Preview
To: Page 54 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department
FILED BY FAX
1 wilh PK (S N ALAMEDA COUNTY
ham P. Keane (State
Bar No.124756)
wkeane@fbm.com May 21,2020
2 ||Erik C. Olson (State Bar No. 260452) CLERK OF
eolson@fbm.com THE SUPERIOR COURT
3 || Nadia C. Arid (State Bar No. 312626) Ry Milagros Cortes;Pepuly
narid@fbm.com FEL EG CASE NuMBER:
4 || FarellaBraun + Martel LLP Superior Court of Califernia HG20053286
235 Montgomery Street, 17" Floor County of Placer
5 || San Francisco, California 94104
Telephone: (415) 954-4400 AUG 03 2020
Facsimile:
acsimile
: (415)
(415) 954-4480
wn
Jake Chatters
won
Executive Officer & Clerk
Attorneys for Defendant JBR, INC. By: M. Anderson, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
Oo
10 COUNTY OF ALAMEDA
ll §CV 0045284
12 || PLASTIKON, INC., a California corporation, Case No. HG20053286
13 Plaintiff, ASSIGNED FOR ALL PURPOSES TO
JUDGE STEPHEN PULIDO, DEPT. 17
14 vs.
DEFENDANT JBR, INC.’S NOTICE OF
15 || JBR, INC., dba ROGERS FAMILY DEMURRER AND DEMURRER TO
COMPANY and dba SAN FRANCISCO BAY | PLAINTIFF’S COMPLAINT
16 || GOURMET COFFE; PETER ROGERS, an
individual; and DOES |-100, Hearing Date: June 29, 2020
17 Hearing Time: 1:30 p.m.
Defendant.
18 Hearing Reservation Number: R-2177543
19
Action Filed: February 4, 2020
20
21
22
23
24
25
26
27
28
235 Montgomcry Street i7* Floor 38455\132901
86.1
San Fraaciseo,
Califirnia 94104
sees JBR, INC.’S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT —Case No. HG20053286
~ To: Page 55 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department
| NOTICE OF DEMURRER
2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
3 PLEASE TAKE NOTICE THAT at 1:30 p.m. on June 29, 2020, or as soon thereafter as
4 ||counsel may be heard, in the courtroom of the Honorable Stephen Pulido, Dept. 17 of the Court,
5 || located at24405 Amador Street, Hayward, CA, Defendant JBR INC. (“Defendant”) shallbring for
6 || hearing its Demurrer to Plaintiff's Complaint filedby Plaintiff PLASTIKON INC.
7 Defendant’s Demurrer is and will be based on this Notice, the Demurrer, the Memorandum
8 ||of Points and Authorities in Support of Demurrer, the Declaration of Erik C. Olson in Support of
9 || Demurrer, the pleadings and papers on file inthis action, and such other matters as may be
10 ||presented prior to or at the hearing on the Demurrer.
it In compliance with Code of Civil Procedure 430.41, counsel for all parties held a
12 ||telephone conference on March 19, 2020 to discuss the grounds for thisdemurrer but could not
13 || reach an agreement to resolve the objections to the complaint. Olson Decl. § 3.
14 DEMURRER
15 Demurrer to First Cause of Action
- (Breach of Contract)
17 1. JBR demurs to the First Cause of Action because the complaint does not state facts
18 ||sufficient to constitute a cause of action forbreach of contract. See Code Civ. P. § 430,10(e).
19 2. JBR demurs to the First Cause of Action because the pleading is uncertain. See
20 || Code Civ. P. § 430.10(f).
21 3. JBR demurs to the First Cause of Action because itcannot be ascertained from the
22 || pleading whether the contract is written, is oral, or is implied by conduct. See Code Civ. P.
23 ||§ 430.10(g).
24 4. JBR demurs to the First Cause of Action because the complaint’s allegations reveal
25 ||the existence of the affirmative defense of the statute of frauds. Gentry v.eBay, Inc., 99 Cal. App.
26 ||4th 816, 824 (2002); see also Code Civ. P. § 430.30(a).
27
28
Fareiia Braan + Martel
LLP
] 38455\13290186.1
JBR, INC.’S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT — Case No. HG20053286
To: Page 56 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department
| Demurrer to Second Cause of Action
; (Misappropriation of Trade Secrets)
: 5. JBR demurs to the Second Cause of Action because the complaint does not state
facts sufficient to constitute a cause of action for trade secret misappropriation. See Code Civ. P.
4
§ 430.10(c).
5
Demurrer to Third Cause of Action
6 (Fraud)
7 6. JBR demurs to the Third Cause of Action as preempted by itsSecond Cause of
8 || Action for Misappropriation of Trade Secrets because the complaint’s allegations reveal it isbased
9 |] onthe same nucleus of facts as the Second Cause of Action. See K.C. Multimedia, Inc. v. Bank of
10 || Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939, 958-62 (2009); see also Code Civ. P. §
11 |] 430.30(a).
12 7. JBR demurs to the Third Cause of Action because the complaint does not state
13 ||facts sufficient to constitute a cause of action for fraud. See Code Civ. P. § 430.10(e).
14 8. JBR demurs to the Third Cause of Action as deficient because the complaint’s
15 ||allegations reveal it ispled as an alternative cause of action to a deficient contract cause of action.
16 || Conrad v. Bank of Am., 45 Cal. App. 4th 133, 156-57 (1996); see also Code Civ. P. § 430.30(a).
17 Wherefore, JBR prays that the Court sustain its demurrer as to allcauses of actions stated
18 |] inthe complaint.
19
20 || Dated: May 20, 2020 FARELLA,BRAUN + MARTEL LLP
ge
21 Af
“fF £4
ted.Py oe
2 By: fe Use RL
Erik C. Olson
23
Attorneys forDefendant JBR, INC.
24
25
26
27
28
2 38455\13290186.1
293enor et Fl
“sees JBR ING’ S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT — Case No. HG20053286
Preview
To: Page 54 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department FILED BY FAX 1 wilh PK (S N ALAMEDA COUNTY ham P. Keane (State Bar No.124756) wkeane@fbm.com May 21,2020 2 ||Erik C. Olson (State Bar No. 260452) CLERK OF eolson@fbm.com THE SUPERIOR COURT 3 || Nadia C. Arid (State Bar No. 312626) Ry Milagros Cortes;Pepuly narid@fbm.com FEL EG CASE NuMBER: 4 || FarellaBraun + Martel LLP Superior Court of Califernia HG20053286 235 Montgomery Street, 17" Floor County of Placer 5 || San Francisco, California 94104 Telephone: (415) 954-4400 AUG 03 2020 Facsimile: acsimile : (415) (415) 954-4480 wn Jake Chatters won Executive Officer & Clerk Attorneys for Defendant JBR, INC. By: M. Anderson, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA Oo 10 COUNTY OF ALAMEDA ll §CV 0045284 12 || PLASTIKON, INC., a California corporation, Case No. HG20053286 13 Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE STEPHEN PULIDO, DEPT. 17 14 vs. DEFENDANT JBR, INC.’S NOTICE OF 15 || JBR, INC., dba ROGERS FAMILY DEMURRER AND DEMURRER TO COMPANY and dba SAN FRANCISCO BAY | PLAINTIFF’S COMPLAINT 16 || GOURMET COFFE; PETER ROGERS, an individual; and DOES |-100, Hearing Date: June 29, 2020 17 Hearing Time: 1:30 p.m. Defendant. 18 Hearing Reservation Number: R-2177543 19 Action Filed: February 4, 2020 20 21 22 23 24 25 26 27 28 235 Montgomcry Street i7* Floor 38455\132901 86.1 San Fraaciseo, Califirnia 94104 sees JBR, INC.’S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT —Case No. HG20053286 ~ To: Page 55 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department | NOTICE OF DEMURRER 2 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE THAT at 1:30 p.m. on June 29, 2020, or as soon thereafter as 4 ||counsel may be heard, in the courtroom of the Honorable Stephen Pulido, Dept. 17 of the Court, 5 || located at24405 Amador Street, Hayward, CA, Defendant JBR INC. (“Defendant”) shallbring for 6 || hearing its Demurrer to Plaintiff's Complaint filedby Plaintiff PLASTIKON INC. 7 Defendant’s Demurrer is and will be based on this Notice, the Demurrer, the Memorandum 8 ||of Points and Authorities in Support of Demurrer, the Declaration of Erik C. Olson in Support of 9 || Demurrer, the pleadings and papers on file inthis action, and such other matters as may be 10 ||presented prior to or at the hearing on the Demurrer. it In compliance with Code of Civil Procedure 430.41, counsel for all parties held a 12 ||telephone conference on March 19, 2020 to discuss the grounds for thisdemurrer but could not 13 || reach an agreement to resolve the objections to the complaint. Olson Decl. § 3. 14 DEMURRER 15 Demurrer to First Cause of Action - (Breach of Contract) 17 1. JBR demurs to the First Cause of Action because the complaint does not state facts 18 ||sufficient to constitute a cause of action forbreach of contract. See Code Civ. P. § 430,10(e). 19 2. JBR demurs to the First Cause of Action because the pleading is uncertain. See 20 || Code Civ. P. § 430.10(f). 21 3. JBR demurs to the First Cause of Action because itcannot be ascertained from the 22 || pleading whether the contract is written, is oral, or is implied by conduct. See Code Civ. P. 23 ||§ 430.10(g). 24 4. JBR demurs to the First Cause of Action because the complaint’s allegations reveal 25 ||the existence of the affirmative defense of the statute of frauds. Gentry v.eBay, Inc., 99 Cal. App. 26 ||4th 816, 824 (2002); see also Code Civ. P. § 430.30(a). 27 28 Fareiia Braan + Martel LLP ] 38455\13290186.1 JBR, INC.’S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT — Case No. HG20053286 To: Page 56 of 92 2020-05-21 13:00:26 PDT 14155209707 From: Facsimile Department | Demurrer to Second Cause of Action ; (Misappropriation of Trade Secrets) : 5. JBR demurs to the Second Cause of Action because the complaint does not state facts sufficient to constitute a cause of action for trade secret misappropriation. See Code Civ. P. 4 § 430.10(c). 5 Demurrer to Third Cause of Action 6 (Fraud) 7 6. JBR demurs to the Third Cause of Action as preempted by itsSecond Cause of 8 || Action for Misappropriation of Trade Secrets because the complaint’s allegations reveal it isbased 9 |] onthe same nucleus of facts as the Second Cause of Action. See K.C. Multimedia, Inc. v. Bank of 10 || Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939, 958-62 (2009); see also Code Civ. P. § 11 |] 430.30(a). 12 7. JBR demurs to the Third Cause of Action because the complaint does not state 13 ||facts sufficient to constitute a cause of action for fraud. See Code Civ. P. § 430.10(e). 14 8. JBR demurs to the Third Cause of Action as deficient because the complaint’s 15 ||allegations reveal it ispled as an alternative cause of action to a deficient contract cause of action. 16 || Conrad v. Bank of Am., 45 Cal. App. 4th 133, 156-57 (1996); see also Code Civ. P. § 430.30(a). 17 Wherefore, JBR prays that the Court sustain its demurrer as to allcauses of actions stated 18 |] inthe complaint. 19 20 || Dated: May 20, 2020 FARELLA,BRAUN + MARTEL LLP ge 21 Af “fF £4 ted.Py oe 2 By: fe Use RL Erik C. Olson 23 Attorneys forDefendant JBR, INC. 24 25 26 27 28 2 38455\13290186.1 293enor et Fl “sees JBR ING’ S NOTICE OF HEARING RE DEMURRER TO PLASTIKON’S COMPLAINT — Case No. HG20053286