Opinion
E044926
2-27-2009
RUBEN TORRES SOTO et al., Plaintiffs and Appellants, v. ESTATE OF SHANON J. CARLSEN, Defendant and Respondent.
Elkins, Bayard & Hollands, Thomas J. Bayard; Quirk Law Firm and Trevor M. Quirk for Plaintiffs and Appellants. Higgins Harris Sherman & Rohr, John J. Higgins and Dyan Flyzik for Defendant and Respondent.
Not to be Published in Official Reports
Plaintiffs appeal from a judgment entered following an order granting defendants motion for judgment on the pleadings. They also appeal from a postjudgment order denying their motion for relief, pursuant to section 473 of the Code of Civil Procedure. As we discuss below, the defect in the pleadings upon which the motion for judgment was based did not affect the substantial rights of defendant. Accordingly, we reverse the judgment.
All statutory citations herein refer to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2006, plaintiffs filed a complaint for personal injuries arising out of an automobile accident in which the decedent, Shanon Carlsen, was killed. The accident occurred on May 24, 2005. The complaint included a single cause of action for negligence. On October 10, 2006, plaintiffs filed a first amended complaint which purported to include three causes of action. The first amended complaint actually included only a single cause of action, joining the decedents personal representative pursuant to Probate Code section 550 et seq. That cause of action is entitled "Third Cause of Action."
On November 15, 2006, defendant filed a general denial. Then, on June 14, 2007, defendant filed a motion for judgment on the pleadings, asserting that the first amended complaint operated as a dismissal without prejudice because it failed to include any charging allegations stating a cause of action. Defendant also asserted that the first amended complaint could not be amended to include charging allegations because the two-year statute of limitations had run. (§ 335.1.) For the same reason, defendant asserted, the defect in the pleading could not be cured under section 473.
Plaintiffs belatedly filed an opposition to the motion. They also filed an ex parte application, seeking an order nunc pro tunc to correct what they described as a "copying error," i.e., that the first amended complaint as drafted contained three causes of action, including general negligence and motor vehicle negligence, but that an incomplete version was filed with the court as a result of clerical error by the attorneys staff. The court denied the ex parte application on procedural grounds. Plaintiffs also filed an ex parte application for an order shortening time to file a motion asking the court to accept their late-filed opposition to the motion for judgment on the pleadings, and an ex parte application for an order shortening time for hearing on a noticed motion for an order correcting the first amended complaint nunc pro tunc, which was submitted concurrently. The court denied both ex parte applications.
The court struck plaintiffs late-filed opposition to the motion for judgment on the pleadings and granted the motion. Notice of entry of the order granting the motion for judgment, including the judgment, was served on August 27, 2007. On January 9, 2008, plaintiffs filed their notice of appeal from the judgment and from the postjudgment order denying their section 473 motion.
On March 3, 2008, this court denied defendants motion to dismiss the appeal as untimely.
ANALYSIS
THE MOTION FOR JUDGMENT ON THE PLEADINGS SHOULD NOT HAVE BEEN GRANTED
In reviewing an order granting judgment on the pleadings, we review the legal issues de novo. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.)
Judgment on the pleadings may be granted if the complaint fails to state sufficient facts to constitute a legally cognizable claim. (§ 438, subd. (c)(3)(B)(ii).) Here, defendants contention is that the first amended complaint fails to state any facts which would constitute a cause of action. Plaintiffs respond that their first amended complaint, although "bare bones," states sufficient facts to apprise defendant of its claim. We disagree with plaintiffs: The first amended complaint is utterly devoid of any factual allegations stating a cause of action for negligence. However, in our view, that fact does not determine the result. What determines the result is that by the time defendant filed its motion for judgment on the pleadings, the defect in the pleading did not affect its substantial rights because it was fully apprised of the factual basis for plaintiffs claim.
A complaint must contain a statement of the facts constituting the cause of action. (§ 425.10, subd. (a)(1).) However, the ultimate purpose of the complaint is to apprise the defendant of the factual basis for the claim. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 378, pp. 514-515.) Consequently, the omission of an essential allegation from a complaint is not grounds for judgment on the pleadings, if the defendant is actually aware of the nature of the claim and its factual basis. (Ernest W. Hahn, Inc. v. Nort-Cet Corp. (1973) 34 Cal.App.3d 171, 173-174.) This principle is embodied in section 475: "The court must, in every stage of an action, disregard any error, . . . or defect, in the pleadings . . . which, in the opinion of said court, does not affect the substantial rights of the parties. . . ." (Ernest W. Hahn, Inc. v. Nort-Cet Corp., supra, at p. 174; see also Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314.)
Here, defendants motion for judgment on the pleadings establishes that by the time the motion was filed, defendant knew the factual basis for plaintiffs claim. The original complaint, which includes a cause of action for negligence and states sufficient facts to apprise the defense of the basis for the claim, is attached to the motion as an exhibit. In addition, the record (independent of plaintiffs belated opposition to the motion) establishes that the parties went through arbitration before defendant filed its motion for judgment on the pleadings. Because defendant was unquestionably aware of the factual basis for the negligence claim before it filed the motion for judgment on the pleadings, its substantial rights were not affected by the defect in the first amended complaint, and judgment on the pleadings should not have been granted. (§ 475.)
In its supplemental brief, which we invited following oral argument, defendant contends that the first amended complaint cannot be salvaged by application of section 475 for three reasons. First, it contends, application of section 475 does affect its substantial right to rely on the expiration of the statute of limitations as a bar to plaintiffs ability to file a second amended complaint. We agree that a defendant has a substantial right to plead a statute of limitations defense. It does not have a vested right to prevail on such a defense, however. Like any other defense, a claim that a cause of action is time-barred may be defeated without violating any substantial right of the defendant. (See 20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1272-1273 [statute of limitations defense is inoperative until "it is properly plead [sic] and accepted by a court"].) Moreover, because section 475 precludes judgment on the pleadings, a second amendment of the complaint is unnecessary, and the statute of limitations defense precluding such an amendment is inoperative.
Second, defendant contends that section 475 applies only to "minor" errors or defects in a complaint. It contends that the omission of the negligence and motor vehicle causes of action from the first amended complaint is a "major" error, in that the omission operates as a dismissal of those causes of action. We disagree, however, that the two causes of action were "entirely omitted" from the first amended complaint, as defendant asserts. The face page of the form complaint states that it is a complaint for personal injury, property damage and/or wrongful death, and the boxes "motor vehicle," "property damage" and "personal injury" are all checked. It is therefore clear that plaintiffs intended to state causes of action based on the negligent operation of a motor vehicle. The first amended complaint omits only the factual allegations stating the basis for defendants liability. While the omission of charging allegations is indeed an omission of "major" proportions, section 475 nevertheless precludes judgment on the pleadings in this case, because defendant cannot, and does not, contend that it was unaware of the factual basis for plaintiffs claim.
For this reason, this case is distinguishable from Jenkins v. Pope (1990) 217 Cal.App.3d 1292, relied upon by defendant. In that case, the amended complaint omitted a fraud cause of action which was stated in the original complaint, while retaining other causes of action which had been stated in the original complaint and adding new causes of action. (Id. at p. 1295.) In Jenkins, however, there was no question whether the plaintiff had intentionally deleted the fraud cause of action with the intention of dismissing it. Rather, the issue in Jenkins is whether as a result of deleting the fraud cause of action, the plaintiff was subject to a claim for malicious prosecution. The court held that deletion of a single cause of action while retaining others cannot support a claim for malicious prosecution because malicious prosecution requires favorable termination of the entire action, not merely dismissal of a single cause of action. (Id. at pp. 1300-1301.) In this case, it is clear that plaintiffs did not intentionally delete their causes of action for motor vehicle negligence and general negligence, and Jenkins has no bearing on the issue before us.
Finally, defendant contends that section 475 cannot be used to reverse a trial courts judgment unless it is used in conjunction with the rule stated in section 452 that pleadings must be liberally construed. The cases defendant cites do not support this contention. In Steiner v. Rowley (1950) 35 Cal.2d 713, the court cited both sections but did not hold that the application of one statute is dependent upon the applicability of the other. Nor was that the issue before the court. (Id. at p. 719.) Cases are not authority for propositions that they do not discuss or decide. (Styne v. Stevens (2001) 26 Cal.4th 42, 57.) Similarly, in Motor City Sales v. Superior Court (1973) 31 Cal.App.3d 342, although the court cited section 475, along with article VI, section 13 of the California Constitution and Code of Civil Procedure section 452, as authority for the broad proposition that courts must apply a liberal rather than a strict rule of construction of pleadings (Motor City Sales, at p. 345), the court did not state that section 475 is applicable only in that context, as defendant claims.
Section 475 unambiguously requires courts to disregard any defect in a pleading which does not affect the substantial rights of the parties. Because, as stated above, defendant was unquestionably aware of the factual basis for plaintiffs claim, the omission of the factual allegations from the first amended complaint did not affect its substantial rights. Consequently, it was error to enter judgment on the pleadings.
In light of our resolution of this issue, we need not address plaintiffs other contentions.
DISPOSITION
The judgment is reversed and the cause is remanded for further proceedings.
Plaintiffs are awarded their costs on appeal.
We concur:
Gaut, J.
King, J.