On September 20, 2019 a
Motion-Secondary
was filed
involving a dispute between
Capital One Bank Usa Na,
and
Aleida Figueroa,
Raul Figueroa,
for 3.740 Collections: Limited $0 - $10,000
in the District Court of Stanislaus County.
Preview
GEORGE APOSHIAN, ESQ., Bar # 303238
LAURA M. D’ANNA, ESQ., Bar # 266113 Electronically Filed
PATENAUDE & FELIX, A.P.C. 1/14/2020 12:18 PM
6800 Owensmouth Avenue, Suite 290 Superior Court of California
Canoga Park, CA 91303—4216 County of Stanislaus
Clerk of the Court
Tel. 866-784-8084 By: Nicole Nelson, Deputy
Attorneys for Plaintiff
IN THE SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF STANISLAUS, CIVIL DIVISION
11
12 CAPITAL ONE BANK (USA), N.A. , CASE NO. CV—l9—005691
l3 Plaintiff, POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR JUDGMENT
l4 vs. ON
vvvvvvvvvv
THE PLEADINGS [C.C.P. § 438]
15 RAUL FIGUEROA, SR , ALEIDA DATE: 3/20/20
FIGUEROA TIME: 8:30 a.m.
l6 DEPT: 24
Defendants.
l7
18
Plaintiff offers the following Memorandum of Points and
19
Authorities in support of its Motion for Judgment on the Pleadings.
20
21
I.
22
FAILURE TO STATE FACTS SUFFICIENT TO
23
CONSTITUTE A DEFENSE MAY BE RAISED
24
BY MOTION AT ANY TIME DURING THE PROCEEDING
25
C.C.P. §43o.80, C.C.p. 438 (c)(1)(A)
26
27
l
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE
28 PLEADINGS [C.C.P. 438]
§
A party may move for judgment on the pleadings (C.C.P. § 438
(b)(1). If the moving party is the plaintiff, the motion may be made
if 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 (C.C.P. § 438 (d)).
lO California Code of Civil Procedure, Section 431.30, states in
ll part:
12
l3 (b) The answer to a complaint shall contain:
l4
15 1. The general or specific denial of the material allegations
l6 of the complaint controverted by the defendant.
l7
18 2. A Statement of any new matter constituting a defense.
19
20 (c) Affirmative relief may not be claimed in the answer.
21
22 (d) If the complaint is subject to Article 2 (commencing
23 the Section 90) of Chapter 5.1 of Title l of Part 1 or is not
24 verified, a general denial is sufficient but only puts in issue the
25 material allegations of the complaint. If the complaint is verified,
26
2
27
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE
28 PLEADINGS [C.C.P. § 438]
unless the complaint is subject to Article 2 (commencing with Section
90) of Chapter 5.1 of Title l of Part l, the denial of the allegations
shall be made positively or according to the information and belief of
the defendant. However, if the cause of action is a claim assigned to
a third party for collection and the complaint is verified, the denial
of the allegations shall be made positively or according to the
information and belief of the defendant, even if the complaint is
subject to Article 2 (commencing with Section 90) of Chapter 5.1 of
Title 1 of Part l.
10
ll (e) If the defendant has no information or belief upon the
12 subject sufficient to enable him or her to answer an allegation of the
l3 complaint, he or she may so state in his or her answer and place his
l4 or her denial on that ground.
15
16 (f) The denials of the allegations controverted may be
l7 stated by reference to specific paragraphs or parts of the complaint;
18 or by express admission of certain allegations of the complaint with a
l9 general denial of all of the allegations not so admitted; or by denial
20 of certain allegations upon information and belief, or for lack of
21 sufficient information or belief, with a general denial of all
22 allegations not so denied or expressly admitted.
23 ///
24 ///
25
26
3
27
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE
28 PLEADINGS [C.C.P. 438]
§
(g) The defenses shall be separately stated, and the
several defenses shall refer to the cause of action which they are
intended to answer, in a manner by which may be intelligibly
distinguished. Every material allegation of the complaint or cross
complaint, not controverted by the Answer, shall, for purposes of the
action, be taken as true (C.C.P. § 431.20 (a)).
An examination of the defendant’s Answer on file herein shows
that defendant has admitted all statements in the complaint are true,
lO with no exceptions, or has failed to deny or controvert any material
ll allegation contained in plaintiff’s complaint.
12
l3 Therefore , plaintiff requests that this Court enter an Order for
l4 Judgment against defendant on the pleadings herein, said Judgment to
15 be as follows:
16
l7 CAPITAL ONE BANK (USA), N.A., shall have judgment against
18 defendant RAUL FIGUEROA, SR in the amount of $9,481.92 principal and
l9 $425.00 costs for a total Judgment of $9,906.92.
20
21 Respectfully submitted,
22 PATENA E & FELIX, A.P.C.
23
24 DATED: January M , 2020 By:
25 égngE-APGSHEAN/LAURA M. D'ANNA
Attorneys for Plaintiff
26
4
27
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE
28 PLEADINGS [C.C.P. § 438]
Document Filed Date
January 14, 2020
Case Filing Date
September 20, 2019
Category
3.740 Collections: Limited $0 - $10,000
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GEORGE APOSHIAN, ESQ., Bar # 303238 LAURA M. D’ANNA, ESQ., Bar # 266113 Electronically Filed PATENAUDE & FELIX, A.P.C. 1/14/2020 12:18 PM 6800 Owensmouth Avenue, Suite 290 Superior Court of California Canoga Park, CA 91303—4216 County of Stanislaus Clerk of the Court Tel. 866-784-8084 By: Nicole Nelson, Deputy Attorneys for Plaintiff IN THE SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF STANISLAUS, CIVIL DIVISION 11 12 CAPITAL ONE BANK (USA), N.A. , CASE NO. CV—l9—005691 l3 Plaintiff, POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT l4 vs. ON vvvvvvvvvv THE PLEADINGS [C.C.P. § 438] 15 RAUL FIGUEROA, SR , ALEIDA DATE: 3/20/20 FIGUEROA TIME: 8:30 a.m. l6 DEPT: 24 Defendants. l7 18 Plaintiff offers the following Memorandum of Points and 19 Authorities in support of its Motion for Judgment on the Pleadings. 20 21 I. 22 FAILURE TO STATE FACTS SUFFICIENT TO 23 CONSTITUTE A DEFENSE MAY BE RAISED 24 BY MOTION AT ANY TIME DURING THE PROCEEDING 25 C.C.P. §43o.80, C.C.p. 438 (c)(1)(A) 26 27 l POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE 28 PLEADINGS [C.C.P. 438] § A party may move for judgment on the pleadings (C.C.P. § 438 (b)(1). If the moving party is the plaintiff, the motion may be made if 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 (C.C.P. § 438 (d)). lO California Code of Civil Procedure, Section 431.30, states in ll part: 12 l3 (b) The answer to a complaint shall contain: l4 15 1. The general or specific denial of the material allegations l6 of the complaint controverted by the defendant. l7 18 2. A Statement of any new matter constituting a defense. 19 20 (c) Affirmative relief may not be claimed in the answer. 21 22 (d) If the complaint is subject to Article 2 (commencing 23 the Section 90) of Chapter 5.1 of Title l of Part 1 or is not 24 verified, a general denial is sufficient but only puts in issue the 25 material allegations of the complaint. If the complaint is verified, 26 2 27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE 28 PLEADINGS [C.C.P. § 438] unless the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title l of Part l, the denial of the allegations shall be made positively or according to the information and belief of the defendant. However, if the cause of action is a claim assigned to a third party for collection and the complaint is verified, the denial of the allegations shall be made positively or according to the information and belief of the defendant, even if the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part l. 10 ll (e) If the defendant has no information or belief upon the 12 subject sufficient to enable him or her to answer an allegation of the l3 complaint, he or she may so state in his or her answer and place his l4 or her denial on that ground. 15 16 (f) The denials of the allegations controverted may be l7 stated by reference to specific paragraphs or parts of the complaint; 18 or by express admission of certain allegations of the complaint with a l9 general denial of all of the allegations not so admitted; or by denial 20 of certain allegations upon information and belief, or for lack of 21 sufficient information or belief, with a general denial of all 22 allegations not so denied or expressly admitted. 23 /// 24 /// 25 26 3 27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE 28 PLEADINGS [C.C.P. 438] § (g) The defenses shall be separately stated, and the several defenses shall refer to the cause of action which they are intended to answer, in a manner by which may be intelligibly distinguished. Every material allegation of the complaint or cross complaint, not controverted by the Answer, shall, for purposes of the action, be taken as true (C.C.P. § 431.20 (a)). An examination of the defendant’s Answer on file herein shows that defendant has admitted all statements in the complaint are true, lO with no exceptions, or has failed to deny or controvert any material ll allegation contained in plaintiff’s complaint. 12 l3 Therefore , plaintiff requests that this Court enter an Order for l4 Judgment against defendant on the pleadings herein, said Judgment to 15 be as follows: 16 l7 CAPITAL ONE BANK (USA), N.A., shall have judgment against 18 defendant RAUL FIGUEROA, SR in the amount of $9,481.92 principal and l9 $425.00 costs for a total Judgment of $9,906.92. 20 21 Respectfully submitted, 22 PATENA E & FELIX, A.P.C. 23 24 DATED: January M , 2020 By: 25 égngE-APGSHEAN/LAURA M. D'ANNA Attorneys for Plaintiff 26 4 27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR JUDGMENT ON THE 28 PLEADINGS [C.C.P. § 438]