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

Filing a motion for judgment on the pleadings by a defendant in the State of California is the topic of this blog post.  Statutory authority for a motion for judgment on the pleadings in California 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 defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant."

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 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. Significantly, a pleading must allege facts and not mere conclusions and must allege each and every element required to state a particular cause of action.

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. (1992) 4 Cal.App. 4th 857, 880 (1992).

Therefore, 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 is the correct procedure, assuming that the time for demurrer has already expired. Note that once an answer has been filed by the defendant, a demurrer cannot be filed.

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. 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 defendant can click below to purchase a sample motion complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author.

Sample motion for judgment on the pleadings for Defendant in California

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 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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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.

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