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District Court of Appeal, Second District, Division 3, California.

Buddy Richard BARASCH, Plaintiff and Respondent, v. A. S. EPSTEIN, Defendant and Appellant.

Civ. 21783.

Decided: January 07, 1957

Samuel W. Blum, Irwin N. Fulop and Berne Rolston, Beverly Hills, for appellant. Benjamin P. Riskin, Los Angeles, for respondent.

Appeal by defendant from a judgment for plaintiff entered on the granting of his motion for judgment on the pleadings.

The action is for money alleged to be due plaintiff from defendant. The question is the sufficiency of the answer. A plaintiff may recover judgment on a motion for judgment on the pleadings only if his complaint states facts sufficient to constitute a cause of action and the answer neither raises a material issue nor states a defense. (21 Cal.Jur. 235, § 164.) We have concluded that the answer explicitly traverses various material allegations of the complaint and that it was error to grant the motion.

Material allegations of the complaint and the answers thereto are:

As a separate defense, defendant pleaded that the written agreement of May 7, 1951 should be interpreted so that his obligation as guarantor would mature and become operative only after the checks of the corporation, payable to plaintiff and drawn on Palestine Discount Bank, were first presented to and payment refused by the drawee bank; that plaintiff has failed to perform the conditions precedent to defendant's liability under the written instrument.

As a counterclaim defendant pleaded that on May 7, 1951 for a valuable consideration plaintiff executed to the corporation his promissory note for $5,000 payable September 1, 1951 without interest; as security for payment of the note plaintiff delivered to the corporation nine checks for 1,000 Israeli pounds each, payable on Palestine Discount Bank; the corporation assigned all its interest in the note and pledge to defendant; plaintiff has not paid any part of the note.

Judgment was for plaintiff for $7,000 and interest.

A motion by a plaintiff for judgment on the pleadings is in the nature of a general demurrer to the answer, and the motion must be denied if the answer raises a material issue or sets up affirmative matter constituting a defense. Such a motion does not operate as a special demurrer. Uncertainty and ambiguities must be specifically raised by proper procedure. MacIsaac v. Pozzo, 26 Cal.2d 809, 812–813, 161 P.2d 449; Fabbro v. Dardi & Co., 93 Cal.App.2d 247, 252 209 P.2d 91; Bergerow v. Parker, 4 Cal.App. 169, 172, 87 P. 248. 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. Patterson v. Pacific Indem. Co., 119 Cal.App. 203, 206–207, 6 P.2d 102. The moving party admits the untruth of his own allegations insofar as they have been controverted, and all such averments must be disregarded whether there is a direct and specific denial or an indirect denial by virtue of affirmative allegations of a contrary state of facts. MacIsaac v. Pozzo, 26 Cal.2d 809, 813, 161 P.2d 449; Osborne v. Abels, 30 Cal.App.2d 729, 730, 87 P.2d 404. Every allegation affirmatively pleaded in the answer must be deemed true. Cuneo v. Lawson, 203 Cal. 190, 193, 263 P. 530.

It appears from analysis of the complaint and answer that the only facts admitted by defendant cannot sustain the judgment. The denials of the answer are sufficient to, and do, create issues. Proof of the allegations of the complaint, which are denied, is necessary before plaintiff may recover judgment. Since the answer sets up a good defense and denies material allegations of the complaint, it is sufficient as against a general demurrer and plaintiff was not entitled to judgment on the pleadings.


VALLEÉ, Justice.

SHINN, P. J., and PARKER WOOD, J., concur.

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