2018-00242423-CL-CL

Bank of America N.A. vs. Ellen L. Abrogar

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Karayan, Sarkis S.

Plaintiff Bank of America, N.A.’s unopposed motion for judgment on the pleadings is granted, without leave to amend.

Plaintiff’s request for judicial notice is granted.

This is a consumer credit card action in which Plaintiff alleges common counts including open book and account stated. Defendant initially filed an answer with a general denial and raising affirmative defenses but later responded to Plaintiff’s requests for admissions and admitted all of the elements of Plaintiff’s claim and that she had no defense to 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.” (C.C.P. 438(c)(1)(A).) The grounds for the motion shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice (CCP. § 438 (d) ). The Court properly takes judicial notice of the fact that defendant has admitted the allegations of the Complaint. Indeed, 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] (Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482; Morris v. Harbor Boat Bldg. Co. (1952) 112 C.A.2d 882, 886; Columbia Cas. Co. v. Northwestern. Nat. Ins. Co. (1991) 231 C.A.3d 457, 468), Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) Thus, on a motion for judgment on the pleadings, the Court may extend consideration to matters that are subject to judicial notice; in doing so, the Court performs essentially the same task as ruling on a general demurrer. (Smiley v. Citibank (1995) 11 C.4th 138, 146.) Additionally, 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.)

Here, the complaint properly alleges the requisite allegations for common counts. Further as seen from the request for judicial notice, Defendant has admitted that that she had a credit card issued by Plaintiff, that the last payment was made on January 26, 2016, that she received billing statements, that she did not object to any amounts on the statements and that she owed the principal sum of $16,994.01, and that she had no defense to the action. While Defendant filed an answer with a general denial and raising certain affirmative defenses, the later filed admissions take precedence over the contrary allegations in the answer. (Del E. Webb Corp., supra, 123 Cal.App.3d at 604-605 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a

demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court”].) “(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.)

Based upon these admissions, the motion for judgment on the pleadings is granted in favor of moving party plaintiff, without leave to amend.

The Court will sign the proposed judgment. Plaintiff may seek costs pursuant to the Rules of Court after judgment is entered.