SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 6, Honorable Theodore C. Zayner Presiding
Maggie Castellon, Courtroom Clerk
TBA, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: 5-16-17 TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
TROUBLESHOOTING TENTATIVE RULINGS
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LINE # CASE # CASE TITLE RULING

LINE 1 16CV298876 Basu v Sports Medical Control/Click Line 1 for tentative ruling.
Management, Inc.
LINE 2 16CV293376 Sohn v County of Santa Continued to 7/18/17 per stipulation and
Clara order.
LINE 3 16CV301166 RML Distribution Control/Click Line 3 for tentative ruling.
Domestic LLC v Netflix
LINE 4 2014-1-CV-271558 Bonhage v Rawson Control/Click Line 4 for tentative ruling.
LINE 5 2014-1-CV-271558 Bonhage v Rawson Control/Click Line 4 for tentative ruling.
LINE 6 2014-1-CV-271558 Bonhage v Rawson Control/Click Line 4 for tentative ruling.
LINE 7 2015-1-CV-286166 Vasquez v Bbbb Bonding Control/Click Line 7 for tentative ruling.
Corporation
LINE 8 2015-1-CV-286166 Vasquez v Bbbb Bonding Control/Click Line 7 for tentative ruling.
Corporation
LINE 9 15CV289384 Group One Construction, Motion to Consolidate with 16CV297739.
Inc v South County No Opposition. GRANTED. Consolidated
Drywall cases remain set for Trial Setting
Conference at 11 a.m. in D6.
LINE 10 16CV298399 Yee v Boucher Motion for leave to amend complaint is
DENIED, for failure to comply with Rule
of Court 3.1324(b). Proposed amended
complaint does not allege specific facts
beyond general negligence/premises
liability.
LINE 11 16CV298399 Yee v Boucher Motion to comply with discovery
responses is DENIED. Defendant has fully
complied in light of amended responses.
Calendar line 3

Case Name: RML Distribution Domestic, LLC v. Netflix, Inc.

Case No.: 16-CV-301166

I. Background

This action arises out of a dispute between plaintiff RML Distribution Domestic, LLC,
also known as Relativity, (Plaintiff) and defendant Netflix, Inc. (Defendant) over the
distribution and release of Plaintiffs films.

Plaintiff was one of the first film studios to allow Defendant to offer its films for
streaming on demand. (Compl., 1-9.) In 2010, the parties entered into a License Agreement
giving Defendant the right, upon specified terms and conditions, to exclusively stream certain
films produced by [Plaintiff]. (Compl., 20; see also Compl., Exh. A.) The parties agreed
Defendant would pay Plaintiff a licensing fee for each film streamed of at least $3.7 million but
not exceeding $20 million depending on the films box office performance. (Compl., 23-
24.) Plaintiff then relied on its right to payment of these licensing fees to obtain financing for
the production and distribution of its films. (Compl., 23.)

More specifically, the parties routinely executed a notice of assignment (NOA) for
each film to secure Plaintiffs right to the minimum licensing fee of $3.7 million, which it then
used as collateral for loans. (Compl., 24.) The parties specifically accounted for this lending
arrangement in the License Agreement, which requires Defendant to execute an NOA or other
necessary agreement when requested by Plaintiff for the purpose of obtaining financing.
(Compl., 22; see also Compl., Exh. A, 5.6.)

In July 2014, the parties executed an NOA for the film Masterminds (NOA1) and an
NOA for the film the Disappointments Room (NOA2) so Plaintiff could obtain financing
from two post production lenders, CIT Bank and UniFi. (Compl., 26.) In 2016, Plaintiff
asked Defendant to execute an amended NOA1 and NOA2 to extend the streaming date for the
films to account for the revised date of their theatrical release. (Compl., 30.) Plaintiff alleges
such amendments were customary and routine. (Compl., 30, 35.) Defendant refused and
insisted it could stream the films prior to their theatrical release, which was consistent with
recent posturing and public statements that it was abandoning the exclusive distribution model
and would instead stream films contemporaneously. (Compl., 27-29.)

Defendants conduct directly conflicted with the method for determining the licensing
fees, which was specifically based on each films performance in theaters. (Compl., 31.)
Plaintiff alleges Defendant essentially attempted to stream the films for free by doing an end
run around the theatrical release necessary to determine the licensing fees. (Compl., 32.)
According to Plaintiff, Defendants conduct breached the License Agreement, which required
it to execute agreements, such as an NOA or amendment thereto, as needed. (Compl., 34-
36.) Plaintiff also alleges Defendants conduct and public statements about a new business
model and the License Agreement effectively prevented it from obtaining investments and
financing because it no longer had guaranteed licensing fees to use as collateral. (Compl.,
 37-39.) Defendants conduct severely harmed Plaintiffs business such that it was forced to
consider acquisition offers. 3 (Compl., 40.)

Plaintiff asserts causes of action against Defendant for: (1) breach of contract; (2)
breach of the implied covenant of good faith and fair dealing; and (3) trade libel. Immediately
prior to the filing of the demurrer, the Court granted Defendants special motion strike and
dismissed the second and third causes of action. Thus, the sole remaining cause of action is the
first cause of action for breach of contract.

Currently before the Court is Defendants demurrer to the sole remaining cause of
action for breach of contract, which is accompanied by a request for judicial notice. For the
reasons set forth below, the demurrer is OVERRULED.

II. Grounds for Demurrer

First, Defendant states: The cause of action fails because it is barred by res judicata.
Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888 (2002); Levy v. Cohen, 19 Cal. 3d 165
(1977); Cal. Civ. Proc. Code 430.10(c) [sic]. (Dem. at p. 2:4-6.) Second, Defendant states:
The cause of action fails because it does not state facts sufficient to constitute a cause of
action. Cal Civ. Proc. Code 430.10(e) [sic]. (Dem. at p. 2:7-9.)

Defendants first purported ground for demurrer is not actually a statutory ground
enumerated in Code of Civil Procedure section 430.10. Nowhere in that statute does it state a
party may demur on the ground of res judicata. While Defendant cites Code of Civil Procedure
section 430.10, subdivision (c), it appears it simply cites this provision because it happened to
be cited in Mycogen Corporation v. Monsanto Company based on the particular facts of that
case, not because it is in fact the appropriate or intended ground for its demurrer. (See
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 895, fn. 4.)

To be sure, Code of Civil Procedure section 430.10, subdivision (c) authorizes a party
to demur on the ground [t]here is another action pending between the same parties on the
same cause of action. Although the applicability of the doctrine of res judicata depends on
similar considerations, this statutory provision does not authorize a demurrer on the ground of
res judicata. The statute authorizes what is known as a statutory plea in abatement because, if a
court concludes it is proper to sustain the demurrer, it may not order dismissal and instead must
abate or stay the second action pending termination of the first action. (Childs v. Eltinge
(1973) 29 Cal.App.3d 843, 856.) Defendant is seeking dismissal of this action, not a stay.
Consequently, it does not in fact appear Defendant intended to demur on this ground.

Additionally, because a plea in abatement is dilatory and disfavored, the demurrer is

only sustainable if the defendant shows: (1) That both suits are predicated upon the same
cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits
are contested by the same parties. [Citation]. (Conservatorship of Pacheco (1990) 224
Cal.App.3d 171, 176.) Given Defendants res judicata argument is based on the previous
bankruptcy action in federal court, it does not and cannot possibly argue the action is pending
in the same jurisdiction. (Gregg v. Superior Court (1987) 194 Cal.App.3d 134, 136 [federal
court is not the same jurisdiction].) Moreover, it is not apparent the bankruptcy action even

3
As discussed in more detail below, Plaintiff also underwent reorganization in federal bankruptcy court.
remains pending at this time. As a consequence, even assuming Defendant intended to demur
on the ground of another action pending, its demurrer is unsubstantiated.

If all of the facts necessary to show that an action is barred by res judicata are within
the complaint or subject to judicial notice, a trial court may properly sustain a general
demurrer. [Citation.] (Planning and Conservation League v. Castaic Lake Water Agency
(Castaic) (2009) 180 Cal.App.4th 210, 225.) Accordingly, Defendants res judicata
argument may be properly advanced in support of a demurrer on the ground of failure to state
sufficient facts. Because Defendant otherwise demurs on that ground, the Court will consider
Defendants res judicata argument in support thereof.

III. Request for Judicial Notice

Defendant requests judicial notice of four documents from Plaintiffs reorganization

proceedings conducted pursuant to Chapter 11 of the United States Code, including: (1) a
demand letter filed as an exhibit to a motion to shorten time; (2) an order implementing the
bankruptcy plan; (3) a transcript of the bankruptcy courts explanation of its decision; and (4)
an order from the United States District Court for the Southern District of New York affirming
the implementation order.

As with the grounds for its demurrer, it appears Defendant misunderstands some
aspects of judicial notice as well. For example, in its request, Defendant states it simply
resubmit[s] the documents here for the Courts convenience. (Request for Judicial Notice
(RJN) at p. 1:8-9.) Defendant previously filed these documents in support of its special
motion to strike. A special motion to strike, unlike a demurrer, is an evidentiary motion.
(See Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) For purposes of a
demurrer, however, a court may only consider the allegations in the pleading and matters
subject to judicial notice. (Code Civ. Proc., 430.30, subd. (a).) Thus, absent a request for
judicial notice, documents filed in support of some other motion are not necessarily within the
scope of what a court may consider for purposes of a demurrer. Defendants statement
reflecting it believes its request is unnecessary and that it may simply refer to documents filed
in support of unrelated motions is misguided.

Turning to the substance of its request, Defendant seeks judicial notice of the truth of
the contents of these records from the bankruptcy action. When a court takes judicial notice of
court records pursuant to Evidence Code section 452, subdivision (d), it takes judicial notice of
the existence of the records and any results reached, but not the truth of statements or findings
of fact therein. (Kilroy v. State (2004) 119 Cal.App.4th 140, 148-49; see also Richtek USA v.
uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.) For example, while an official
record of an appellate opinion can be admitted to prove the truth of the facts asserted, the most
it may prove is that the appellate opinion was delivered and that the court made orders, factual
findings, judgments and conclusions of law. [Citation.] (Kilroy v. State, supra, 119
Cal.App.4th at pp. 146-47.) A court cannot take judicial notice of the truth of statements in
documents simply because they are part of the court file. (Ibid.)

Accordingly, while the Court may take judicial notice of the fact that the bankruptcy
court issued a plan implementation order, explained this order on the record, and was
subsequently affirmed in its decision, the Court may not take judicial notice of the truth of
factual findings or statements in these documents or the contents of the private demand letter
simply filed in the course of the bankruptcy proceedings. For these reasons, and with the
proper scope of judicial notice in mind, Defendants request for judicial notice is DENIED as
to the demand letter and GRANTED as to the implementation order, explanation of the
implementation order, and order affirming the implementation order.

Finally, it is necessary to highlight that judicial notice is a means for accepting the truth
of a fact or point of law as undisputed without requiring formal proof. (Kilroy v. State, supra,
119 Cal.App.4th at p. 145.) Notably, too many attorneys dont understand judicial notice.
(Hsu v. Puma Biotechnology, Inc. (C.D.Cal. 2016) 213 F.Supp.3d 1275, 1277.) Some take
judicial notice literally as a command. (Ibid.) Hey! Judge! Look! (Ibid.) This is an
example of the improper use [of] judicial notice to get a courts attention like a businessman
whos running late and trying to whistle down a taxi on a crowded downtown street. (Ibid.)
On other occasions, attorneys use judicial notice to get a court to consider evidentiary matters
that arent appropriate for judicial notice, like emails between the parties counsel. (Ibid.)
While Defendants request is not wholly improper as reflected by the Courts conclusion
above, the record reflects it perhaps did not understand these distinctions. Given the
explanation above, there should no longer be any confusion on this subject.

IV. Discussion

Defendant argues Plaintiff fails to state a cause of action for breach of contract because
this cause of action is barred by the doctrine of res judicata and it cannot allege it suffered any
damages. These are the sole arguments advanced in support of the demurrer.

A. Res Judicata

Res Judicata describes the preclusive effect of a final judgment on the merits.
(Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 896.) The doctrine of res judicata
consists of two components, claim preclusion and issue preclusion. (Ibid.) [C]laim
preclusion, prevents relitigation of the same cause of action in a second suit between the same
parties or parties in privity with them. (Ibid.) Issue preclusion prevents relitigation of the
same issues but does not bar entire causes of action. (DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 824-25.) While the term res judicata is more frequently used and accepted as a
synonym for claim preclusion, it is often used imprecisely to refer to both claim preclusion and
issue preclusion. (Id. at p. 824.) Given Defendant asserts Plaintiffs entire claim is precluded,
the Court will follow the California Supreme Court and use the term claim preclusion
hereinafter instead of res judicata to ensure its ruling is abundantly clear. (Ibid.)

Claim preclusion applies when (1) the decision in the prior proceeding is final and on
the merits; (2) the present proceeding is on the same cause of action as the prior proceeding;
and (3) the parties in the present proceeding or parties in privity with them were parties to the
prior proceeding. [Citation.] (Castaic, supra, 180 Cal.App.4th at p. 226.) Defendant argues
Plaintiffs claim for breach of contract is precluded because it already asserted this claim and
obtained specific performance of the contract in the bankruptcy action. Defendants argument
is fundamentally unsupported and without merit because it does not clearly address the three
prerequisites for claim preclusion. The Court will, nevertheless, address the apparent bases for
its argument.
 For context, Plaintiff underwent reorganization pursuant to Chapter 11, which
proceedings necessarily involved Defendant and the parties License Agreement. In
proceedings under the reorganization provisions of the Bankruptcy Code, a troubled enterprise
may be restructured to enable it to operate successfully in the future. (U.S. v. Whiting Pools,
Inc. (1983) 462 U.S. 198, 203, citing 11 U.S.C. 1121-29 [Chapter 11].) During the
bankruptcy proceedings, a plan for the reorganization of the debtors assets and liabilities is
developed. (U.S. v. Whiting Pools, Inc., supra, 462 U.S. at pp. 203-04.) In creating this plan,
the bankruptcy court considers creditors claims, broadly defined as the right to receive
payment. (See 11 U.S.C. 101(5).) Thus, unlike in an ordinary civil lawsuit, the party
seeking judicial intervention does not commence proceedings by asserting particular causes of
action. (See Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 503.) Rather, the
debtor initiates bankruptcy proceedings generally by filing a petition and creditors may
thereafter present their claims; a claim may but need not be in the form of a legal claim or
judgment. (See Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 133; see also 11 U.S.C. 501.)

Given the fundamental nature of and procedures used in bankruptcy actions, it is

unclear, as a general matter, how Defendant can assert Plaintiff already litigated a claim for
breach of contract on the merits. Defendants assertion is also problematic for the following
reasons.

First, Defendant never actually identifies any claim in the bankruptcy action. While
Defendant cites general authority on Californias primary rights theory, it does not actually
explain or demonstrate how Plaintiff previously asserted a breach of contract claim or some
other claim that, while distinctly denominated, was based on the same primary right. Although
not cited by Defendant, there is authority to support the proposition that a bankruptcy courts
order allowing a particular claim may preclude a party from asserting the same claim in a
subsequent civil action. (See, e.g., Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1163.)
With that said, Defendant does not argue and there is no basis for concluding the bankruptcy
court allowed any breach of contract claim. Defendant thus does not adequately identify any
previous claim as a basis for its claim preclusion argument.

Second, while Defendant is apparently relying on its characterization of the

implementation order as an order of specific performance to demonstrate there was some
previous breach of contract claim, its characterization of the previous order is wholly
inaccurate. As a general matter, Defendant is correct that specific performance and damages
are simply two different remedies for a breach of contract claim. (Rogers v. Davis (1994) 28
Cal.App.4th 1215, 1218, fn. 2.) Nonetheless, the bankruptcy court did not order specific
performance of any contract thereby suggesting its order resolved some underlying breach of
contract claim. In actuality, the bankruptcy court simply issued an order implementing the
bankruptcy plan. In addition to ordering a debtor to carry out the bankruptcy plan, the
bankruptcy court may issue incidental orders and injunctions directing any other necessary
party to [ ] perform any other act [ ] that is necessary for the consummation of the plan. (11
U.S.C. 1142(b).) Pursuant to this statutory authority, the bankruptcy court also ordered
Defendant to take certain steps necessary for the consummation of the plan, including
refraining from streaming the films at issue prior to their theatrical release, in its
implementation order. Defendant does not explain and it is not obvious how this constitutes an
order of specific performance.
 Additionally, the bankruptcy court explicitly explained the general scope of its order to
Defendant by stating: And just to be absolutely clear, my [order] has nothing to do with
whether I think, contractually, the Debtors are entitled to them; it has everything to do with the
limits of what I see as my authority under section 1142(b) and is without prejudice to the
Debtors seeking such [relief] in other proceedings. (RJN, Exh. 4 at p. 32, italics added.)

Finally, Plaintiffs claim is based on the allegation Defendant breached the contract by
refusing to execute an amended NOA1 and NOA2. The bankruptcy court did not order
Defendant to execute these amended agreements. Thus, it did not in fact order Defendant to
perform. The bankruptcy court specifically stated: The request by [Plaintiff] and their
lenders, pursuant to Section 5.6 of the License Agreement, to compel [Defendant] to execute
new notices of assignment or amended notices of assignment that specify new dates for the
payment Minimum Guaranteed Amounts may be pursued in other courts. (RJN, Exh. 3 at
p. 3:5.) Accordingly, the bankruptcy court did not order specific performance in form or
substance.

In sum, Defendant does not demonstrate Plaintiffs breach of contract claim was
adjudicated in the bankruptcy action because it does not identify any previous claim, it is not
obvious such a claim was in fact adjudicated given the nature of the bankruptcy proceedings,
and the bankruptcy court emphatically did not order specific performance of the License
Agreement, including section 5.6 thereof. Defendants argument based on recycled assertions
already rejected by the Court is unmeritorious. The demurrer to the first cause of action is not
sustainable based on the doctrine of claim preclusion. 4

B. Damages

Plaintiff alleges it suffered damages throughout the complaint and seeks compensatory
and punitive damages. (Compl., 30-40.) In support of its demurrer, Defendant does not
actually take issue with the sufficiency of any of these allegations as pleaded. Defendant
attempts to prove Plaintiff cannot obtain three different types of damages. First, Defendant
argues Plaintiff cannot obtain damages for premature streaming of its films because it already
obtained specific performance in the bankruptcy court. (Mem. of Pts. & Auth. at p. 8:15.)
Second, Defendant argues Plaintiff lacks standing to complain about damages based on
payment of the License Fees, which were assigned to CIT Bank in 2014. (Mem. of Pts. &
Auth. at p. 8:18-19.) Third, Defendant argues Plaintiff cannot plausibly allege or rely on a
pie in the sky theory of indirect damages, because such damages are barred both by
California law and the Parties contract. (Mem. of Pts. & Auth. at p. 9:4-20.)

At the outset, it is well settled that a general demurrer admits the truth of all material
factual allegations in the complaint [citation]; that the question of plaintiffs ability to prove
these allegations, or the possible difficulty in making such proof does not concern the
reviewing court [citations]; and that plaintiff need only plead facts showing that he [or she]
may be entitled to some relief [citation]. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d

4
Additionally, the demurrer is not sustainable based on the doctrine of issue preclusion because Defendant does
not discuss that specific concept in its memorandum of points and authorities. While Defendant attempts to pivot
to the doctrine of issue preclusion for the first time in its reply, which thus need not be considered by the Court
out of fairness to Plaintiff, its argument lacks merit for the same reasons discussed above. (See Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 764 [courts disregard points raised for the first time in a reply brief].)
493, 496; see also Stanson v. Brown (1975) 49 Cal.App.3d 812, 814 [All allegations are taken
as true even though their proof appears unlikely.])

Accordingly, Defendants arguments concerning the plausibility or factual possibility

of Plaintiff recovering certain types of damages are misguided. Furthermore, while Defendant
identifies three types of damages Plaintiff purportedly cannot recover, it does not discuss the
allegations in the pleading or otherwise demonstrate these are in fact some or all of the
damages sought in the complaint. Thus, even if Defendants arguments were appropriately
advanced in support of the demurrer, they do not clearly support the conclusion that Plaintiff
cannot recover any damages. With that said, the Court will now address each argument
specifically.

Although not articulated with clarity, Defendant is apparently taking the position that
because the bankruptcy court ordered it not to prematurely release the films for streaming
before Plaintiff had an opportunity to release them in theaters, Plaintiff has no claim for
damages based on [its] alleged threat to release the films . . . . (Mem. of Pts. & Auth. at
p. 8:16.) The internal logic of this argument is unclear and Defendant does not explain or cite
any authority to support it. In general, it is conceivable that Plaintiff was not harmed by the
premature release of films if Defendant did not in fact release the films prematurely. With that
said, it does not necessarily or directly follow that any harm from the threat to do so, predating
the bankruptcy courts order, necessarily dissipated upon Defendants compliance with the
order not to stream them. Moreover, Defendant does not explain how this argument about an
injury based on premature streaming of the films is relevant to Plaintiffs breach of contract
claim based on the refusal to execute the amended NOA1 and NOA2. This argument therefore
lacks merit.

Second, Defendant argues Plaintiff cannot recover license fees because it assigned its
right to payment to CIT Bank in 2014. Once again, Defendant does not explain or support this
argument, which is directed to the truth of the allegations and not their sufficiency for pleading
purposes. Defendant does not demonstrate Plaintiff assigned its right to payment of all license
fees as compared to simply the $3.7 million minimum payment or that it otherwise assigned its
right to reimbursement for distribution expenses. Additionally, while Defendant mentions
standing in its argument heading, it does not actually discuss this concept. (Mem. of Pts. &
Auth. at p. 8:18-19.) There do not actually appear to be any standing issues. Defendants
argument thus does not support the conclusion the damages allegations are insufficient.

Next, Defendant argues Plaintiffs damages were not foreseeable because it could not
have foreseen, that at the time the parties entered [into] the License Agreement, [Plaintiff]
would enter bankruptcy and then, after reorganizing, initiate and publicly litigate a contract
dispute giving rise to publicity that allegedly causing [sic] [Plaintiff]s business to fail.
(Mem. of Pts. & Auth. at p. 9:20-23.) Defendants chronology mischaracterizes the allegations
in the pleading. Plaintiff alleges Defendants conduct prior to this litigation, not the publicity
surrounding this litigation, harmed its business. Defendants attempt to make Plaintiffs
damages appear attenuated by mischaracterizing the history of this case and the allegations is
not persuasive. Moreover, Defendant does not cite any authority to support the proposition
that it is appropriate to determine whether Plaintiffs damages were in fact foreseeable at the
pleading stage.
 Finally, as apparently related to its argument about foreseeability, Defendant asserts
Plaintiffs damages are disallowed as indirect or special damages. Defendant does not support
its assertion that Plaintiffs damages are special or indirect with an explanation or any legal
authority. Furthermore, Defendant misquotes the License Agreement as though it categorically
disallows such damages. (Mem. of Pts. & Auth. at p. 9:24-25.) Special and indirect damages,
inter alia, are allowed if they result from intentional misconduct, which is precisely the type of
conduct alleged in the complaint. (Compl., Exh. A, 7.6.) As a result, Defendant does not
substantiate its argument that Plaintiff seeks special or indirect damages or that such damages
are disallowed.

None of Defendants arguments are meritorious. As a consequence, the demurrer to the

first cause of action is not sustainable on the basis the damages allegations are insufficient.

C. Conclusion

The demurrer on the ground of failure to state sufficient facts is OVERRULED because
none of Defendants arguments are meritorious. While it appears Defendant did not actually
intend to demur on the additional ground there is another action pending, this ground is
identified in its demurrer. As stated above, Defendant does not demonstrate there is another
action pending justifying an abatement of the present action. Consequently, the demurrer on
the ground there is another action pending is also OVERRULED.

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