On July 12, 2019 a
Motion-Secondary
was filed
involving a dispute between
Ford Motor Credit Company Llc,
and
Bazan, John Z,
for 09 Limited - Rule 3.740 Collections Under $10,000
in the District Court of Fresno County.
Preview
1 File No. 18-03853-0
Robert Scott Kennard E-FILED
2 State Bar No. 117017 11/5/2020 11:45 AM
Vanessa Thomas Superior Court of California
3 State Bar No. 323167 County of Fresno
NELSON & KENNARD By: L. Vang, Deputy
4 Street Address:
5011 Dudley Blvd., Bldg. 250, Bay G,
5 McClellan, CA 95652
Mailing Address:
6 P.O. Box 13807
Sacramento, CA 95853
7 Telephone: (916) 920-2295
Facsimile: (916) 920-0682
8
Attorneys for Plaintiff
9 FORD MOTOR CREDIT COMPANY LLC
10
11 SUPERIOR COURT OF CALIFORNIA - COUNTY OF FRESNO
CLOVIS DIVISION - LIMITED CIVIL CASE
12
FORD MOTOR CREDIT COMPANY LLC, Case No.: 19CECL06800
13
Plaintiff, MEMORANDUM OF POINTS AND
14
AUTHORITIES IN SUPPORT OF MOTION
vs. FOR JUDGMENT ON THE PLEADINGS
15
JOHN Z BAZAN, DATE: 12/16/2020
16
T I ME : 8 : 3 0 a . m .
Defendant DEPT: 404
17
Complaint filed: July 12, 2019
18
Trial Date: Not Set
19
20 Plaintiff FORD MOTOR CREDIT COMPANY LLC (hereinafter
21 "Plaintiff") submits the following memorandum of points and
22 authorities in support of its motion for a judgment on the
23 pleadings:
24 I.
25 SUMMARY OF FACTS
26 On July 12, 2019, Plaintiff filed its Complaint against
27 Defendant JOHN Z BAZAN, (hereinafter "Defendant"). On July 29,
28 2019, Defendant filed an Answer to Plaintiff's Complaint. Defendant
MEMORANDUM OF POINTS AND AUTHORITIES - 1
1
answered Plaintiff's Complaint by admitting that all of the
2 statements in Plaintiff's complaint are true. Defendant failed to
3
deny or object to any statements of Plaintiff's Complaint.
4 On April 20, 2020, Plaintiff's counsel made a telephone call
5
to Defendant at the phone number on r ecord in a good faith attempt
6
to request the parties meet and confer and resolve all claims.
Defendant was unavailable.
7
8
On October 19, 2020, Plaintiff's counsel made another attempt
to request the parties meet and confer and resolve all claims.
9
10 Defendant still did not respond.
II.
11
12 THE COURT SHOULD GRANT JUDGMENT ON THE PLEADINGS
IN FAVOR OF PLAINTIFF
13
14
A m otion for judgment on the pleadings pursuant to California
15
16 Code of Civil Procedure §438 is a well established procedure with
17 the purpose and effect of a general demurrer. Such a motion may be
made at any time either prior to entry of a pre-trial order or at
18
19 the trial itself. Stoops v. Ab b a s s i , 100 CA4th 644, 650 (2002). A
20 party against whom an answer has been filed may move for judgment
21 on the pleadings on the grounds that the complaint states facts
22 sufficient to constitute a cause of action against the defendant
23 and that the answer does not state facts sufficient to constitute a
defense. (California Code of Civil Procedure §438(c) (1) ( A ) . )
24
California Code of Civil Procedure §431.20 provides that
25
26 "every material allegation of the complaint . . not controverted
27 by the answer, shall, for the purposes of the action, be taken as
true." The failure to deny a material allegation necessarily
28
MEMORANDUM OF POINTS AND AUTHORITIES - 2
1 results in an a dm i s s i o n . Hennefer v. Butcher, 182 Cal.App.3d 492,
2 504.
3 In the case of a motion for judgment on the pleadings, the
4 court may take into consideration matters that may be judicially
5 noticed. Including admissions and concessions which cannot be
6 reasonably controverted. Evans v. California Trailer Court, Inc.
7 (1994) 28 Cal.App.4th 540, 549. The court may take judicial notice
8 of something that cannot be reasonably controverted, even if it
9 negates an allegation of a prior pleadings. Id.
10 In this case, Defendant's admissions establish that Plaintiff
11 alleged facts sufficient to state a cause of action, and that
12 Defendant has no defense to Plaintiff's allegations. Defendant
13 waived his right to assert any affirmative defenses when he failed
14 to deny or object in his Answer to the statements in Plaintiff's
15 Complaint.
16 III.
17 PLAINTIFF HAS SATISIFIED ITS MEET AND CONFER REQUIREMENTS UNDER
18 C . C . P . §439(a)
19 California Code of Civil Procedure §439(a) provides that the
20 moving party shall meet and confer in person or by telephone, at
2l least five days prior to the filing of a motion for judgment on the
22 pleadings, with the party who filed the pleading that is subject to
23 the motion for judgment on the pleadings for the purpose of
determining if an agreement can be reached that resolves the claims
24
25 to be raised in the motion for judgment on the pleadings. However,
26 a determination by the court that the meet and confer process was
2 insufficient is not grounds to grant or deny the motion for
7
28
MEMORANDUM OF POINTS AND AUTHORITIES - 3
1 judgment on the pleadings. ( California Code of Civil Procedure
2 §439 ( a ) ( 4 ) . )
3 Plaintiff made multiple attempts to contact Defendant b
4 telephone in a good faith effort to meet and confer on an agreement
5 resolving this case. To date, Plaintiff has not heard from Defendant.
As such, Plaintiff has satisfied its meet and confe
6
7 requirement. Thus, Plaintiff is entitled to judgment on the pleadings
8 as a matter of law.
9 IV.
10 CONCLUSION
11 For the foregoing reasons, judgment on the pleadings should be
12 granted in favor of Plaintiff and against Defendant.
13
14 Respectfully Submitted,
15
NELSON & KENNARD
16
17
Dated: B y .
Document Filed Date
November 05, 2020
Case Filing Date
July 12, 2019
Category
09 Limited - Rule 3.740 Collections Under $10,000
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1 File No. 18-03853-0 Robert Scott Kennard E-FILED 2 State Bar No. 117017 11/5/2020 11:45 AM Vanessa Thomas Superior Court of California 3 State Bar No. 323167 County of Fresno NELSON & KENNARD By: L. Vang, Deputy 4 Street Address: 5011 Dudley Blvd., Bldg. 250, Bay G, 5 McClellan, CA 95652 Mailing Address: 6 P.O. Box 13807 Sacramento, CA 95853 7 Telephone: (916) 920-2295 Facsimile: (916) 920-0682 8 Attorneys for Plaintiff 9 FORD MOTOR CREDIT COMPANY LLC 10 11 SUPERIOR COURT OF CALIFORNIA - COUNTY OF FRESNO CLOVIS DIVISION - LIMITED CIVIL CASE 12 FORD MOTOR CREDIT COMPANY LLC, Case No.: 19CECL06800 13 Plaintiff, MEMORANDUM OF POINTS AND 14 AUTHORITIES IN SUPPORT OF MOTION vs. FOR JUDGMENT ON THE PLEADINGS 15 JOHN Z BAZAN, DATE: 12/16/2020 16 T I ME : 8 : 3 0 a . m . Defendant DEPT: 404 17 Complaint filed: July 12, 2019 18 Trial Date: Not Set 19 20 Plaintiff FORD MOTOR CREDIT COMPANY LLC (hereinafter 21 "Plaintiff") submits the following memorandum of points and 22 authorities in support of its motion for a judgment on the 23 pleadings: 24 I. 25 SUMMARY OF FACTS 26 On July 12, 2019, Plaintiff filed its Complaint against 27 Defendant JOHN Z BAZAN, (hereinafter "Defendant"). On July 29, 28 2019, Defendant filed an Answer to Plaintiff's Complaint. Defendant MEMORANDUM OF POINTS AND AUTHORITIES - 1 1 answered Plaintiff's Complaint by admitting that all of the 2 statements in Plaintiff's complaint are true. Defendant failed to 3 deny or object to any statements of Plaintiff's Complaint. 4 On April 20, 2020, Plaintiff's counsel made a telephone call 5 to Defendant at the phone number on r ecord in a good faith attempt 6 to request the parties meet and confer and resolve all claims. Defendant was unavailable. 7 8 On October 19, 2020, Plaintiff's counsel made another attempt to request the parties meet and confer and resolve all claims. 9 10 Defendant still did not respond. II. 11 12 THE COURT SHOULD GRANT JUDGMENT ON THE PLEADINGS IN FAVOR OF PLAINTIFF 13 14 A m otion for judgment on the pleadings pursuant to California 15 16 Code of Civil Procedure §438 is a well established procedure with 17 the purpose and effect of a general demurrer. Such a motion may be made at any time either prior to entry of a pre-trial order or at 18 19 the trial itself. Stoops v. Ab b a s s i , 100 CA4th 644, 650 (2002). A 20 party against whom an answer has been filed may move for judgment 21 on the pleadings on the grounds that the complaint states facts 22 sufficient to constitute a cause of action against the defendant 23 and that the answer does not state facts sufficient to constitute a defense. (California Code of Civil Procedure §438(c) (1) ( A ) . ) 24 California Code of Civil Procedure §431.20 provides that 25 26 "every material allegation of the complaint . . not controverted 27 by the answer, shall, for the purposes of the action, be taken as true." The failure to deny a material allegation necessarily 28 MEMORANDUM OF POINTS AND AUTHORITIES - 2 1 results in an a dm i s s i o n . Hennefer v. Butcher, 182 Cal.App.3d 492, 2 504. 3 In the case of a motion for judgment on the pleadings, the 4 court may take into consideration matters that may be judicially 5 noticed. Including admissions and concessions which cannot be 6 reasonably controverted. Evans v. California Trailer Court, Inc. 7 (1994) 28 Cal.App.4th 540, 549. The court may take judicial notice 8 of something that cannot be reasonably controverted, even if it 9 negates an allegation of a prior pleadings. Id. 10 In this case, Defendant's admissions establish that Plaintiff 11 alleged facts sufficient to state a cause of action, and that 12 Defendant has no defense to Plaintiff's allegations. Defendant 13 waived his right to assert any affirmative defenses when he failed 14 to deny or object in his Answer to the statements in Plaintiff's 15 Complaint. 16 III. 17 PLAINTIFF HAS SATISIFIED ITS MEET AND CONFER REQUIREMENTS UNDER 18 C . C . P . §439(a) 19 California Code of Civil Procedure §439(a) provides that the 20 moving party shall meet and confer in person or by telephone, at 2l least five days prior to the filing of a motion for judgment on the 22 pleadings, with the party who filed the pleading that is subject to 23 the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims 24 25 to be raised in the motion for judgment on the pleadings. However, 26 a determination by the court that the meet and confer process was 2 insufficient is not grounds to grant or deny the motion for 7 28 MEMORANDUM OF POINTS AND AUTHORITIES - 3 1 judgment on the pleadings. ( California Code of Civil Procedure 2 §439 ( a ) ( 4 ) . ) 3 Plaintiff made multiple attempts to contact Defendant b 4 telephone in a good faith effort to meet and confer on an agreement 5 resolving this case. To date, Plaintiff has not heard from Defendant. As such, Plaintiff has satisfied its meet and confe 6 7 requirement. Thus, Plaintiff is entitled to judgment on the pleadings 8 as a matter of law. 9 IV. 10 CONCLUSION 11 For the foregoing reasons, judgment on the pleadings should be 12 granted in favor of Plaintiff and against Defendant. 13 14 Respectfully Submitted, 15 NELSON & KENNARD 16 17 Dated: B y .