Alex Pananides et al vs Hamish Marshall et al

Case Number

23CV02089

Case Type

Hearing Date / Time

Fri, 01/24/2025 - 10:00

Nature of Proceedings

Demurrer and Motion to Strike; CMC

Tentative Ruling

(1)       For the reasons set forth herein, the demurrer of defendants to plaintiffs’ third amended complaint is overruled.

(2)       For the reasons set forth herein, the motion of defendants to strike the first cause of action alleged in plaintiffs’ third amended complaint is denied.

(3) On or before February 7, 2025, defendants shall file and serve their answer to plaintiffs’ third amended complaint.

Background:

On May 12, 2023, plaintiffs Alex Pananides, individually (Pananides) and as trustee of the Alexander Nicholas Pananides Trust Dated October 31, 1979 (the Pananides Trust) (collectively, the Pananides Parties), PFH Holdings, LLC (PFH), Patrick Smith, individually (Smith) and as trustee of the Patrick N. Smith Revocable Living Trust Dated January 30, 1995, and the Patrick N. Smith 2004 Living Trust U/T/D October 7, 2004, Restated October 6, 2009 (the Smith Trust) (collectively, the Smith Parties), SLO Holdings, LLC (SLO Holdings), and SFH 2000 Trust, LLC (SFH Trust), (collectively, Plaintiffs) filed their original complaint in this action. The original complaint asserted causes of action for breach of contract and for implied indemnity arising out of the construction and financing of a hotel project.

On July 21, 2023, without any response having been filed, Plaintiffs filed their first amended complaint (FAC). The FAC asserts three causes of action: (1) breach of contract (Contribution and Indemnity Agreement); (2) breach of contract (FATCO Indemnity Agreement); and (3) implied indemnity.

On September 1, 2023, defendant Hamish Marshall, individually and as trustee of the Hamish S. Marshall and Julia Marshall 2003 Trust, Dated July 31, 2000, filed a demurer to the FAC. (Note: Defendant Marshall is sued in two capacities. The court refers to Marshall in his individual capacity as “Marshall” and in his capacity as trustee as “Marshall Trust.” The court refers to Marshall in both capacities (or where the particular capacity is not identified) as “Defendant.”) Plaintiffs opposed the demurrer

On November 21, 2023, Defendant filed a motion for a protective order seeking to stay the deposition of Defendant until all pleadings are at issue, which was also opposed by Plaintiffs.

On November 29, 2023, Plaintiffs filed their motion for leave to file a second amended complaint (the motion for leave), which was opposed by Defendant.

On February 21, 2024, the court entered its Order After Hearing (the Order) granting the motion for leave, and ordering Plaintiffs to, on or before March 4, 2024, file and serve their second amended complaint. Further, the court ordered the demurrer to the FAC off calendar as moot, and denied the motion of Defendant for a protective order.

The court’s records reflect that on March 4, 2024, Plaintiffs filed a second amended complaint (the SAC) alleging three causes of action: (1) breach of contract (Contribution and Indemnity Agreement); (2) breach of contract (FATCO Indemnity Agreement); and (3) breach of fiduciary duty, breach of covenant of good faith and fair dealing, and unjust enrichment.

On September 13, 2024, Defendant filed a stipulation executed by counsel for the parties agreeing that Plaintiffs may file a third amended complaint (the TAC), and that Defendant shall have 30 days after service of the TAC to file a responsive pleading. (Sept. 13, 2024, Stip., ¶¶ 2-3.) On the same date, the Court entered an order authorizing the filing of the TAC.

On September 16, 2024, Plaintiffs filed the TAC, alleging two causes of action: (1) breach of contract (Contribution and Indemnity Agreement); and (2) breach of contract (FATCO Indemnity Agreement). As alleged in the operative TAC:

On June 24 and 30, 2014, Marshall and Auzco Development Company (Auzco), who is Marshall’s affiliate, entered into agreements with Specialty Construction, Inc. (Specialty) for the preparation of plans for a mixed-use hotel and condominium project in San Luis Obispo (the Project), and which outlined costs to construct the Project. (TAC, ¶¶ 8-9.) Based on the plans prepared by Marshall, Auzco, and Specialty, Garden Street SLO Partners, LP (GSP) entered into a construction contract (the Contract) with Specialty for the Project. (TAC, ¶ 8-9.)

GSP, whose general partner is Downtown Investors, LLC (Downtown Investors), was formed to develop the Project. (TAC, ¶ 8.) Specialty was the general contractor for the Project. (TAC, ¶ 9.) Plaintiffs, GSP, Downtown Investors, and Defendant entered into agreements under which Defendant and Auzco agreed to manage, and to supervise Specialty in the construction of, the Project. (TAC, ¶ 10.)

To fund the Project, GSP obtained a $15 million construction loan (the Construction Loan) from Montecito Bank & Trust (the Bank) which contained three conditions: (1) that Pananides and Smith personally guarantee the Construction Loan; (2) that GSP provide a policy of title insurance guaranteeing that a deed of trust securing the Construction Loan would be in “first position” and that there were no mechanics liens recorded against the title to the Project; and (3) that GSP enter into a construction loan agreement (Loan Agreement) prepared by the Bank. (TAC, ¶¶ 11-12 & Exh. A.) The Loan Agreement provides that any liens recorded against the Project to which the Bank did not consent would constitute an event of default entitling the Bank to declare the Construction Loan in default and to demand that GSP, Pananides, and Smith cure the default. (TAC, ¶ 14.)

The Construction Loan was evidenced by the Loan Agreement, a promissory note, and two deeds of trust recorded on November 30, 2016. (TAC, ¶ 32.)

As a condition of their personal guarantee of the Construction Loan, Pananides and Smith required that Defendant, Charles Braff (Braff) and the Braff Family Trust (the Braff Trust) enter into a Contribution and Indemnity Agreement (the CIA), pursuant to which the parties agreed that Defendant, Braff, and the Braff Trust would jointly and severally assume 50 percent of the risk or payment in the event Pananides and Smith were required to cure any default under the Construction Loan, and that the Pananides Parties and the Smith Parties would each assume 25 of any risk or payment associated with any default on the Construction Loan. (TAC, ¶¶ 17-20 & Exh. B.)

GSP obtained from First American Title Insurance Company (FATCO) a policy of title insurance (the FATCO Policy) in favor of the Bank for the Project, which was execute by and conditioned on the Pananides Parties, the Smith Parties, Defendant, GSP, Downtown Investors, and SLO Holdings agreeing to indemnify FATCO in the event it had to pay any claims relating to liens against the Project. (TAC, ¶¶ 23, 31 & Exh. C.) The obligations set forth in the FATCO Policy are joint and several, and require the Pananides Parties, the Smith Parties, Defendant, GSP, Downtown Investors, and SLO Holdings to pay in full all construction costs for the Project prior to the time for filing any mechanics liens. (TAC, ¶¶ 26 & 28.)

The construction of the Project took longer and cost more than Specialty represented in budgets presented to GSP at the time GSP obtained the Construction Loan. (TAC, ¶ 33.) The proceeds of the Construction Loan were insufficient to pay the costs of constructing the Project which resulted in Specialty and subcontractors not being timely paid. (TAC, ¶ 34.) Pursuant to the CIA and FATCO Indemnity Agreement, and to prevent the filing of mechanics liens, SLO Holdings, GSP, Pananides, Smith and Defendant provided funds to pay Specialty and subcontractors. (TAC, ¶ 34.) In early 2018, Defendant informed Plaintiffs that it would not continue to fund the Project’s construction costs. (TAC, ¶ 35.)

On July 3, 2019, Sahara Construction Company, Inc. (Sahara), filed an action to foreclose a mechanics’ lien recorded against the Project which constituted an event of default under the Loan Agreement entitling the Bank to demand that FATCO pay off, and entitling FATCO to demand under the FATCO Policy funds from Pananides, Smith, and Marshall to pay off, Sahara’s mechanics lien. (TAC, ¶ 36.) Based on the mechanics lien recorded by Sahara, the Bank declared the Construction Loan to be in default, and demanded that Pananides and Smith cure the default. (TAC, ¶ 37.)

To obtain funds to continue the construction of the Project, GSP sought financing from the Western Riverside Council of Governments (the Authority), who agreed to loan the principal amount of $11,833,696.77 (the PACE Loan) to be secured by a first-priority assessment on the property tax bills for the real property and improvements comprising the Project. (TAC, ¶ 38.) The Authority demanded as a condition precedent to funding the PACE Loan that the Bank subordinate its first deed of trust on the Project to the proposed new PACE Loan. (TAC, ¶ 38.) The Bank would not agree to subordinate its deed of trust because the Construction Loan was in default, and again demanded that the default on the Construction Loan be cured. (TAC, ¶ 39.)

On November 15, 2019, Pananides, Smith, and Marshall executed a Written Consent Of The Partners Of GSP (the Written Consent) pursuant to which Pananides, Smith, and Marshall agreed to the plan of Pananides and Smith to form SLO-MLP, LP (SLO-MLP) to purchase the Construction Loan, and to the purchase of the Construction Loan by SLO-MLP for the purpose of obtaining the PACE Loan to continue construction of the Project. (TAC, ¶¶ 40-43 & Exhs. D & E.) Pananides and Smith borrowed funds to enable SLO-MLP to purchase the Construction Loan which it did on November 15, 2019. (TAC, ¶ 45.)

On November 22, 2019, Pananides and Smith sent a letter to Defendant pursuant to the CIA demanding that Marshall participate in the purchase of the Construction Loan by SLO-MLP. (TAC, ¶ 44 & Exh. F.) Though Defendant did not object to the purchase of the Construction Loan by SLO-MLP and did not insist that the Construction Loan be paid off to cure the default, Defendant refused to participate in the purchase of the Construction Loan to cure the default. (TAC, ¶ 44.)

On what appears to be the date of February 16, 2020, Specialty filed an action to foreclose a mechanics lien for which GSP, SLO Holdings, Pananides, Smith, and Marshall posted a bond as required by FATCO pursuant to the FATCO Policy. (TAC, ¶ 47.) GSP filed a cross-complaint against Specialty to contest the amount of the mechanics lien for which Pananides and Smith advanced fees and costs. (TAC, ¶¶ 48 & 60.)

On December 31, 2022, GSP entered into an agreement to sell the Project. (TAC, ¶ 52.) The purchase price for the Project did not provide sufficient funds to pay off the Construction Loan or mechanics liens recorded against the Project, among other things. (TAC, ¶¶ 52 & 63.) In addition, the buyer of the Project required GSP to obtain a title insurance policy confirming clear title without the mechanics liens recorded by Sahara and Specialty or the deed of trust securing the Construction Loan, which required GSP to post a bond under the FATCO Policy for which Marshall did not advance funds as required under the CIA and FATCO Policy or as demanded by Pananides and Smith. (TAC, ¶¶ 53-61.)

On October 22, 2024, Defendant filed a demurrer directed only to the first cause of action alleged in the TAC, on the grounds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for breach of the CIA. The demurrer is opposed by Plaintiffs.

Analysis:

(1) Defendant’s Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

As grounds for its demurrer to the first cause of action for breach of the CIA, Defendant asserts that Plaintiffs have failed to allege what, if any, damages they suffered as a result of any purported breach of the CIA by Defendant.

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) In the TAC, Plaintiffs expressly allege that as a result of Defendant’s purported breach of the CIA, Plaintiffs incurred expenses to “make up” a shortfall caused by Defendant’s payment failures which include unfunded construction costs demanded by Specialty and its subcontractors, borrowed funds to purchase the Construction Loan to cure the default, costs to purchase release bonds described in the TAC and above, and attorney’s fees and costs to defend against the mechanics lien foreclosure actions further described above which Plaintiffs contend are recoverable under the CIA. (TAC, ¶¶ 95-97.) Defendant fails to sufficiently explain why these allegations are insufficient to plead damage to Plaintiffs resulting from Defendant’s purported breaches of the CIA.

In addition, a demurrer challenges only the legal sufficiency of the pleading and not its truth of or the pleader’s ability to prove its factual allegations. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732; Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381 [“[n]either trial nor appellate courts should be distracted from … the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action”].) For these reasons, a pleading which includes a prayer for relief that is not proper or to which the plaintiff is not entitled is good against a general demurrer provided “it pleads facts sufficient to show that the pleader is entitled to some equitable relief.” (Woodley v. Woodley (1941) 47 Cal.App.2d 188, 190-191; see also Moropoulos v. C.H. & O.B. Fuller Co. (1921) 186 Cal. 679, 688 [“[t]he prayer for damages itself is not a part of the complaint, subject to demurrer, and the fact that plaintiff has prayed for exemplary damages, or any other relief to which he may not be entitled does not affect the sufficiency of his complaint”].)

To the extent the demurrer of Defendant challenges any purported failure by Plaintiffs to seek proper relief or recoverable damages, it cannot be rightfully sustained. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 (Kong).) Moreover, though the court granted Plaintiffs leave to file an amended pleading to address arguments and issues raised in Defendant’s opposition to that motion, there is no information or evidence showing that Plaintiffs unambiguously made any statements conceding that they did not incur damages as a result of any breach of the CIA by Defendant notwithstanding whether or not Plaintiffs or their counsel acknowledged that the Construction Loan was paid off. (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752 [general discussion of binding judicial admission].) For these and all reasons further discussed above, to the extent Defendant contends that Plaintiffs have failed to allege damages resulting from a breach of the CIA by Defendant, the demurrer is without merit.

Defendant further asserts that the allegations of the TAC reveal that SLO-MLP was created as a separate legal entity to purchase the Construction Loan so that Pananides and Smith would not have to pay off that loan. Because the allegations of the TAC show that Plaintiffs did not pay off the Construction Loan, Defendant argues, Plaintiffs lack standing to pursue a breach of contract claim.

The breaches of the CIA by Defendant which are alleged or effectively alleged in the TAC are not limited to the allegations referenced in the demurrer and include: a failure by Defendant to share in the costs to purchase the Construction Loan or to participate in that process; a failure to cure the default of the Loan Agreement to the extent it was caused by acts or omissions by Marshall as the manager of the Project; and a failure to contribute to costs to obtain release bonds to enable the sale of the Project. (TAC, ¶¶ 82, 84, 86-87, 93-95.) Plaintiffs allege that, as a result of these breaches, they were required to advance their own funds to make up any shortfall in the amount necessary to purchase the Construction Loan, and incurred attorney’s fees to defend the mechanics lien foreclosure actions described in the TAC, among other things. (TAC, ¶¶ 96-97.)

Even if the allegations of the TAC show expressly or by inference that Plaintiffs did not pay off the Construction Loan, Defendant’s arguments address only one of the several breaches of the CIA alleged in the TAC. Because the demurrer is directed to only part of the first cause of action, it cannot be sustained on that basis. (Kong, supra, 108 Cal.App.4th at p. 1047.) Defendant has also failed to address each of the purported breaches alleged in the TAC, or to present reasoned argument showing why these allegations are insufficient to state a cause of action for breach of contract.

Defendant also asserts that Plaintiffs have failed to allege facts showing that they made a timely or proper written demand that Defendant pay its percentage interest to the Bank or that they advanced any payment to the Bank, which Defendant contends are each conditions or obligations under the CIA which Plaintiffs were required meet in order to trigger any obligations owed by Defendant under the CIA. For these reasons, Defendant argues, Plaintiffs have failed to allege facts sufficient to show that each of the three conditions under the CIA, which trigger Defendant’s obligations to pay its percentage interest under the CIA, were met.

Though Defendant effectively contends that Plaintiffs have failed to allege in the TAC that they performed under the CIA or met the conditions precedent to Defendant’s performance under the CIA, a reasonable interpretation of the allegations of the TAC show that Plaintiffs have pleaded facts which Plaintiffs ostensibly contend constitute an excuse for an any failure by Plaintiffs to perform under the CIA.

For example, Plaintiffs allege that Defendant agreed in the Written Consent to the purchase of the Construction Loan from the Bank by SLO-MLP, and that Defendant indicated an intent or refusal to discontinue funding construction costs for the Project. (See TAC 35, 40-41, 43.) Defendant fails to address these allegations or why they fail to sufficiently plead an excuse from any obligation by Plaintiffs to perform under the CIA. (See, e.g., Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172, 1182-1183 [general discussion; also noting that conditions precedent are disfavored absent appropriate contractual language]; Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 702 [general discussion of repudiation of contract].) Further, the court does not for present purposes consider whether Plaintiffs can prove these allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

For all reasons discussed above, the Court will overrule the demurrer as to each of the grounds asserted by Defendant.

(2) Defendant’s Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., § 436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

In the motion to strike, Defendant contends that at the February 16, 2024, hearing on the motion for leave of Plaintiffs and the demurrer of Defendant to the FAC, counsel for Defendant introduced evidence showing the Construction Loan was paid in full. (Def. RJN, Ex. 2 at pp. 3, ll. 7-13 & 5, ll. 5-14.) Defendant further asserts that at the hearing, counsel requested that the court order Plaintiffs to include allegations addressing that evidence, including the payment and status of the Construction Loan. (Id. at pp. 3, ll. 13-18 & 7, ll. 6-17.) Defendant also states that in response, Plaintiffs’ counsel admitted the Construction Loan had been paid off and represented that Plaintiffs would add these allegations to the SAC and allegations demonstrating how Plaintiffs suffered damage. (Id. at pp. 8, ll. 26 & 9, ll. 1, 6-10.)

Defendant further contends that in the Order, the court granted Defendant’s request that Plaintiffs address the arguments and issues raised in the opposition to the motion for leave. (Def. RJN, Ex. 5 at p. 2.) Because the TAC includes no allegations that the Construction Loan was paid off or how Plaintiffs suffered damage notwithstanding that the Construction Loan was paid off, Defendant argues, the TAC is not drawn in conformance with the Order and should be stricken.

Under California Rules of Court, rule 3.1324(a), Plaintiffs were required to include with the motion for leave a copy of the proposed amendments or amended pleading. The second amended complaint which Plaintiffs proposed to file was included as exhibits A and B to the declaration of Plaintiff’s counsel, Thomas G. Foley (Foley), submitted in support of the motion for leave. As required by court rules, exhibit A to the Foley declaration consisted of a “redline” version of the proposed second amended complaint showing what allegations Plaintiffs proposed to be deleted from the FAC and where, and what allegations Plaintiffs proposed to be added to the FAC and where. (See Nov. 29, 2023, Foley Decl., ¶ 4 & Exh. A; Cal. Rules of Court, rule 3.1324(a)(2)-(3).) Exhibit B to the Foley declaration consisted of a “clean” version of the proposed second amended complaint. (Id. at ¶ 5.)

The Order reflects the court’s ruling which, considering the requirements of California Rules of Court, rule 3.1324, expressly authorized Plaintiffs to “make further amendments … addressing the arguments and issues raised by [Defendant] in opposition to” the motion for leave, whether or not those amendments were included in the proposed pleading submitted in support of that motion. (Def. RJN, Exh. 5 at p. 2.) Though the court granted permission to Plaintiffs to make further amendments to the proposed pleading submitted with the motion for leave to address any arguments raised by Defendant in opposition to that motion, nothing in the Order requires Plaintiffs to make any particular or specific amendments nor does Defendant offer any reasoned argument demonstrating what, if any, legal authority would authorize an order directing a plaintiff to include particular or specific allegations or evidence in a proposed amended pleading which is the subject of a motion to amend.

Further, to the extent Defendant contends that there exists evidence which contradicts or disproves the allegations of the TAC, or demonstrates that the allegations are untruthful, Defendant may raise these arguments in a procedurally appropriate manner at an appropriate time.

For all reasons discussed above, the first cause of action alleged in the TAC is drawn in conformity with the Order. Therefore, the court will deny Defendant’s motion to strike.

(3) The Parties’ Requests for Judicial Notice

In support of the demurrer to the TAC, Defendant requests judicial notice of: (1) a “Final Settlement Statement” (the Settlement Statement) which was provided by FATCO to GSP for the sale of the Hotel Cerro, and which Defendant contends was certified as a true and correct copy by FATCO; (2) the certified reporter’s transcript (the Transcript) of the February 16, 2024, proceedings; (3) that SLO-MLP “is a Delaware limited partnership registered with the California Secretary of State (201222000016) and its General Partner is MLP GP, LLC per records on the California Secretary of State’s website (https://bizfileonline.sos.ca.gov/search/business)”; (4) that “MLP GP, LLC is a Delaware limited liability company registered with the California Secretary of State (201221610235) and its ‘Member(s) or Manager(s)’ are Alex N. Pananides and Patrick N. Smith per records on the California Secretary of State’s website (https://bizfileonline.sos.ca.gov/search/business)”; and (5) the Order. (Def. RJN [Demurrer], ¶¶ 1- 5 & Exhs. 1-5.)

In support of the motion to strike, Defendants also request judicial notice of Plaintiffs’ filing of the motion for leave, and of the fact that on February 2, 2024, Defendant filed a memorandum and a declaration of Hamish Marshall (collectively, the opposition) in response to the motion for leave. (Def. RJN [Motion to Strike], ¶¶ 1-3 & Exhs. 1-3.)

The Transcript, the entry of the Order, the Order, the motion for leave, and the opposition are matters for which judicial notice is authorized and, though not necessary, will be granted. (Evid. Code, § 452, subds. (c) & (d)(1).) Judicial notice of these matters does not extend to the truth of any facts which are subject to dispute, or to any hearsay or irrelevant matter contained in in any document. (Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)

The court will deny Defendant’s request for judicial notice of the Settlement Statement, and of the facts stated in items 3 and 4 further described above. These matters are not proper subjects of judicial notice, constitute extrinsic matters which the court may not consider on demurrer, and are not necessary to the court’s determination of the demurrer. (Evid. Code, § 452; Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500; Save Lafayette Trees v. East Bay Regional Park District (2021) 66 Cal.App.5th 21, 29, fn. 2.)

In support of their opposition to the demurrer and motion to strike of Defendant, Plaintiffs request judicial notice of: (1) the complaint filed by Specialty in San Luis Obispo County Superior Court Case No. 20CV-0167 (the Specialty Litigation); (2) a status update filed by Specialty in the Specialty Litigation; and (3) the court’s docket in the Specialty Litigation. (Pl. RJN, ¶¶ 1-3 & Exhs. 1-3.) Though court records are matters for which judicial notice may be taken, these records include matters extrinsic to the TAC for present purposes and are not necessary to the court’s determination of the demurrer or motion to strike of Defendant. Therefore, and for all reasons discussed above, the court will deny the entirety of Plaintiffs’ request for judicial notice.