TENTATIVE RULING

Defendant David Carter’s Demurrer to Complaint is SUSTAINED, without leave to amend.

Defendant David Carter shall prepare, serve, and submit a proposed judgment as per statute.

Defendant David Carter to give notice. 

REASONING

Request for Judicial Notice

Defendant David Carter (“Defendant”) requests judicial notice of the Court’s order granting Plaintiff Henry Shi (“Plaintiff”) leave to file a compulsory cross-complaint in Los Angeles Superior Court Case No. 20STCV02913 (Carter v. Zuma Partners), the cross-complaint in that action, and the complaint in the present action. Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Defendant also requests judicial notice of the proof of service for the cross-complaint in Case No. 20STCV02913 and the proof of service for the complaint in the present action. Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Code of Civil Procedure section 430.10, subdivision (c), allows a party to demur to a pleading where there is another action pending between the same parties on the same cause of action. Defendant demurs to this action in its entirety on the ground there is another action, Los Angeles Superior Court Case No. 20STCV02913 (Carter v. Zuma Partners), which involves the same parties, the same primary right, and the same causes of action asserted in the present action, such that there is another action pending between the same parties on the same causes of action.

Reference to the cross-complaint in Case No. 20STCV02913 shows that Plaintiff complains there of Defendant’s improper accessing of Plaintiff’s email, which caused Defendant to learn confidential information; the complaint here alleges the same conduct and seeks damages on the same basis. The parties are the same, and the ten causes of action are the same. Plaintiff argues that Case No. 20STCV02913 concerns a set of investments made by Zuma Partners, while the present action raises a wide array of issues and remedies extending beyond the scope of the case. Put simply, this is not evidence in the complaint here. Both actions are pending, and they involve the same parties, conduct, issues, and requested remedies.

The Court lacks a basis to conclude that this action differs in any meaningful way from the cross-complaint in Case No. 20STCV02913. Plaintiff’s reference to the discovery stay in Case No. 20STCV02913 does not provide a basis to allow two parallel actions to continue. Plaintiff also provides no grounds upon which the Court could grant him leave to amend the complaint because this deficiency cannot be cured by amendment. Accordingly, Defendant David Carter’s Demurrer to Complaint is SUSTAINED, without leave to amend. Defendant David Carter shall prepare, serve, and submit a proposed judgment as per statute.