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California Code Of Civil Procedure Section 438

Legal Research Home > California Lawyer > Code of Civil Procedure > California Code Of Civil Procedure Section 438

(a) As used in this section:
   (1) "Complaint" includes a cross-complaint.
   (2) "Plaintiff" includes a cross-complainant.
   (3) "Defendant" includes a cross-defendant.
   (b) (1) A party may move for judgment on the pleadings.
   (2) The court may upon its own motion grant a motion for judgment
on the pleadings.
   (c) (1) The motion provided for in this section may only be made
on one of the following grounds:
   (A) If the moving party is a plaintiff, that 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.
   (B) If the moving party is a defendant, that either of the
following conditions exist:
   (i) The court has no jurisdiction of the subject of the cause of
action alleged in the complaint.
   (ii) The complaint does not state facts sufficient to constitute a
cause of action against that defendant.
   (2) The motion provided for in this section may be made as to
either of the following:
   (A) The entire complaint or cross-complaint or as to any of the
causes of action stated therein.
   (B) The entire answer or one or more of the affirmative defenses
set forth in the answer.
   (3) If the court on its own motion grants the motion for judgment
on the pleadings, it shall be on one of the following bases:
   (A) If the motion is granted in favor of the plaintiff, it shall
be based on the grounds that 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.
   (B) If the motion is granted in favor of the defendant, that
either of the following conditions exist:
   (i) The court has no jurisdiction of the subject of the cause of
action alleged in the complaint.
   (ii) The complaint does not state facts sufficient to constitute a
cause of action against that defendant.
   (d) The grounds for motion provided for in this section shall
appear on the face of the challenged pleading or from any matter of
which the court is required to take judicial notice.  Where the
motion is based on a matter of which the court may take judicial
notice pursuant to Section 452 or 453 of the Evidence Code, the
matter shall be specified in the notice of motion, or in the
supporting points and authorities, except as the court may otherwise
permit.
   (e) No motion may be made pursuant to this section if a pretrial
conference order has been entered pursuant to Section 575, or within
30 days of the date the action is initially set for trial, whichever
is later, unless the court otherwise permits.
   (f) The motion provided for in this section may be made only after
one of the following conditions has occurred:
   (1) If the moving party is a plaintiff, and the defendant has
already filed his or her answer to the complaint and the time for the
plaintiff to demur to the answer has expired.
   (2) If the moving party is a defendant, and the defendant has
already filed his or her answer to the complaint and the time for the
defendant to demur to the complaint has expired.
   (g) The motion provided for in this section may be made even
though either of the following conditions exist:
   (1) The moving party has already demurred to the complaint or
answer, as the case may be, on the same grounds as is the basis for
the motion provided for in this section and the demurrer has been
overruled, provided that there has been a material change in
applicable case law or statute since the ruling on the demurrer.
   (2) The moving party did not demur to the complaint or answer, as
the case may be, on the same grounds as is the basis for the motion
provided for in this section.
   (h) (1) The motion provided for in this section may be granted
with or without leave to file an amended complaint or answer, as the
case may be.
   (2) Where a motion is granted pursuant to this section with leave
to file an amended complaint or answer, as the case may be, then the
court shall grant 30 days to the party against whom the motion was
granted to file an amended complaint or answer, as the case may be.
   (3) If the motion is granted with respect to the entire complaint
or answer without leave to file an amended complaint or answer, as
the case may be, then judgment shall be entered forthwith in
accordance with the motion granting judgment to the moving party.
   (4) If the motion is granted with leave to file an amended
complaint or answer, as the case may be, then the following
procedures shall be followed:
   (A) If an amended complaint is filed after the time to file an
amended complaint has expired, then the court may strike the
complaint pursuant to Section 436 and enter judgment in favor of that
defendant against that plaintiff or a plaintiff.
   (B) If an amended answer is filed after the time to file an
amended answer has expired, then the court may strike the answer
pursuant to Section 436 and proceed to enter judgment in favor of
that plaintiff and against that defendant or a defendant.
   (C) Except where subparagraphs (A) and (B) apply, if the motion is
granted with respect to the entire complaint or answer with leave to
file an amended complaint or answer, as the case may be, but an
amended complaint or answer is not filed, then after the time to file
an amended complaint or answer, as the case may be, has expired,
judgment shall be entered forthwith in favor of the moving party.
   (i) (1) Where a motion for judgment on the pleadings is granted
with leave to amend, the court shall not enter a judgment in favor of
a party until the following proceedings are had:
   (A) If an amended pleading is filed and the moving party contends
that pleading is filed after the time to file an amended pleading has
expired or that the pleading is in violation of the court's prior
ruling on the motion, then that party shall move to strike the
pleading and enter judgment in its favor.
   (B) If no amended pleading is filed, then the party shall move for
entry of judgment in its favor.
   (2) All motions made pursuant to this subdivision shall be made
pursuant to Section 1010.
   (3) At the hearing on the motion provided for in this subdivision,
the court shall determine whether to enter judgment in favor of a
particular party.

Last modified: January 12, 2009