Ervin v. The Cary Beck Land Trust

Filed 3/14/06 Ervin v. The Cary Beck Land Trust CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Jon M. Mayeda, Judge. Affirmed.

Roland Ervin, in propria persona, for Appellant.

No appearance for Defendants and Respondents.

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This is an appeal from entry of judgment in favor of defendants Cary Beck Land Trust, William Little, Freda Wycoff, and Kenneth Yeager, on appellant Roland Ervin's complaint, after those defendants moved for judgment on the pleadings.

We begin with the facts and procedures, and at appellant's request take judicial notice of the Superior Court's file in this matter.

For a time, appellant worked for the Cary Beck Land Trust as a security guard or caretaker of premises located at 1538 Cassil Place in Los Angeles, or in some similar capacity. The job entitled him to live rent free at the premises. In January of 2002, the Trust terminated appellant's employment and served him with a notice to quit. Later that month, the Trust filed an unlawful detainer action.

In July 2003, appellant filed suit against the Trust, Wycoff, and others, bringing causes of action for breach of contract, intentional tort, fraud, perjury, and common counts. The complaint made numerous factual allegations, including the allegation that appellant was owed money for work he performed to maintain and improve the property and the allegation that various defendants committed perjury during the unlawful detainer proceeding and during proceedings before the Labor Commissioner. Appellant sought compensatory and exemplary damages. Yeager and William Little were added as defendants at a later date.

In October of 2004, the Trust, Little, Wycoff, and Yeager moved for judgment on the pleadings, contending that the complaint failed to state a cause of action as to each cause of action. The trial court granted the motion.

Essentially, appellant makes three arguments on this appeal:

Appellant first argues that the moving defendants had no standing to bring the motion on the pleadings, because they had previously defaulted. The record is replete with requests for entry of default. In some instances default was entered, but only concerning defendants other than those defendants who moved for judgment on the pleadings. (These include Johanna Little-Beck and the Estate of Robert C. Beck. We cannot discern the state of the case as to those defendants, but note that appellant later added the Estate of Johanna Little-Beck as a Doe defendant, or sought to.) As to the moving defendants, there is only one default, that of Wycoff, and that default was set aside in May of 2004. Thus, these defendants had standing to bring their motion for judgment on the pleadings.

Appellant next argues that the motion was not timely because the matter had been set for trial and the defendants had announced ready. We see nothing in this argument which would indicate that the trial court erred. "A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]" (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.)

Finally, appellant alleges that the judgment was procured by extrinsic fraud. In this argument, he again argues that the motion was not timely and was made by defendants in default, and contends that their representations to the contrary were fraudulent. As we have seen, appellant cannot prevail on those arguments.

In this context, appellant also argues that he stated a cause of action as to each cause of action and contends that defendants' statements to the contrary are fraudulent.

In support of this argument, appellant notes only the complaint is on Judicial Council forms. Appellant did use those forms, but use of the forms is not in and of itself sufficient. He makes no other argument which would establish that the trial court erred in finding that no cause of action was stated, and we can see none. The judgment is thus affirmed.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J. KRIEGLER, J.

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