A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D AKERMAN LLP JOSHUA R. MANDELL (SBN 225269) HALEY C. GREENBERG (SBN 307475) 601 West Fifth Street, Suite 300 Los Angeles, California 90071 Telephone: (213) 688-9500 Facsimile: (213) 627-6342 Email: Joshua.mandell@akerman.com haley.greenberg@akerman.com ELECTRONICALLY FILED Superior Court of California, County of San Diego 07/29/2020 at 02:50:00 Fi Clerk of the Superior Court By Jessica Pascual, Deputy Clerk Attorneys for Defendant OUT WEST RESTAURANT GROUP, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO IHEARTMEDIA + ENTERTAINMENT, INC, a NEVADA corporation dba iHeartMEDIA, Plaintiff V. OUT WEST RESTAURANT GROUP, INC, a California corporation fka Cerca Trova Restaurant Concepts, Inc. and dba Cerca Trova Restation Concepts and dba Cerca Trova RC and dba Outback Steakhouse and dba Outback Steak House; and DOES 1 through 10, inclusive, Defendants Case No. 37-2020-00019491-CU-BC-CT Assigned for all purposes to the Hon. Ronald F. Frazier DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT Date: January 15, 2021 Time: 8:30 a.m. Dept.: 65 Complaint Filed: June 9, 2020 Trial Date: None TO ALL PARTIES HEREIN AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on January 15, 2021 at 8:30 a.m., or as soon thereafter as this matter may be heard in the courtroom of the Honorable Ronald F. Frazier, located at 330 W. Broadway, Room 225, San Diego, CA 92101, Defendant Out West Restaurant Group, Inc. (“Defendant") will and hereby does demurrer to Complainant iHeartMEDIA ("Plaintiff) unverified Complaint (“Complaint”). Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D This demurrer is based on Code of Civil Procedure § 430.10, this notice of demurrer, the memorandum of points and authorities, all matters of which the Court may take judicial notice, all pleadings, records and files in this action, and such evidence and argument as may be presented at or before the hearing. DATED: July 29, 2020 By: AKERMAN LLP 4 / Ve ( - \ ¢ V/ | - x bT/ = F Joshua R. Mandell Haley C. Greenberg Attorneys for Defendants, OUT WEST RESTAURANT GROUP, INC 2 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D DEMURRER Defendant Out West Restaurant Group, Inc. (“Defendant”) demurs specially as follows: DEMURRER TO THE FIRST CAUSE OF ACTION (Breach of Written Contract) The first cause of action does not state facts sufficient to constitute a cause of action. CCP § 430.10(e). WHEREFORE, Defendant prays: 1. That the Court sustain the demurrer without leave to amend, or in the alternative, with leave to amend. 2. For Defendant’s costs of suit, including reasonable attorneys’ fees incurred herein; and 3. For such other relief as the Court may deem just and appropriate. DATED: July 29, 2020 AKERMAN LLP By: Zia << 2, Pip Joshua R. Mandell Haley C. Greenberg Attorneys for Defendants, OUT WEST RESTAURANT GROUP, INC 3 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff asserts four causes of action in its Complaint: 1) Breach of Written Contract; 2) Quantum Meruit; 3) Open Book Account; and 4) Breach of Accord Agreement. At its core, Plaintiff's action rests on an alleged written agreement to provide Defendant Out West Restaurant Group, Inc. (“Defendant”) with various radio advertisements. The sum total of Plaintiff's pleading of the essential terms of the written agreement is "Plaintiff would perform advertising and media services for Defendants and would send invoices to Defendants and Defendants would pay Plaintiff for same." Plaintiff does not provide any details regarding the schedules or duration of the advertising and media services, the type of advertising and media services, the amount and schedule for payments, or which payments Defendants allegedly failed to make. Plaintiff therefore fails to state a claim for breach of written contract. Defendants respectfully request that this court grant its demurrer without leave to amend, or in the alternative, with leave to amend. III. ARGUMENT A. Legal Standard A demurrer is proper where the complaint fails to state “facts sufficient to constitute a cause of action.” (Cal. Civ. Proc. Code § 430.10(e).) To survive a demurrer, a plaintiff must demonstrate that his factual allegations establish all essential elements of the alleged causes of action. (Rakestraw v. Cal. Physicians’ Serv. (2000) 81 Cal.App.4th 39, 42.) A plaintiff is required to set forth the “essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source, and extent of his cause of action.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App.4th 592, 608, internal citations omitted; see also Zumbrun v. Univ. of S. Cal. (1972) 25 Cal.App.3d 1, 8 [the “purpose of a complaint is to furnish the defendants with certain definite charges which can be intelligently met . . . the point is that the accuser must place his finger squarely and directly upon whatever dereliction is relied upon by [plaintiff]”].) In ruling on a demurrer, doubt in the complaint may be resolved against the plaintiff and facts not alleged in the complaint are presumed not to exist. (Kramer v. Inuit Inc. (2004) 121 1 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D Cal.App.4th 574, 578; see also Melikian v. Truck Ins. Exch. (1955) 133 Cal.App.2d 113, 115 citing Feldsman v. McGovern (1941) 44 Cal. App. 2d 566, 571 [“[T]he presumptions are always against the pleader, and all doubts are to be resolved against him, for it is to be presumed that he stated his case as favorably as possible to himself; if a fact necessary to the pleader’s cause of action is not alleged it must be taken as having no existence.”].) B. Plaintiff Fails To State A Claim For Breach Of Written Contract “If [an] action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452,459.) CACI 303 is consistent with this requirement, stating that a plaintiff must set forth the conditions specifically required by the contract. Plaintiff alleges breach of a written contract without setting forth the terms in any fashion and without attaching the alleged agreement for incorporation by reference. Plaintiff does not provide any details regarding the schedules or duration of the advertising and media services, the type of advertising and media services, the amount and schedule for payments, or which payments Defendants allegedly failed to make. Plaintiff merely states that Defendants "breached the Agreement by failing and refusing to make payment pursuant to said Agreement" and that "the principal amount of $720,477.10 remains due." (Complaint, § 8.) Without setting forth the terms of the agreement and the specific manner of breach, Plaintiff has failed to "acquaint [ |] defendant with the nature, source, and extent of [its] cause of action." (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608, internal citations omitted.) Defendants cannot respond to empty allegations of breach without notice of the basic facts allegedly supporting Defendants’ breach. These missing facts should be presumed not to exist. (Kramer v. Inuit Inc. (2004) 121 Cal. App.4th 574, 578.) Plaintiff has failed to state a claim for breach of written contract, and the Court should grant Defendants’ demurrer without leave to amend, or in the alternative, with leave to amend. IV. CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Court sustain the 2 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D demurrer without leave to amend, or in the alternative, with leave to amend. DATED: July 29, 2020 AKERMAN LLP rg AN ( By: a Joshua R. Mandell Haley C. Greenberg Attorneys for Defendants, OUT WEST RESTAURANT GROUP, INC 3 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to this action. My business address is 601 W. Fifth Street, Suite 300, Los Angeles, CA 90071. On July 29, 2020, I served the following document(s) described as: DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAIN on the persons below as follows: Attorney Party Allan C. Herzlich Attorneys for Plaintiff Jerome J. Blum iHEARTMEDIA + ENTERTAINMENT, Inc. Marta Roza HERZLICH & BLUM LLP 27240 Turnberry Lane Suite 200 Valencia, California 91355 Phone: (818) 783-8991 BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, California, on that same day following ordinary business practices. (C.C.P. § 1013 (a) and 1013a(3)) Ol BY FACSIMILE: I caused said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was (213) 627-6342. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The document was transmitted by facsimile transmission, and the sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error. a BY ELECTRONIC SERVICE: Complying with Code of Civil Procedure § 1010.6, I caused such document(s) to be electronically served on the party identified and no error was received when transmitted. My electronic business address is [E-mail Address]. a BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e)) Ol BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). 4 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT A K E R M A N L L P 60 1 W E S T F I F T H S T R E E T , S U I T E 30 0 LO S AN GE LE S, CA LI FO RN IA 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 ND N D ND N N N N Y m = m m em = e s 0 9 ni RA W D , O D N R E W I N D Ol (CM/ECF Electronic Filing): I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). “A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e- mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se.” (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 0 (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on July 29, 2020 at Los Angeles, California. Lorna Hatch /s/Lorna Hatch Type Name Signature 5 Case No. 37-2020-00019491-CU-BC-CT DEFENDANT OUT WEST RESTAURANT GROUP, INC.'S NOTICE OF DEMURRER; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT
