Daniel v. Isaac

defendant told plaintiff that the invoices that had been received looked fine, including a final invoice for $536,860.86. However, that final invoice was never paid, leading to this suit. Defendant demurs and plaintiff opposes.

Preliminarily, the defense suggests that there was an inadequate meet and confer. While the meet and confer was not optimal, the court cannot overrule a demurrer on that basis; all it could do is continue the matter. The court is not sure that would be productive.

The request for judicial notice of the Layton declaration is GRANTED, although not for the truth of the matters asserted. It is too far outside the pleadings. Plaintiff's request for judicial notice is GRANTED.

The law is settled that in an action based on a written contract, a plaintiff need only plead the legal effect of the contract; plaintiff need not plead the precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189.) Plaintiff does that. While it is true that the LOI attached to the FAC does not also attach the documents to which it refers, that is not required. (And, of course, defendant could have done so.) If defendant is really confused, discovery ought to solve the problem. The bottom line is that plaintiff alleges that defendant agreed to pay the invoices, but the final (and very large) invoice was not paid. That is enough.

Defendant also claims that the contract is uncertain because no specific time for payment is set forth. That is not fatal. Where a precise time line is absent, the court will infer a reasonable period.

The final issue is that the bill in question is for lost profits. But a demurrer is not the proper vehicle to make that challenge; that ought to be done by way of a motion to strike. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, disapproved on other grounds in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) Further, the argument relies on extrinsic evidence beyond the four corners of the pleading. The Layton declaration cannot be used by the court on demurrer in the manner defendant suggests.

The same argument is made with regard to the common count cause of action. It fails for the same reason. The court also notes that it is far from clear that a "lost profit" invoice is improper. As a final bill, it reflects (if defendant is correct) profits that would have been made on the project. That is a part of expectation damages.

In any event, the demurrer is OVERRULED. Defendant has 30 days to answer.

defendant's SMS in this malicious prosecution suit. This is the latest in a never-ending battle between these two brothers. In the underlying suit, the court threw out Isaac's case (the court uses first names due to the similarity of the surnames; no disrespect is intended) on the basis of res judicata and collateral estoppel. The Court of Appeal affirmed, using strong language concerning the clear effect of those doctrines as dooming Isaac's case. That led Daniel to file this malicious prosecution action.

Isaac then brought the SMS, which was denied. Daniel seeks fees in opposing the motion. Preliminarily, the opposition is late by a day and grossly overlength. The court will overlook the timeliness aspect but STRIKES pages 16-25.

As to the evidentiary objections, the court did not rely on Isaac's declaration in making todays ruling, so the objections are MOOT.

A party successfully opposing an SMS is not entitled to fees by right (unlike a party successfully bringing such a motion). The standard for recovery by the opposing party is the same as the standard set forth in Code of Civil Procedure section 128.5--a finding that the motion was frivolous or intended to cause unnecessary delay. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435.) The first prong (frivolous) is an objective standard; if the motion was in fact frivolous, then a subjective belief that the action was meritorious will not defeat the finding. That is why even a represented party can be subject to this statute. (Isaac was represented during the underlying case.)

The court also notes that there seems to be a questionable proof of service as to the filing of the motion, which suggests that the purpose might have been solely to delay. The court need not, and does not, find that the motion was filed solely for purposes of delay. But the court does agree that the motion was frivolous. While the SMS easily met the first prong of the statute--it involved protected activity (filing the underlying suit)--plaintiff here easily defeated the motion on the second prong--"minimal merit."

Given the many, many other cases between these parties, once the court was able to disentangle the procedural posture of the case, this court was able to rule on a pleading motion. And the Court of Appeal had little difficulty finding that the underlying case was already decided (more than once). The SMS was objectively frivolous. That does not mean Daniel will win; only that he might.

The question, though, is procedural. It is not clear that plaintiff complied with the safe harbor requirements of section 128.5. In Zarate v. McDaniel (2023) 97 Cal.App.5th 484, the Court of Appeal discussed the relationship of that statute to the SMS motion by the opposing party. It held that the procedural requirements of that statute apply to a party seeking fees for opposing the SMS. The Zarate Court noted that sometimes that might not be practical and did not address whether in such a case the same safe harbor requirements applied.

The theory is that Daniel could have provided Isaac with notice that fees would be sought to give Isaac time to withdraw the SMS. If Isaac did not withdraw the SMS, then the fee motion would be brought. Because Daniel did not comply with the safe harbor provision, and because there is no showing that it was impractical to do so, the motion must be DENIED.

Case Number: 26SMCV03065 Hearing Date: September 9, 2026 Dept: I This is a motion by CW to proceed anonymously. Defendants originally opposed the motion but withdrew their opposition to the extent that plaintiff has invoked the Safe At Home program under Code of Civil Procedure section 367.3. That statute provides that a protected person can use a pseudonym and identifying information cannot be placed in the public record. A person can be a protected person if they are a participant in a program set forth in Government Code