Memorandum of Points and Authorities
SUPERIOR COURT OF CALIFORNIA
COUNTY OF _________________
)NO. __________
_________________________ [name], )MEMORANDUM OF POINTS
)AND AUTHORITIES _______
)___ [specify, e.g., IN
)SUPPORT OF MOTION FOR
)JUDGMENT ON THE
)PLEADINGS] [TELEPHONE
Plaintiff,)Date: __________
v. )Time: __________
_________________________ [name], )Location: __________
Defendant.)[Hearing Judge: _______
)___]
)Date Action Filed: ____
)[Trial Date: __________
)]
)
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TABLE OF AUTHORITIES
Page
Cases
[LIST cases in alphabetical order and page(s) on which they appear]
Statutes
[LIST statutes in alphabetical order by code and page(s) on which they appear]
Texts
[LIST texts cited and page(s) on which they appear]
Law Reviews
[LIST law reviews or journals cited and page(s) on which they appear]
[INCLUDE opening summary if memorandum exceeds 15 pages]
I. SUMMARY OF ARGUMENT
[SUMMARIZE the arguments set forth in the memorandum]
II. STATEMENT OF FACTS
_________________ [State facts relevant to the determination of the motion, e.g., Plaintiff seeks recovery of damages for personal injuries sustained in an automobile accident that occurred on _________________ (date). As shown by the records of this court, the complaint was filed on _________________ (date)].
[SET FORTH each point of law supporting your position, anticipating and, if desired, defusing the major arguments that the opposition will raise. The following points and authorities set forth as an example illustrate the manner in which points and authorities in support of a motion for judgment on the pleadings on the ground the action is barred by the statute of limitations might be set forth. Counsel should also insert argument between paragraphs when appropriate, showing the relationship between the facts of the present case and the point of law stated. If appropriate, the letter and introductory phrase or paragraph heading of each point should be included in the table of contents if one is required.]
III. A MOTION FOR JUDGMENT ON THE PLEADINGS IS PROPER TO RAISE THE BAR OF THE STATUTE OF LIMITATIONS AND MAY BE MADE AT ANY TIME BEFORE FINAL JUDGMENT IS ENTERED.
A. Nature of Motion. A motion for judgment on the pleadings is made on the same grounds and decided on the same basis as a general demurrer, and judgment on the pleadings for defendant is proper when the complaint on its face fails to state a cause of action ( Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 342, 264 Cal. Rptr. 673 ).
B. Failure of Complaint to State Cause of Action. A complaint that shows on its face that the cause of action is barred by the statute of limitations does not state facts sufficient to constitute a cause of action and is subject to a general demurrer ( Code Civ. Proc. § 430.10(e) ), but the defect (bar of the statute) must be alleged (see Jessica H. v. Allstate Ins. Co. (1984) 155 Cal. App. 3d 590, 592, 202 Cal. Rptr. 239 (involving a demurrer)).
C. When Motion Can Be Made. A motion for judgment on the pleadings can be made at any time before final judgment is rendered ( Shabrick v. Moore (1961) 195 Cal. App. 2d 56, 59, 15 Cal. Rptr. 310 ).
IV. THE COMPLAINT SHOWS ON ITS FACT THAT THIS ACTION IS BARRED BY THE STATUTE OF LIMITATIONS.
A. When Cause of Action Accrues. A cause of action accrues when there is a remedy available (Heyer v. Flaig (1969) 70 Cal. 2d 223, 230, 74 Cal. Rptr. 225, 449 P.2d 161 ).
B. When Period of Limitation Starts. The period of limitation begins to run when a suit may be maintained ( Osborn v. Hopkins (1911) 160 Cal. 501, 506, 117 P. 519 ). In this action, the period of limitation began to run on _________________ [date], the date on which the automobile accident occurred.
C. Limitation on When Action Can Be Commenced. With exceptions not here applicable, civil actions can only be commenced within the periods prescribed in Code of Civil Procedure sections 312-365 ( Code Civ. Proc. § 312 ).
D. Period of Limitation on Personal Injury Action. The period prescribed for the commencement of an action for injury to one caused by the wrongful act or neglect of another is two years ( Code Civ. Proc. § § 335, 335.1 ). Thus, to be timely in this case, the action would need to have been commenced before _________________ [date].
E. When Is Action Commenced. An action is commenced, within the meaning of Code of Civil Procedure section 312 et seq. , when the complaint is filed ( Code Civ. Proc. § 350 ). Here, the complaint was filed on _________________ [date], _________________ [specify number of days] after the limitation period expired.
[CONCLUSION if desired]
Based on the foregoing authorities, defendant respectfully requests an order granting his/her motion for judgment on the pleadings and dismissing the action.
Dated: _________________.
_________________ [signature]
Attorney for _________________ [moving party]
36-417 California Forms of Pleading and Practice--Annotated § 417.50