Adedayo Abioye v. Abraham Chapa, et al.

9:01 26CV486244 Sofi Bank, National Association Order on Motion by Defense counsel 2 v. Jerry Wang of Huron Legal Group, Michael Chang, et al. P.C. to be Relieved as Counsel for Defendant Michael Chang

Defense counsel Jerry Wang of Huron Legal Group, P.C. moves under Code of Civil Procedure Section 284(2) for an Order to be Relieved as Counsel for Defendant Michael Chang.

As the Motion complies with applicable law and is well supported and duly served, the Motion is hereby GRANTED.

The Court will sign and file the Proposed Order that has already been prepared by attorney Wang and filed with this Motion.

SO ORDERED.

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9:00 25CV474504 Adedayo Abioye Order on Plaintiff’s Motion for 1 v. Judgment on the Pleadings Abraham Chapa, et al. See Line 1 below for complete tentative ruling.

After the hearing, the Court will prepare and file the formal Order.

Line 1 Case Name: Adedayo Abioye v. Abraham Chapa, et al.

Case No.: 25CV474504 Plaintiff Adedayo Abioye (“Plaintiff”) moves under Code of Civil Procedure Sections 438 for Judgment on the Pleadings in favor of Plaintiff and against Defendants Abraham Chapa and Vortex Industries, LLC (“Defendant”) on the grounds that:

1. 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. C.C.P. § 438(c)(1)(A).

2. The Defendants’ Answer is false, improper, irrelevant and was not filed in conformation with California law. C.C.P. §§ 435, 436.

Notice of Motion (the “Motion”) at 1:22-2:13 (filed: Aug. 6, 2026).

The Motion came on for hearing on September 2, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

I. Fact Allegations

On June 26, 2025, Plaintiff’s vehicle was struck by Abraham Chapa while driving as an employee in a vehicle for Vortex. At the scene of the collision, Mr. Chapa admitted to being distracted by a biker and did not see Plaintiff’s vehicle. (Complaint ¶¶ 12, 13)

As a result of the collision, Plaintiff’s vehicle was a total loss and he suffered injuries to his neck, back, and head. Plaintiff also suffered emotional and mental distress. Defendants’ insurance company communicated their willingness to compensate Plaintiff for his injuries, but have not done so. (Complaint ¶¶ 15, 17)

Plaintiff initiated this action on September 9, 2025, alleging causes of action for negligence and negligent infliction of emotional distress. On July 10, 2026, the Court sustained Defendants’ demurrer to Plaintiff’s cause of action for negligent infliction of emotional distress without leave to amend.

II. Legal Standards

“A motion for judgment on the pleadings serves the function of a demurrer,

challenging only defects on the face of the complaint. As with a demurrer, the grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Eckler v. Neutrogena (2015) 238 Cal.App.4th 433, 439, internal quotes and citations omitted; Code Civ. Proc., § 438, subd. (d).) “Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.” (Sykora v. State Dept. of State Hospitals (2014) 225 Cal.App.4th 1530, 1534; Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.)

A trial court’s determination of a motion for judgment on the pleadings accepts as true the pleading’s factual allegations, and it gives them a liberal construction. (See, Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190-191 [while allegations of a complaint must be accepted as true for purposes of a demurrer, the facts appearing in exhibits attached to the complaint will also be accepted as true, and, if contrary to the allegations in the pleading, will be given precedence].)

Although the trial court must accept as true all material facts properly pleaded, it “does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed. [Citation.]” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219.)

III. Preliminary Consideration

In support of his motion, Plaintiff submits his amended Declaration whereby he disputes the facts and affirmative defenses Defendants have raised in their answer. Defendants object to consideration of this Declaration in their opposition.

The Court will not consider Plaintiff’s Declaration for the following reasons:

1. The statements in the declaration do not appear on the face of the challenged pleading and are not subject to judicial notice. As such, the Declaration contains improper extrinsic evidence that the Court cannot consider in evaluating this motion.

2. Plaintiff’s Declaration is an improper means of challenging the legal sufficiency of the facts that are raised in the answer.

IV. Judicial Notice

Plaintiff seeks judicial notice of the following:

• Exhibit A – Plaintiff’s complaint filed in this case on September 9, 2025;

• Exhibit B – Proofs of service of summons filed in this case on September 19, 2025, and September 25, 2025;

• Exhibit C – Plaintiff’s request for entry of default filed in this case on July 21, 2026;

• Exhibit D - Defendants’ opposition to Plaintiff’s ex-parte application for an order shortening the time for the hearing on Plaintiff’s motion for judgment on the pleadings and supporting declarations, filed in this case on July 17, 2026;

• Exhibit E – the Court’s minute order filed on July 10, 2026, regarding Defendants’ demurrer and motion to strike. Plaintiff’s Request for Judicial Notice as to Exhibits A-E is GRANTED IN PART.

Under Evidence Code Section 452 and 453, the Court can and does here take judicial notice of the existence of these judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but cannot and does not take judicial notice of the truth of hearsay statements in decision or court files, including pleadings, testimony, or statements of fact. (See, Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130, fn. 7, citing Gilmore v. Superior Court (1991) 230 Cal. App. 3d 416, 418.)

V. Analysis of Plaintiff’s Motion for Judgment on the Pleadings

Defendants contend that Plaintiff’s Motion fails since (1) it was filed prematurely, (2) it is procedurally defective due to Plaintiff’s failure to meet and confer, (3) their verified answer defeats the motion as a matter of law, and (4) it cannot be used to strike their verified answer. (Opposition at 6:12-11:16)

Plaintiff contends his motion should be granted because: (1) Defendants’ answer presents nothing to defeat the complaint and contains only false, defective, frivolous and irrelevant defenses; (2) Defendants’ late filed answer should be stricken and a default entered against them; and (3) Defendants admitted fault at the accident scene and through their insurance company. (Motion at 6:5-10:26). But Plaintiff’s arguments misapprehend the legal standard on a Motion for Judgment on the Pleadings, as the Court will now explain.

A. Plaintiff’s Motion was filed prematurely.

Code of Civil Procedure section 438(f) provides that a plaintiff’s motion for judgment on the pleadings may be brought only after the time for demur to the answer has expired. Under Code of Civil Procedure section 430.40, “a party who has filed a complaint or cross-complaint must file and serve a demurrer to an answer within 10 days after service of the answer.” (Code. Civ. Proc. §430.40(b).)

Plaintiff filed his original motion for judgment on the pleadings on July 17, 2026, which was three days before Defendants’ deadline to file their answer and five days before the answer was filed on July 22, 2026. Plaintiff amended his motion on August 6, 2026, three days after the time for a demurrer to the answer had lapsed. Both the original motion and the amended motion are based on the argument that Defendants’ answer presents no viable defense.

Plaintiff’s original Motion is clearly premature under Code of Civil Procedure

section 438(f). Even if the Court is to evaluate the timeliness of the motion based on the filing date of the amended motion – which was properly filed after the 10-day demurrer period lapsed – the Motion still fails for lack of merit.

B. Plaintiff failed to Meet and Confer in good faith with Defendants before filing this Motion.

Defendants contend that Plaintiff failed to properly meet and confer before filing the instant Amended Motion. According to Defendants’ declarations, after the demurrer hearing Plaintiff sent an email on July 11, 2026, requesting a telephonic meet-and-confer without explaining the basis for his contemplated motion. When defense counsel called Plaintiff on July 13, 2026, at his listed number, Plaintiff responded via text message stating, “[d]on’t contact my family, don’t contact me.” (Kim Decl., ¶¶ 11-13) No further meet-and-confer occurred before Plaintiff filed his second motion on July 17, 2026. (Kim Decl., ¶ 18; Ball Decl., ¶ 6)

Code of Civil Procedure section 439(a) requires the moving party to meet and confer in good faith with the opposing party prior to filing a motion for judgment on the pleadings. That did not happen here. However, as Defendants themselves note, failure or insufficiency of the meet and confer process does not provide grounds to grant or deny the motion. (See Code. Civ. Proc. § 439(a)(4).) Nonetheless, Plaintiff is now on notice that a good faith meet and confer is generally required prior to filing of any motion. The failure to do so in this instance may be taken into consideration in any future request for sanctions if there is a repeated failure by Plaintiff to follow this rule.

C. Plaintiff’s Request for Default and to Strike the Answer is Denied.

Plaintiff argues that the court should strike Defendants’ answer as untimely and enter default judgment. But this argument fails because even a late-filed pleading serves to preclude the taking of default; default is only considered “entered” once the court clerk has signed the entry. The court clerk rejected Plaintiff’s July 21, 2026, request for entry of default due to filing defects. Defendants’ answer was filed on July 22, 2026, before any default was entered. The Answer therefore defeats any subsequent request for default. (See, Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 863)

Furthermore, Plaintiff’s motion is denominated as a motion for judgment on the pleadings under Code of Civil Procedure section 438, not a motion to strike under section 436. While section 436 authorizes the court to strike pleadings not filed in conformity with law, Plaintiff has not established that the two-day delay warrants the drastic remedy of striking the Answer. Courts exercise discretion in determining whether to strike latefiled pleadings; here, the Court considers that Defendants have been actively participating in the litigation, including successfully demurring to one cause of action.

Taking all these facts and circumstances into account, and in the broad exercise of its discretion, the Court DENIES Plaintiff’s request for default and to strike the Answer.

D. Defendants’ Answer raises issues of material fact that cannot be resolved on the pleadings.

Motions by a plaintiff for judgment on the pleadings are the equivalent of a demurrer to an answer. As such, the Court will assume the truth of all facts properly pleaded in the Answer and will disregard the controverted allegations of the Complaint. Such a motion must be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense. (Engine Manufacturers Assn. v. State Air Resources Bd., (2014) 231 Cal. App. 4th 1022, 1034; internal citation omitted.)

Here, Defendants’ Verified Answer, filed July 22, 2026, denies essential elements of Plaintiff’s negligence claim and therefore raises material factual issues that preclude judgment as a matter of law. The Answer specifically denies that Defendants were negligent, that Plaintiff was harmed as a result of any negligence, and that any alleged negligence was a substantial factor in causing Plaintiff’s alleged harm. Defendants have not only denied liability but also factual allegations underlying Plaintiff’s claim, including the extent of his injuries, whether Defendants’ insurance company agreed to compensate him, and whether any such agreement created enforceable duties. (Answer at 2:5- 4:12) Those denials put at issue the core elements of negligence: duty, breach, causation, and damages.

Under California law governing plaintiff motions for judgment on the pleadings, all factual allegations in the defendant’s answer must be treated as true. (Stella, supra, 8 Cal.App.5th at 190-191.) Therefore, the Answer’s denials create disputed facts that cannot be resolved at the pleading stage without evidence.

Beyond denying material allegations, Defendants assert 43 separate affirmative defenses in their answer. While not all 43 defenses may ultimately prove meritorious, several raise substantial legal and factual issues that cannot be resolved on the pleadings alone. For instance Defendants assert failure to mitigate damages (Seventh Affirmative Defense), waiver and estoppel (Eighth Affirmative Defense), and that the incident was an unavoidable accident (Sixteenth Affirmative Defense). Each of these defenses requires factual findings that cannot be made and resolved based solely on the pleadings.

Additional defenses include lack of standing (Sixth Affirmative Defense), lack of causation (Nineteenth Affirmative Defense), assumption of risk (Twenty-Second and Thirtieth Affirmative Defenses), and spoliation of evidence (Thirty-Fourth Affirmative Defense). While Plaintiff’s Declaration attempts to dispute these defenses factually, the Court DECLINES to consider Plaintiff’s Declaration for purposes of this Motion because Plaintiff’s Declaration is improper extrinsic evidence.

Defendants also raise defenses specific to the employment context and vehicle operation, including that liability is limited under Vehicle Code sections 17150 and 17151 (Thirty-Sixth Affirmative Defense), that the driver was properly trained and licensed (Thirty-Fifth Affirmative Defense), and that Plaintiff may have violated Vehicle Code section 21955 (Forty-First Affirmative Defense). These statutory defenses involve mixed questions of law and fact requiring evidentiary development, which cannot be resolved on the pleadings.

Indeed, the California Court of Appeal has made clear that where the answer, fairly construed, suggests that the defendant may have a good defense, a motion for judgment on the pleadings should not be granted. (Engine Manufacturers Assn., supra, 231 Cal. App. 4th at 1034.).

Accordingly, for all these reasons, and in the broad exercise of its discretion, the Court DENIES Plaintiff’s Motion for Judgment on the Pleadings.

VI. Conclusion & Order

Plaintiff Adedayo Abioye’s Motion for Judgment on the Pleadings in favor of Plaintiff and against Defendants Abraham Chapa and Vortex Industries, LLC, is DENIED.

SO ORDERED.

Date: September 2, 2026

Vincent I. Parrett Judge of the Superior Court of California, County of Santa Clara

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