Filing a motion for judgment on the pleadings by a plaintiff in California

Filing a motion for judgment on the pleadings by a plaintiff in California is the topic of this blog post.  The statutory authority for a motion for judgment on the pleadings is found in California Code of Civil Procedure section 438 which 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."

A motion for judgment on the pleadings has the same basic 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. It should be noted that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

This means that 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.

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 that code section was enacted in 1994, many 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. 2—"common law motion for judgment on the pleadings" upheld despite fact 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 author’s experience some judges do in fact 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).

Attorneys or parties in California who would like to view a portion of a sample motion for judgment on the pleadings to be used by a plaintiff complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author can use the link shown below.

Sample motion for judgment on the pleadings for California plaintiff

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at LegalDocsPro website and his Facebook page at Facebook page

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link:  Subscribe to FREE weekly newsletter

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, 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 blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.