It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
MOTION FOR JUDGMENT ON THE PLEADINGS IS TIMELY AND PROPER
A motion for judgment on the pleadings may be made at any time, even after the time for demur or answer to the complaint. Ion Equipment Company v. Nelson (1981) 110 Cal.App.3d 868, 168. A motion for judgment on the pleadings may be made on the ground that the opposing pleading fails to state facts sufficient to constitute a cause of action. Colberg v. California (1971) 67 Cal.2d 408, 412. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
A motion for judgment on the pleadings has the same function as a general demur, but is made after the time for the demur has expired. Except as provided by statute, the rules governing demur apply. Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2005) §7:275; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198. The motion for judgment of the pleadings can assert statutory grounds, such as C.C.P. §438(B)(ii) and/or non-statutory grounds. Unless the court orders otherwise the statutory motion for judgment on the pleadings cannot be made after the entry of a pretrial conference order, or 30 days before the date the action is initially set for trial, whichever is later. (C.C.P. §438(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group, 2005) §7.280.
However, the non-statutory motion for judgment on the pleadings can be made at any time during the lawsuit, since the grounds for a general demur are never waived. Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586. This motion is timely because no pretrial conference order has been entered. Otherwise, defendant asks the court to allow the motion to be made on statutory grounds.
A general demur will lie for a defect apparent on the face of a pleading under attack, or on the basis of matters which the court can take judicial notice. C.C.P. §430.30(a). Where the matters judicially noticed establish a complete bar to the present action, the First Amended Complaint fails to allege facts sufficient to constitute a cause of action. It is treated as if the contrary allegations in the First Amended Complaint did not exist, and hence the general demur, or motion for judgment on the pleadings is properly granted. Dtyden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 997. (See Part 3 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.