause of action is asserted is governed by the names stated under the caption of the cause of action and not by the content of supporting allegations or prayer. CRC 2.112. Islas’ motion for judgment on the pleadings is GRANTED. Since there is no opposition to the motion, the court concludes that Plaintiff has no interest in pursuit of Islas on a cause of action so clearly deficient and barred by res judicata and that Plaintiff has no facts upon which any amendment could be made to state a cause of action. Therefore the motion is granted without leave to amend. The Complaint is ordered dismissed as to Islas. Islas to lodge and serve order of dismissal and separate judgment on the Complaint within 10 days. See discussion. Cross-Complaint remains pending.

MOTION #1 – Combined discovery motion

The motion should is DENIED without prejudice. There is no generalized motion to compel written discovery. Defendant/Cross-Complainant must file separate motions and pay a separate fee for each set of discovery.

MOTION #2
Camerino Islas’s Motion for Judgment on the Pleadings

Camerino Islas’s (“Islas”) motion is directed to the 4th-8th Causes of Action (“COAs”) in the Complaint, on the grounds that they are barred by res judicata.

Standing

The same standards apply to a motion for judgment on the pleadings as applies to a demurrer.

A party has no standing to demur on another party’s behalf. See Patrick v. Alacer Corp. (2008) 167 C.A.4th 995, 1003-04.

Therefore, Islas’ attempt to demur to the entirety of the remaining complaint must fail, as only the 7th COA is asserted against him.

The demurrer to the 4th-6th and 8th COAs is OVERRULED.

Islas is only named to the “Accounting” COA

The fact that D Islas is only named in connection with the 7th COA is in itself dispositive. The 7th COA is for an accounting, and the right to an accounting is derivative; it is dependent upon some relationship between the parties and the allegation of a valid underlying wrong. See Teselle v. McLoughlin (2009) 173 C.A.4th 156, 179; Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 C.A.4th 81, 95. Since no other COA has been alleged against Islas, there is no underlying wrong. Islas is entitled to judgment on the pleadings on that ground alone.

Standard for Motion for Judgment on the Pleadings

CCP §438 provides, in relevant part, the following:

(b)(1) A party may move for judgment on the pleadings.
(2) The court may upon its own motion grant a motion for judgment on the pleadings.
(c)(1) The motion provided for in this section may only be made on one of the following grounds:

. . .

(B) If the moving party is a defendant that either of the following conditions exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.

(2) The motion provided for in this section may be made as to either of the following:

(A) The entire complaint or cross-complaint or as to any of the causes of action stated therein.

. . .

(d) The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.

(e) No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.

(f) The motion provided for in this section may be made only after one of the following conditions has occurred:

. . .

(2) If the moving party is a defendant, and the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.

. . .

(h)(1) The motion provided for in this section may be granted with or without leave to file an amended complaint or answer, as the case may be.

(2) Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.

. . . .”

However, “a nonstatutory motion for judgment on the pleadings apparently survives without such limitations: “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” [Stoops v. Abbassi (2002) 100 CA4th 644, 650, 122 CR2d 747, 752 (citing pre-CCP § 438 case of Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 877, 168 CR 361, 365); see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 C4th 138, 145, 44 CR2d 441, 445, fn. 2—“common law motion for judgment on the pleadings” upheld despite fact CCP § 438 had been enacted during course of proceedings; and Saltarelli & Steponovich v. Douglas (1995) 40 CA4th 1, 5, 46 CR2d 683, 686—treating defective motion for summary judgment as “nonstatutory motion for judgment on the pleadings”]…Case authority for the nonstatutory motion is rather thin. None of the cited cases expressly deal with this issue; they simply assume its existence. But these cases reach a practical result. A court should be able to decide there is no valid cause of action at any time. There is no point in forcing a case to go to trial because the motion was made too late or otherwise failed CCP § 438 requirements.” Weil & Brown, et al. CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2017) ¶ 7:277 (emphasis in original).

7th COA: Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. (Brea v. McGlashan (1934) 3 C.A.2d 454, 460; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 819, p. 236.). An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation. (St. James Church of Christ Holiness v. Superior Court (1955) 135 C.A.2d 352, 359). A plaintiff need not state facts that are peculiarly within the knowledge of the opposing party. (Brea v. McGlashan, supra, 3 C.A.2d at p. 460).” Teselle v. McLoughlin (2009) 173 C.A.4th 156, 179.

“[A] fiduciary relationship between the parties is not required to state a cause of action for accounting. All that is required is that some relationship exists that requires an accounting. (Kritzer v. Lancaster (1950) 96 C.A.2d 1, 7). The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender. (1A Corpus Juris Secundum (2005) Accounting, § 6, p. 7.).” Id. at 179-180.

Res Judicata

“We have frequently used “res judicata” as an umbrella term encompassing both claim preclusion and issue preclusion, which we described as two separate “aspects” of an overarching doctrine. Claim preclusion, the “primary aspect” of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties. Issue preclusion, the “secondary aspect” historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided in the first suit.” DKN Holdings LLC v. Faerber (2015) 61 C.4th 813, 823-824.

“Claim preclusion “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen, supra, 28 Cal.4th at p. 896, 123 Cal.Rptr.2d 432, 51 P.3d 297.) Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. (Ibid.; In re Crow (1971) 4 Cal.3d 613, 622, 94 Cal.Rptr. 254, 483 P.2d 1206; Teitelbaum Furs, supra, 58 Cal.2d at p. 604, 25 Cal.Rptr. 559, 375 P.2d 439.) If claim preclusion is established, it operates to bar relitigation of the claim altogether.” Id. at 824. “[C]laim preclusion applies only to the relitigation of the same cause of action between the same parties or those in privity with them.” Id. at 825. Conversely, claim preclusion does not bar a plaintiff from suing two different parties for the invasion of the same primary right. Id.

“Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. (Mycogen, supra, 28 Cal.4th at p. 896, 123 Cal.Rptr.2d 432, 51 P.3d 297.) Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. (Boeken, supra, 48 Cal.4th at p. 797, 108 Cal.Rptr.3d 806, 230 P.3d 342.) There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. (Bernhard v. Bank of America, supra, 19 Cal.2d at p. 812, 122 P.2d 892.).” Id.

Plaintiffs’ 7th COA is based on the written contract attached to the Complaint, which is a settlement agreement resolving an earlier case in the Riverside Superior Court. (Complaint Exhibit A). That Agreement has been the subject of a motion to enforce settlement in the Riverside Superior Court, resulting in a judgment which established the ownership of the subject property, and states that Plaintiffs have neither claim to the property nor to any amount of money based on the transactions related to the property. (RJN Exhibits A-B; Complaint Exhibit A).

Therefore, it is difficult to see what basis Plaintiffs could possibly have for an accounting between themselves and Islas based on that contract.

For the foregoing reasons, Islas’ motion for judgment on the pleadings is GRANTED. Since there is no opposition to the motion, the court concludes that Plaintiff has no interest in pursuit of Islas on a cause of action so clearly deficient and barred by res judicata. Therefore the motion is granted without leave to amend.