RAJ CHAMPANERI VS NEVADA DEPARTMENT OF TRANSPORTATION

Tentative Rulings

Case Number: 19STLC06498    Hearing Date: November 04, 2019    Dept: 94

Champaneri v. Nevada Dept. of Transportation, et al

JUDGMENT ON THE PLEADINGS

(CCP § 438)

TENTATIVE RULING:

Defendants Overland Pacific & Cutler LLC, Nevada Department of Transportation (“NDOT”), Kristina Swallow, Cole Mortensen, Jessica Biggin, Craig Reynoldson, and Rudy Malfabon’s Motion for Judgment on the Pleadings is GRANTED WITH 20 DAYS’ LEAVE TO AMEND SOLELY AS TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT AND DENIED AS TO THE SECOND CAUSE OF ACTION FOR COMMON COUNTS. THE COURT WILL NOT CONSIDER DEFENDANTS’ REQUEST FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.7 AT THIS TIME.

ANALYSIS:

Plaintiff Raj Champaneri (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendants Overland Pacific & Cutler LLC, Nevada Department of Transportation (“NDOT”), Kristina Swallow, Cole Mortensen, Jessica Biggin, Craig Reynoldson, and Rudy Malfabon (collectively “Defendant”) on July 15, 2019. Plaintiff filed the First Amended Complaint on July 23, 2019. The First Amended Complaint alleges that Plaintiff had an agreement whereby the NDOT would purchase his property and pay him $25,000.00 to reestablish his business, but thereafter denied his reimbursement claim.

On October 7, 2019, Defendants file the instant Motion for Judgment on the Pleadings. Plaintiff filed his opposition on October 15, 2019 and Defendants replied on October 24, 2019. The reply is accompanied by a meet and confer declaration. (Reply, Daube Decl.)

I. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

While a statutory motion for judgment on the pleadings brought pursuant to Code of Civil Procedure section 438, et seq. must be accompanied by a meet and confer declaration, there is no such requirement for a motion for judgment on the pleadings brought pursuant to the common law. (See Code Civ. Proc., § 439 (moving party must file declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed.)

II. Discussion

The allegations in the First Amended Complaint are minimal. The first cause of action for breach of contract simply states that Plaintiff had a written agreement with NDOT and Overland Pacific and Cutler LLC for reimbursement of reestablishment cost, that Defendants failed to pay as agreed and promised, and Plaintiff suffered damages of $25,000. (FAC, ¶¶BC-1, BC-2, BC-4.) The second cause of action for common counts similarly alleges that NDOT and Overland Pacific and Cutler LLC became indebted to Plaintiff for $25,000 based on a promise and agreement to reimburse his reestablishment costs. (Id. at ¶CC-1.)

Entire First Amended Complaint

Defendants move for judgment on the pleadings on the grounds that Plaintiff did not follow the administrative process for appealing the denial of his reimbursement claim. In support of this, Defendants request that the Court “take judicial notice of the official and legislative acts of the Nevada Department of Transportation (“NDOT”) with respect to Plaintiff, Raj Champaneri’s appeal rights regarding his dispute of relocation fees, for his property located at 601 Desert Lane, Las

Vegas Nevada 89106, as reflected in correspondence between Plaintiff and the NDOT. The request for judicial notice is granted pursuant to Cal. Evidence Code section 452, subdivision (c).

The correspondence demonstrates that the parties’ agreement with respect to relocation of the subject property is governed by the Uniform Relocation Act at Title 49 of the Code of Federal Regulations, section 24.304. (Motion, RJN, Exh. B; 49 CRF, § 24.304, subd. (a).) Defendants, however, have not shown that Plaintiff must exhaust administrative remedies before bringing the instant action. “Under the doctrine of exhaustion of administrative remedies, “the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Monterey Coastkeeper v. Monterey County Water Resources Agency (2017) 18 Cal.App.5th 1, 12 (citing Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292).) The moving papers offer no citation to legal authority demonstrating the application of administrative remedies to Plaintiff’s grievance. (Motion, p. 3:19-22.) Furthermore, the request for judicial notice demonstrates that Plaintiff did go through an appeals process with the NDOT. (Motion, RJN, Exhs. A-B.)

In their reply, Defendants cite to the Nevada Administrative Procedures Act for the proposition that “all appeals for contested cases are handled through the APA and any judicial review would be a matter for the State of Nevada Courts.” (Reply, p. 2:21-24.) Again, no valid legal authority is cited for this proposition, which relies solely on the declaration of the NDOT’s Executive Deputy Director, Cole Mortenson. The Court notes that the reply also seeks to introduce a new argument: that there is no private right of action under the Uniform Relocation Act. (Reply, p. 2:9-14.) As no notice of this argument was provided to Plaintiff, the Court declines to consider it.

The Motion for Judgment on the Pleadings as to the entire First Amended Complaint is DENIED.

1st Cause of Action for Breach of Contract

Defendants also move for judgment on the pleadings on the grounds that no written contract is attached to the First Amended Complaint, and that no such contract exists. The existence of the contract is a matter outside the four corners of the subject pleading and cannot be determined on a motion for judgment on the pleadings. The Court, however, does find that the written contract is not adequately pled. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) While it was not necessary for Plaintiff to attach the parties’ agreement or even state its terms verbatim, he must still set forth its terms in detail. The First Amended Complaint, merely alleging that Plaintiff had a written agreement with NDOT and Overland Pacific and Cutler LLC for reimbursement of reestablishment cost does not set forth all the provisions of agreement, including each party’s obligations.

The Motion for Judgment on the Pleadings as to the first cause of action for breach of contract is GRANTED with leave to amend.

2nd Cause of Action for Common Counts

The Motion does not address the second cause of action for common counts independently. Therefore, the Motion for Judgment on the Pleadings as to the second cause of action is DENIED.

Sanctions Under Code of Civil Procedure section 128.7

To the extent Defendants request fees and costs as a sanction under Code of Civil Procedure section 128.7, such a request must be made by a separate motion. (Code Civ. Proc., § 128.7, subd. (c)(1).) The Court will not consider the request at this time.

Court clerk to give notice.