Case Number: BC570654 Hearing Date: August 04, 2015 Dept: 34
Moving Party: Defendant Zachary Cube (“Cube” or “defendant”)

Resp. Party: Plaintiff Digirettes, Inc. (“plaintiff”)

Defendant’s demurrer is OVERRULED.

PRELIMINARY COMMENTS:

The court would remind counsel that a demurrer is based on the pleadings. In its opposition to the demurrer, plaintiff states that “plaintiff respectfully submits that persons willing to engage in tortious activity for financial gain are hardly motivated by legal niceties such as compliance with fictitious business name regulations. Thus, a reasonable possibility exists that Cube is responsible for the acts of which plaintiff’s complaint accuses him.” (Opposition, p. 4:2-4.) Such rhetorical flourishes are not helpful, they do not advance plaintiff’s cause, and they do not comport with the Los Angeles Superior Court’s or the L.A. County Bar’s Civility Guidelines.

BACKGROUND:

Plaintiff commenced this action on 1/27/15 against defendants for: (1) misappropriation of trade secrets; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) fraud; (5) intentional interference with prospective economic advantage; and (6) Business and Professions Code section 17200. Plaintiff alleges that it retained defendant Birnbaum as its sales representative, but then Birnbaum later attempted to sell plaintiff’s product as his own and has disparaged plaintiff and its principals.

On 4/8/15, plaintiff filed an amendment to the complaint adding defendant Cube dba Eliqcube as Doe 1.

ANALYSIS:

Defendant demurs to plaintiff’s complaint and the six causes of action contained therein on the grounds of failure to allege sufficient facts and uncertainty.

The instant demurrer is untimely. Demurrers must be made within 30 days after service of the complaint. (See Code Civ. Proc., §§ 430.40(a), 435(b)(1).) Defendant was served with the complaint by substituted service on 4/21/15. Therefore, defendant had until 5/31/15, at the latest, to respond. Defendant did not file the instant demurrer until 6/26/15. A court may still consider an untimely demurrer and motion in its discretion. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)

Even if the Court were to consider the demurrer, it would still be overruled. Defendant’s demurrer is based solely on the argument that he abandoned the use of the fictitious business name E-Liq Cube. In support of this argument, defendant improperly relies on extrinsic evidence. “ ‘A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.’ ” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. Accord McKenney v. Purepac Pharmaceutical Co. (2008) 162 Cal.App.4th 72, 79.) Though defendant provides a copy of a Statement of Abandonment, he does not request judicial notice of such. (See Cal. Rules of Court, rule 3.1113(l) [“Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”].) Moreover, even if the Court were to take judicial notice of the existence of this document, it would not take judicial notice of the truth of the statements made therein. (See Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569.) Finally, there is nothing in the complaint or a judicially noticed item suggesting that, even if defendant abandoned the fictitious name, he still cannot be liable for plaintiff’s claims.

Defendant’s demurrer is OVERRULED.