Case Number: 13K17039    Hearing Date: July 29, 2014    Dept: 77

Defendants Spring Street Investments, LLC and Gregory A. Brazzel’s Demurrer to Plaintiff’s Complaint is OVERRULED. CCP §430.10(e).

Defendant’s request for judicial notice is granted in part. The Court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the U.S. (Evid. Code § 452(d).) However, judicial notice of other court records and files is limited to matters that are indisputably true. This generally means that judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein. The court cannot accept as true the contents of pleadings or exhibits in another action just because they are part of the court record or file. Such documents are inadmissible hearsay. Accordingly, defendant’s request is granted as to Exhibit B and D only. The request is denied as to Exhibits A and C. No Exhibit A is provided, and Exhibit C is already part of this court’s case file. The content of the matters in Exhibit D, however, are of limited value, as they are open to interpretation.

The defense of res judicata, involving identity of the cause of action and the parties, usually requires the pleading of facts in the answer. But if all of the facts showing that the action is barred are set forth in the complaint, it is subject to general demurrer. The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.

This demurrer is overruled. In this case, the moving party has not made a sufficient showing that this action is barred. It is not clear from the face of the pleading, or from matters outside the pleading that are judicially noticeable, that this action is barred. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311. No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). The small claims action was not brought by the plaintiff in this case, and in any event the record is not “sufficiently clear to permit [the court] to determine” that the current claims are precluded by the judgment there. Bailey v. Brewer (2011), 197 Cal. App. 4th 781, 791.

Moving party to give notice.

Plaintiff Sky Business Center, LLC’s Motion for Sanctions Per CCP § 128.7 is DENIED. CCP § 128.7.

The requests for judicial notice were dealt with previously in the demurrer. However, by way of opposition, defendants have also sought judicial notice of additional documents filed in Case No. 13W00975. These documents are replete with contested statements. Defendants’ request for judicial notice is denied.

Sanctions under CCP § 128.7 are not designed to be punitive in nature but rather to promote compliance with statutory standards of conduct. Sanctions under CCP § 128.7 are discretionary. The court is not required to impose a monetary sanction or any sanction at all. CCP § 128.7 is not designed as a fee-shifting provision or to compensate innocent litigants. Its primary purpose is to deter sanctionable conduct: “A sanction imposed for violation … shall be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated.” (CCP § 128.7(d); see Trans-Action Comm’l Investors, Ltd. v. Jelinek (1997) 60 Cal.App.4th 352, 368.)

Here, this motion is denied. In this case, it cannot be said that the demurrer has been brought for an improper purpose. Accordingly, sanctions are denied.

Moving party to give notice.