On February 03, 2017 a
Motion-Secondary
was filed
involving a dispute between
Capital Equity Management Group Inc,
and
Brenda Gillum,
Carter, Mary Rose,
Carter, William Keith,
Castleberry, George,
Castleberry, Richard,
Clements, Jamee Lynn,
Clements, Rick,
George Castleberry,
Gillum, Brenda,
Jamee Lynn Clements,
Kenneth A Swanger,
Mark Tillotson,
Mary Rose Carter,
Norcal Redevelopment Corp,
Northcutt, Richard,
Northern California Investments Lp,
Richard Castleberry,
Richard Northcutt,
Rick Clements,
Steven A Swanger,
Swan Construction,
Swanger, Kenneth A,
Swanger Properties Llc,
Swanger, Steven A,
Swan Investments Inc,
Tillotson, Mark,
William Keith Carter,
for Fraud: Unlimited
in the District Court of Stanislaus County.
Preview
Dyer Law Firm
Michael J. Dyer, #109297
2 Dustin J. Dyer, #274308
5250 Claremont Ave, Ste. 119
3 Stockton, CA 95207
Telephone: (209) 472-3668
4 Facsimile: (209) 472-3675
Email: ddvcra’iiidvcrlawtimmom
McCormick, Barstow, Sheppard, Electronically Filed
Wayte & Carruth LLP 3/17/2021 4:53 PM
D. Greg Durbin, #81749 Superior Court of California
are 0. durbin if?mcc0rn i ickbursio w. '0”:
I.
County of Stanislaus
Scott J. lvy, #197681
Clerk of the Court
smu. {via-"iii";r2(rcarmickharxtcm:mm
Paul R. Gaus, #319979 By: Christine Zulim, Deputy
pum’. gill/{$5613IIICL'UI‘HIic'hUI‘A'ffl11‘.(‘01?!
7647 North Fresno Street
10 Fresno,. California 93720
Telephone: (559) 433-1300
11 Facsimile: (559) 433-2300
12 Attorneys for Plaintiff
Capital Equity Management Group, Inc.
l3
14 SUPERIOR COURT OF THE STATE OF CALIFORNIA
15 COUNTY OF STANISLAUS
16 CAPITAL EQUITY MANAGEMENT Case No. 2023519
GROUP, INC .,
l7 03.! EC'I‘ IONS T0 REQUEST FOR
Plaintiff, JUDICIAL NOTICE TO DEFENDANTS’
18 DEMURRER TO PLAINTIFF ’S SECOND
v. AMENDED COMPLAINT AND EACH
19 DEFENDANT‘S JOINDER TO SAID
STEVEN A. SWANGER, ct al., DEMURRER.
20
Defendants. Hearing Date: April 1, 2021
21 Hearing Time: 8:30 am.
Judge: Hon. John R. Mayne
22 Dept.: 21
23
24
25
26
27
28
OBJECTION TO REQUEST FOR JUDICIAL NOTICE
Plaintiff CAPITAL EQUITY MANAGEMENT GROUP, INC. ("CEMG" or "Plaintiff‘)
hereby objects to Defendants‘ Consolidated Request for Judicial Notice of certain documents
pursuant to Evidence Code Section 452(d).
Global Obiection to Reguest for Judicial Notice Exhibits 1-11
4567009
Plaintiff objects to each of the documents that Defendants seek judicial notice of under
Evidence Code Section 452(d) on the grounds that the "facts" which Defendants seek judicial notice
of from these documents are: ( l) disputed facts that are not subject to judicial notice under Evidence
Code Section 452( d) for purposes ofa Dcmurrer or a Motion to Strike; (2) inadmissible hearsay;
and (3) not properly authenticated.
10 Defendants seek to completely ignore the well-established standards governing demurrers
11 by attempting to argue their interpretation of a parade of "facts" that appear nowhere in the SAC,
12 under the guise of j udicial notice of "court records" pursuant to Evidence Code Section 452(d). (See
13 Defendants' Request for Judiciai Notice in support of Demurrer). Defendants' also seek, again a!
14 the pleading stage, a de-facto summary adjudication of some of the properties at issue by offering
15 these same "facts" as somehow supporting an ill-conceived and unsupported demurrer to several of
16 the properties referenced in Exhibit A to the SAC.
l7 In addition to "facts" from unverified pleadings from other litigation (RJN, Exhibit 1, 5), the
18 "facts" from "court records" that Defendants ask the Court tojudicially notice under Section 452(d)
l9 include indictments (RJN, Exhibit 2, 3), Ajury verdict form (RJN Exh. 4); the factual basis summary
20 from a plea agreement from another defendant in another criminal action (RJN, Exh 6); oral
21 argument in a criminal action. (RJN, Exh. 7); subpoenas (RJN, Exh. 8, 9); and pleadings filed in a
22 separate criminal action (RJN, Exh. 10, 11).
23 The "facts" which Defendants seek to draw from these documents represent nothing more
24 than Defendants' mischaracterization and/or interpretation of disputed facts and hearsay statements
25 referenced in other litigation. That some may appear in "court records" does not render Defendants'
26 interpretation or extrapolation of these facts judicially noticeable in this action pursuant to Evidence
27 Code Section 452(d).
28 Although the existence of a document in a court file may bejudicially noticeable, "the truth
1
OBJECTION TO REQUESTS FOR JUDICIAL NOTICE T0 DEFENDANTS’ DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT
of statements contained in the document and its proper interpretation are not subject to judicial
notice if those matters are reasonably disputable." Freeman! Indem. C0. v.Fremont General Corp.
(2007) 148 Cal.App.4th 97, 113. "Takingjudicial notice of a document is not the same as accepting
the truth of its contents or accepting a particular interpretation of its meaning. On a demurrer a
court's function is limited to testing the legal sufficiency of the complaint. A demurrer is simply not
of disputed facts." (citations omitted) Id. at ll3-
67009
the appropriate procedure for determining the truth
114. "The hearing on demurrer may not be turned into a contested evidentiary hearing
through the guise of having the court take judicial notice of documents whose truthfulness or
proper interpretation are disputable." 1d. at 114.
10 "For a court to take judicial notice of the meaning of a document submitted by a demurring
ll party based on the document alone, without allowing the parties an opportunity to present extrinsic
12 evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore
13 cannot take judicial notice of the proper interpretation of a document submitted in support of the
14 demurrer. (citations omitted). In short, a court cannot by means of judicial notice convert a
15 demurrer into an incomplete evidentiary hearing in which the demurring party can present
"
16 documentary evidence and the opposing party is bound by what that evidence appears to Show. Id.
17 at l 14-115.
18 Courts have specifically applied these principals to preclude attempts to turn demurrers
19 regarding the sufficiency of claims in a pending action into contested evidentiary hearings based
20 upon disputes over the interpretation and application of factual allegations in complaints from past
21 actions. Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658—660.
22 The Court in Richtek USA held that while it may be proper for the court to have takenjudicial
23 notice of earlier foreign complaints, ”it was not proper to use the allegations in those complaints to
24 resolve factual disputes for purposes of the demurrer in this case. " Id. p. 659-660. "When judicial
25 notice is taken of a document, however, the truthfulness and proper interpretation of the document
26 are disputable." 1d. at 660. Thus, the Court in Richtek USA concluded:
27 Here, the trial court did not take notice of the existence of the complaints; rather, it
used the complaints to resolve the disputed issue of when appellants had knowledge
28 of of trade secrets for purposes of statute! of
rcspondents' misappropriation
2
OBJECTION TO REQUESTS FOR JUDICIAL NOTICE TO DEFENDANTS‘ DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT
1234567009 limitations. The allegations in the amended complaint. which we must accept as
true for purposes of evaluating a demurrer. state that appellants learned of specific
misappropriations in 2009. 2010. and 20] l. This is contrary to the allegations in
the Taiwanese complaints. In sustaining respondents' demurrer, the trial court
used the allegations in the Taiwan complaints to conclude that appellants had
knowledge o/‘respondents' misappropriation in 2007, and as such, appellants'
claims in this case were time-barred. This was improper. " Id. at. 660.
Judicial notice of matters upon demurrer will be dispositive "only in those instances where
there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed."
ld. Defendants' mischaracterization or interpretation of the host of "facts" pulled from various other
litigation do not fall within that narrow window. Instead. at best. they reference significant factual
disputes that should not and cannot be decided at the pleading stage. As summarized above. courts
10
have long barred end runs around the established standards for ruling on a demurrer under the guise
ll
of judicial notice of disputed facts contained in "court records" under Evidence Code Section 452(
12
d).
13
This Court should sustain CEMG's objections and disregard the "facts" that Defendants
l4
assert based upon the contents for other court proceedings that are included with their request to
15
take judicial notice.
16
Dated: March l6. 202] DY
l7
18 Bv
l9 in J Dyer
Attorneys for Plaintiff.
20 Inc.
Capital Equity Management Group,
21
22
23
24
25
26
27
28
3
OBJECTION TO REQUESTS FOR JUDICIAL NOTICE TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S
SECOND AMENDED COMPLAINT
Preview
Dyer Law Firm Michael J. Dyer, #109297 2 Dustin J. Dyer, #274308 5250 Claremont Ave, Ste. 119 3 Stockton, CA 95207 Telephone: (209) 472-3668 4 Facsimile: (209) 472-3675 Email: ddvcra’iiidvcrlawtimmom McCormick, Barstow, Sheppard, Electronically Filed Wayte & Carruth LLP 3/17/2021 4:53 PM D. Greg Durbin, #81749 Superior Court of California are 0. durbin if?mcc0rn i ickbursio w. '0”: I. County of Stanislaus Scott J. lvy, #197681 Clerk of the Court smu. {via-"iii";r2(rcarmickharxtcm:mm Paul R. Gaus, #319979 By: Christine Zulim, Deputy pum’. gill/{$5613IIICL'UI‘HIic'hUI‘A'ffl11‘.(‘01?! 7647 North Fresno Street 10 Fresno,. California 93720 Telephone: (559) 433-1300 11 Facsimile: (559) 433-2300 12 Attorneys for Plaintiff Capital Equity Management Group, Inc. l3 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA 15 COUNTY OF STANISLAUS 16 CAPITAL EQUITY MANAGEMENT Case No. 2023519 GROUP, INC ., l7 03.! EC'I‘ IONS T0 REQUEST FOR Plaintiff, JUDICIAL NOTICE TO DEFENDANTS’ 18 DEMURRER TO PLAINTIFF ’S SECOND v. AMENDED COMPLAINT AND EACH 19 DEFENDANT‘S JOINDER TO SAID STEVEN A. SWANGER, ct al., DEMURRER. 20 Defendants. Hearing Date: April 1, 2021 21 Hearing Time: 8:30 am. Judge: Hon. John R. Mayne 22 Dept.: 21 23 24 25 26 27 28 OBJECTION TO REQUEST FOR JUDICIAL NOTICE Plaintiff CAPITAL EQUITY MANAGEMENT GROUP, INC. ("CEMG" or "Plaintiff‘) hereby objects to Defendants‘ Consolidated Request for Judicial Notice of certain documents pursuant to Evidence Code Section 452(d). Global Obiection to Reguest for Judicial Notice Exhibits 1-11 4567009 Plaintiff objects to each of the documents that Defendants seek judicial notice of under Evidence Code Section 452(d) on the grounds that the "facts" which Defendants seek judicial notice of from these documents are: ( l) disputed facts that are not subject to judicial notice under Evidence Code Section 452( d) for purposes ofa Dcmurrer or a Motion to Strike; (2) inadmissible hearsay; and (3) not properly authenticated. 10 Defendants seek to completely ignore the well-established standards governing demurrers 11 by attempting to argue their interpretation of a parade of "facts" that appear nowhere in the SAC, 12 under the guise of j udicial notice of "court records" pursuant to Evidence Code Section 452(d). (See 13 Defendants' Request for Judiciai Notice in support of Demurrer). Defendants' also seek, again a! 14 the pleading stage, a de-facto summary adjudication of some of the properties at issue by offering 15 these same "facts" as somehow supporting an ill-conceived and unsupported demurrer to several of 16 the properties referenced in Exhibit A to the SAC. l7 In addition to "facts" from unverified pleadings from other litigation (RJN, Exhibit 1, 5), the 18 "facts" from "court records" that Defendants ask the Court tojudicially notice under Section 452(d) l9 include indictments (RJN, Exhibit 2, 3), Ajury verdict form (RJN Exh. 4); the factual basis summary 20 from a plea agreement from another defendant in another criminal action (RJN, Exh 6); oral 21 argument in a criminal action. (RJN, Exh. 7); subpoenas (RJN, Exh. 8, 9); and pleadings filed in a 22 separate criminal action (RJN, Exh. 10, 11). 23 The "facts" which Defendants seek to draw from these documents represent nothing more 24 than Defendants' mischaracterization and/or interpretation of disputed facts and hearsay statements 25 referenced in other litigation. That some may appear in "court records" does not render Defendants' 26 interpretation or extrapolation of these facts judicially noticeable in this action pursuant to Evidence 27 Code Section 452(d). 28 Although the existence of a document in a court file may bejudicially noticeable, "the truth 1 OBJECTION TO REQUESTS FOR JUDICIAL NOTICE T0 DEFENDANTS’ DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable." Freeman! Indem. C0. v.Fremont General Corp. (2007) 148 Cal.App.4th 97, 113. "Takingjudicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is simply not of disputed facts." (citations omitted) Id. at ll3- 67009 the appropriate procedure for determining the truth 114. "The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable." 1d. at 114. 10 "For a court to take judicial notice of the meaning of a document submitted by a demurring ll party based on the document alone, without allowing the parties an opportunity to present extrinsic 12 evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore 13 cannot take judicial notice of the proper interpretation of a document submitted in support of the 14 demurrer. (citations omitted). In short, a court cannot by means of judicial notice convert a 15 demurrer into an incomplete evidentiary hearing in which the demurring party can present " 16 documentary evidence and the opposing party is bound by what that evidence appears to Show. Id. 17 at l 14-115. 18 Courts have specifically applied these principals to preclude attempts to turn demurrers 19 regarding the sufficiency of claims in a pending action into contested evidentiary hearings based 20 upon disputes over the interpretation and application of factual allegations in complaints from past 21 actions. Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658—660. 22 The Court in Richtek USA held that while it may be proper for the court to have takenjudicial 23 notice of earlier foreign complaints, ”it was not proper to use the allegations in those complaints to 24 resolve factual disputes for purposes of the demurrer in this case. " Id. p. 659-660. "When judicial 25 notice is taken of a document, however, the truthfulness and proper interpretation of the document 26 are disputable." 1d. at 660. Thus, the Court in Richtek USA concluded: 27 Here, the trial court did not take notice of the existence of the complaints; rather, it used the complaints to resolve the disputed issue of when appellants had knowledge 28 of of trade secrets for purposes of statute! of rcspondents' misappropriation 2 OBJECTION TO REQUESTS FOR JUDICIAL NOTICE TO DEFENDANTS‘ DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1234567009 limitations. The allegations in the amended complaint. which we must accept as true for purposes of evaluating a demurrer. state that appellants learned of specific misappropriations in 2009. 2010. and 20] l. This is contrary to the allegations in the Taiwanese complaints. In sustaining respondents' demurrer, the trial court used the allegations in the Taiwan complaints to conclude that appellants had knowledge o/‘respondents' misappropriation in 2007, and as such, appellants' claims in this case were time-barred. This was improper. " Id. at. 660. Judicial notice of matters upon demurrer will be dispositive "only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed." ld. Defendants' mischaracterization or interpretation of the host of "facts" pulled from various other litigation do not fall within that narrow window. Instead. at best. they reference significant factual disputes that should not and cannot be decided at the pleading stage. As summarized above. courts 10 have long barred end runs around the established standards for ruling on a demurrer under the guise ll of judicial notice of disputed facts contained in "court records" under Evidence Code Section 452( 12 d). 13 This Court should sustain CEMG's objections and disregard the "facts" that Defendants l4 assert based upon the contents for other court proceedings that are included with their request to 15 take judicial notice. 16 Dated: March l6. 202] DY l7 18 Bv l9 in J Dyer Attorneys for Plaintiff. 20 Inc. Capital Equity Management Group, 21 22 23 24 25 26 27 28 3 OBJECTION TO REQUESTS FOR JUDICIAL NOTICE TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT