Demurrer CLMCal. Super. - 2nd Dist.July 27, 2020123 Judge SUPERIOR COURT OF CALIFORNIA, TENTATIVE RULINGS EVENT DATE: EVENT TIME: VENTURA DIVISION October 22, 2020 10/28/2020 08:20:00 AM DEPT.: 40 COUNTY OF VENTURA JUDICIAL OFFICER: Mark Borrell CASE NUM: CASE CATEGORY: EVENT TYPE: CASE TITLE: CASE TYPE:Civil - Unlimited Breach of Contract/Warranty 56-2020-00543686-CU-BC-VTA CALIFORNIA PHARMACEUTICALS LLC VS. WELLS FARGO BANK NA Demurrer (CLM) - to Complaint CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/22/2020 stolo The following is a statement of the court's tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell's secretary, Denise Arreola, at 805-477-5894, stating that you submit on the tentative. A copy of the telefax must be sent to all opposing parties contemporaneous with transmission to the court. Please include the hearing date, the case name and case number on your telefax. Do not call in lieu of sending a telefax, nor should you call to see if your telefax has been received. If you submit on the tentative without appearing and the opposing party appears, the hearing will be conducted in your absence. Plaintiff, a limited liability company, has sued Defendant, a bank, contending that Defendant wrongfully refused to allow Plaintiff to make withdraws on its account. In this demurrer, Defendant contends that it was ordered to "freeze" Plaintiff's account by the Superior Court for the County of Los Angeles ("LASC"). For the reasons stated below the court finds Defendant's contention cannot be sustained on demurrer. Request for Judicial Notice Defendant's request for judicial notice of two LASC court orders and the Amendment to Articles of Organization filed with the Secretary of State is GRANTED. (See Evid. Code, § 452, subds. (c), (d), & (h).) Discussion Defendant does not dispute the facts alleged in the complaint. Rather, the demurrer is predicated on facts not found in the complaint. To that end, Defendant has requested, and the court has granted, judicial notice of the documents described in the preceding paragraph. The LASC orders operate to prohibit any person/entity from "[t]ransferring," "disposing of," or "encumbering" any interest in bank accounts either that are expressly identified in the orders or are within the "dominion or control" of identified persons. Defendant does not contend that Plaintiff's account is one specifically identified in the orders. Rather, one of the persons identified in the orders is Terry Luke and, as Defendant states in its moving papers, "Terry Luke was the authorized signer" on Plaintiff's account with Defendant. The defect in Defendant's demurrer is that this fact - Terry Luke was an authorized signer on Plaintiff's account with Defendant - is neither alleged in the complaint nor revealed in the documents judicially noticed. Defendant seems to believe this void is filled by the Amendment to Articles of Organization filed with the Secretary of State. But Terry Luke's name does not appear anywhere on that document. The only person named in the amendment is Edgar Lozano. Defendant brings this demurrer in defiance of the most basic rule affecting demurrers: "A demurrer tests the pleading alone; a court cannot sustain a demurrer on the basis of extrinsic matter not appearing on the face of the pleading except for matters subject to judicial notice." (Jamulians Against the Casino v. Iwasaki (2012) 205 Cal.App.4th 632.) The demurrer is overruled. Defendant is ordered to file an answer only by November 12, 2020. TENTATIVE RULINGS Page: 1
