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1The topic of this issue of the newsletter this week is the issues involved for a party filing a motion

for judgment on the pleadings in California. California Code of Civil Procedure 438 states in pertinent part that, A party may move for judgment on the pleadings on the following grounds, if the moving party is a plaintiff, that 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. So both a plaintiff and defendant may file a motion for judgment on the pleadings. If a plaintiff is served with an answer containing nothing but generic boilerplate affirmative defenses that lack any specific details to support the defenses a motion for judgment on the pleadings may be filed. If a defendant has been served with a complaint containing causes of action which fails to allege each and every element required to state that particular cause of action, then filing a motion for judgment on the pleadings may be filed, assuming that the time for demurrer has already expired. If a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp. 4 Cal.App. 4th 857, 880 (1992). A motion for judgment on the pleadings has the same function as a general demurrer but can be made even after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for a special demurrer. The rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint as well as demurrers to answers. Significantly, a pleading must allege facts and not mere conclusions. In FPI Development, Inc vs. A1 Nakashima (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint. (Answer alleging fraud in the inducement and failure of consideration demurrable as mere conclusion.) Therefore if the answer consists, as most do, of boilerplate affirmative defenses, then filing a motion for judgment on the pleadings is the correct procedure, if the time to file a demurrer to the answer has expired. Note that the time period for filing a demurrer to an answer is just ten (10) calendar days following service of the answer. California Code of Civil Procedure 438(e) states that, 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. Despite the language in California Code of Civil Procedure 438 regarding time limits, and even though said statute was enacted in 1994, several California Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

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 Cal. App. 4th 644, 650; see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2common law motion for judgment on the pleadings upheld despite the fact that CCP 438 had been enacted during course of proceedings. A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure 430.80. However, in the authors experience some judges do adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure 438(e). A party contemplating filing a motion for judgment on the pleadings should take that into consideration. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author's website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro Copyright 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business

relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

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