Case Number: TC028557 Hearing Date: November 27, 2018 Dept: A

# 9. Sandra Hope, as executrix of estate of Christine Shanklin-Williams v. Russell Gonzalez et al.

Case No.: TC028557

Matter on calendar for: motion for judgment on the pleadings for relief of rejected First Amended Complaint

Tentative ruling:

I. Background

In this dispute, water leaked from an upstairs condominium into the condominium below. Defendants Russell Gonzalez and Kayla Gonzalez own the upper unit. Plaintiff Sandra Hope, in pro per, as executrix of the estate of Christine Shanklin-Williams, owns the downstairs unit. On August 29, 2018, the Court rejected Hope’s First Amended Complaint (“FAC”); plaintiff was instructed to seek leave to file it. On October 5, 2018, Hope filed this motion for judgment on the pleadings for relief of rejected first amended complaint. Defendants oppose and request sanctions.

For the reasons set forth below, the Court denies the motion.

II. Standard

a. Judgment on the pleadings

A motion for judgment on the pleadings may be brought on the basis that the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (C.C.P., § 438(c)(1)(B)(ii).) A failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. (See Hall v. Chamberlin (1948) 31 Cal.2d 673, 679-80.)

In reviewing a motion on the pleadings, courts “apply the same rules governing… sustaining a general demurrer.” (County of Orange v. Assn. of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32.) A demurrer admits the truth of all facts pleaded. (See Rosland v. Morgan Stanley Dean Witter Co. (2000) 80 Cal.App.4th 345, 349.) Yet, a general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

b. Reconsideration

Under California Code of Civil Procedure § 1008(a), a party has 10 days from written service of an order’s notice of entry to file an application for reconsideration “based upon new or different facts, circumstances, or law.”

III. Analysis

This motion is improper either as a motion for judgment on the pleadings or as a motion for reconsideration. Plaintiff essentially argues for reconsideration of the Court’s order rejecting the FAC. A motion for reconsideration must be filed within 10 days of the notice of the ruling, which was mailed August 29, 2018. (Opp. Exh. A.) Plaintiff’s reliance on federal procedural rules is unavailing in this Court.

The motion is denied. Plaintiff must file a motion seeking leave of the Court to file the FAC.

IV. Ruling

The motion is denied. Defendants’ request for sanctions is denied.