civil tentative rulings

The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.

Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.

Timestamp: 03/27/2015 at 10:10pm

The Tentative Rulings for Monday March 30, 2015 are:

Re:              Viking Ready Mix Co., Inc. v.  Halopoff & Sons, Inc., et al.

Case No.:   VCU 257034

Date:          March 30, 2015

Time:          8:30 A.M. 

Dept.          1 – The Honorable Melinda Reed

Motion:       Motion by Attorney Justin D. Harris to be Relieved as Counsel for defendants John Halopoff and Halopoff & Sons, Inc.

Tentative Ruling: There is no tentative ruling in this matter. Attorney Justin D. Harris is to meet and confer with defendants and attempt to obtain consent for substitution as required by CRC 3.1362(c) or otherwise resolve this motion. If there is no resolution, the defendant and counsel are to personally appear. No CourtCall is permitted.


Re:              FIA Card Services, N.A. v. Bertley

Case No.:   VCL 164089

Date:          March 30, 2015

Time:          8:30 A.M. 

Dept.          1 – The Honorable Melinda Reed

Motion:       Motion by Plaintiff FIA Card Services, N.A. for Judgment on the Pleadings

Tentative Ruling:  To deny the Motion by Plaintiff FIA Card Services, N.A. for Judgment on the Pleadings.

Plaintiff’s request for judicial notice is granted.

Proof of service in the court’s file indicates notice of the motion was adequate. No response to the motion has been filed.

Under Code of Civil Procedure sections 438(c)(1)(A) and 438(c)(2)(B), a motion for judgment on the pleadings challenges the entire answer or any one of the affirmative defenses in the answer on the ground that (1) the complaint states facts sufficient to constitute a cause of action and (2) the answer does not state facts sufficient to constitute a defense to the complaint. (See Hardy v. Admiral Oil Co. (1961) 56 Cal. 2d 836, 839-841.)

Here, defendant Miranda A. Bertley’s answer consists of a general denial and asserts six affirmative defenses. Thus, the answer sufficiently contradicts the allegations in the complaint such that judgment on the pleadings cannot be granted based solely on the face of the pleadings.

As to the court’s order deeming matters admitted for Bertley’s failure to respond to discovery, on a motion for judgment on the pleadings or demurrer judicial notice “will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Joslin, et al. v. H.A.S. Insurance Brokerage (1986) 184 Cal. App. 3d 369, 375; Pang v. Beverly Hosp., Inc. (2000) 79 Cal. App. 4th 986, 989-990.)

Here, Bertley’s admissions are controverted by her general denial, and even if not now reasonably in dispute because of the court’s order on admissions, Bertley’s alleged affirmative defenses clearly remain unresolved at this time. As such, the matters deemed admitted are not considered for purposes of ruling on plaintiff’s motion for judgment on the pleadings.

In short, the court does not test the sufficiency of the facts on motion for judgment on the pleadings. Accordingly, the motion is denied.  

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

This concludes the civil tentative rulings