Demurrer; Motion to strike
Under the sham pleading doctrine, if a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447.)
The doctrine can also be invoked as against a party’s prior pleading in other cases. As set forth in Cantu v. Resolution Trust Corporation:
“Both trial and appellate courts may properly take judicial notice of a party’s earlier pleadings and positions as well as established facts from both the same case and other cases. The complaint should be read as containing the judicially noticeable facts, even when the pleading contains an express allegation to the contrary. A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false.
“The principle is that of truthful pleading. When the plaintiff pleads inconsistently in separate actions, the plaintiff’s complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer.”
(Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877–878 (internal citations omitted) (emphasis in original).)
Here, the complaint in the First Geraci Action does not specifically identify the domain names that were in dispute. Paragraphs 30 and 56 only reference the “website” or the “GERACI LLP website” without identifying the domain. (Defts. RJN, Exh. A, ¶¶ 30, 32, 56.) Further, the Geraci LLP involved in the first Geraci lawsuit was a California limited liability partnership, whereas the Geraci LLP involved in this case is an Arizona limited liability partnership. (Compare, Compl. ¶2 to Defts. RJN, Exh. A, ¶4.) Thus, they are not the same entities. There is thus no basis for the Court to conclude that the domain names at issue in both actions are the same.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Additionally, as Geraci LLP was only a defendant (not a plaintiff) in the First Geraci Action, even if it were the same entity, the sham pleading doctrine could not be invoked against it based on allegations that it did not plead in the prior complaint.
First Cause of Action (Intentional Interference with Prospective Economic Advantage) Defendants’ demurrer to the first cause of action for intentional interference with prospective economic advantage is SUSTAINED with leave to amend for uncertainty. It is impossible to tell from the allegations what each individual Defendant is alleged to have done.
Second Cause of Action (Fraud) For causes of action for intentional misrepresentation, each element must be pled with specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Plaintiffs’ pleading does not include allegations sufficient to meet this heightened pleading requirement.
Defendants’ demurrer to the second cause of action is SUSTAINED with leave to amend.
Third, Fourth, Fifth, Sixth, Seventh, and Tenth Causes of Action (Conversion, Theft, Trespass to Chattels, Slander of Title, Cal. Penal Code § 502, and Cal. Penal Code § 496) Defendants demur to the third through seventh and tenth causes of action on the grounds that Plaintiff cannot allege ownership of the domain. This argument is based on Defendants’ contention that the complaint in the First Geraci Action pled that Plaintiffs herein did not own the domain name at issue in this action. For the reasons discussed above, the Court does not make that finding.
Accordingly the demurrer to the third through seventh and tenth causes of action is OVERRULED.
Ninth Cause of Action (Intentional Interference with Contractual Relations) “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3)defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 (internal citations omitted).)
Here, Plaintiffs do not deny that they have not pled a contractual relationship.
Accordingly, the demurrer to the ninth cause of action is SUSTAINED with leave to amend.
Eighth Cause of Action (Unfair Competition (Bus. & Prof. Code § 17200))
Defendants contend that the eighth cause of action for unfair competition fails because Plaintiffs fail to allege any unlawful, unfair or fraudulent business practices with particularity against each of the Defendants. Further, Defendants contend that the pleading does not allege any injury or damage because Plaintiffs cannot claim ownership in the underlying websites and domains.
“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)
Plaintiffs have not met the particularity requirements. The complaint only contains conclusory allegations that “Defendants engaged in unlawful, unfair, and fraudulent business practices, including the conduct alleged herein, such as redirecting the Domains to create false affiliations and consumer confusion.” (Compl. ¶ 45.)
The demurrer to the eighth cause of action is SUSTAINED with leave to amend.
Eleventh Cause of Action (Trademark Infringement) Defendants contend that the eleventh cause of action for trademark infringement fails because the complaint in the First Geraci Action alleged that Geraci’s former partners were using the subject intellectual property without authorization; therefore, Plaintiffs herein cannot assert that the same intellectual property (the domain name) is being redirected by Defendants.
As discussed above, the Court is unable to find, based on the sham pleading doctrine, that the domain name in this case was also the subject of the First Geraci Action.
The demurrer to the eleventh cause of action is OVERRULED.
Twelfth Cause of Action (Breach of Fiduciary Duty) In California, “[t]he elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)
Here, Plaintiffs have alleged that “BRITECITY, LLC, previously provided IT services to Plaintiffs or related entities, during
which time they gained access to and knowledge of the Domains, including registration details, redirects, and associated digital infrastructure. This relationship imposed fiduciary duties on Defendants to act in Plaintiffs’ best interests regarding the Domains.” (Compl. ¶ 11.)
Defendants contend that, based on the complaint in the First Geraci Action, Defendants provided IT services to the California entity; and not to either of the Plaintiffs in this action. Therefore, Defendants contend, there was no fiduciary relationship.
The Court declines to find that the allegations of the complaint in the First Geraci Action preclude a finding that Defendants herein provided IT services to Plaintiffs herein.
The demurrer to the twelfth cause of action is OVERRULED.
Defendants’ request for judicial notice of the Complaint in the first Geraci action is GRANTED pursuant to Evid Code §452(d).
Plaintiffs’ request for judicial notice is DENIED as immaterial to the disposition of these motions.
Motion to Strike
Defendants move to strike the following portions of the Complaint:
• Paragraph 18 (p. 4:17): “Defendants' actions were willful, malicious, and oppressive, warranting punitive damages.”
• Prayer for Relief (p. 8:14): “For punitive and exemplary damages;”
The motion to strike is GRANTED with leave to amend. For the reasons discussed above, Plaintiffs have failed to plead fraud. Further, there are no factual allegations to support malice or oppression.
Plaintiffs shall have 20 days leave to amend.
Defendants to give notice. 205 Bank of America, N.A. vs. Alves, 25-01474865 Defendant Jacqueline D. Alves moves to set aside the entry of default against defendant and co-trustee James J. Alves pursuant to Code of Civil Procedure section 473(b) and (d).
As an initial matter, the Court notes that Jacqueline has submitted this motion on behalf of James because James is currently out of the state. However, Jacqueline is not a licensed attorney. Ordinarily, one party acting in pro per may
not represent another party in that action and an attempt to do so would constitute the unauthorized practice of law. (J.W. v. Superior Court (1993) 17 Cal.App.5th 958, 966.) However, the Court notes that Jacqueline and James are spouses who have both been served as defendants. Code of Civil Procedure section 371 provides: “If spouses are sued together, each may defend for his or her own right, but if one spouse neglects to defend, the other spouse may defend for that spouse's right also.” The Court finds that because James is currently out of state and has not acted on his own behalf in defense of this action, that Jacqueline’s submission of the instant motion on his behalf is not improper. However, Jacqueline is admonished that future attempts to represent James in this action where he has not neglected to defend himself may be unauthorized.
The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for an order for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)
Here, on September 29, 2025, Jacqueline filed an ex parte application for extension of time to serve an answer or other responsive pleading. That application was granted on October 2, 2025 and the Court ordered that a pleading must be served and filed no later than January 14, 2026. Default was entered against James upon the mistaken belief that the Court’s October 2 order related to James’s deadline to file a responsive pleading as well as Jacqueline’s. The instant motion was timely filed shortly after the default was discovered.
Based on the above, the Court finds that the default was entered as a result of mistake. The motion to set aside is therefore GRANTED. James is ORDERED to file an answer or other responsive pleading within 20 days.
The Case management Conference is continued to September 24, 2026 at 1:30 p.m.
Defendant to give notice. 206 Hoshour vs. Montgomery, 24-01392447 Plaintiffs David Guy Hoshour and Wensun Chen seek an order compelling Defendant Annelise Montgomery to provide further responses to Request for Production of Documents, Set 1 on October 11, 2025. (ROA 60)
Plaintiffs also seek an order compelling responses to Form Interrogatories, Set One served on Defendant on October 11, 2025. (ROA 68)