Filed 3/6/13 Portman v. New Line Cinema CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

NEIL PORTMAN et al., 

 Plaintiffs and Appellants, 

 v. 

NEW LINE CINEMA CORPORATION, 

 Defendant and Respondent. 

 B233669 

 (Los Angeles County 

 Super. Ct. No. BC417739) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Richard 

E. Rico, Judge. Affirmed. 

 Neil Portman, in pro. per.; Law Offices of Ronald M. Lebow and Ronald M. 

Lebow for Plaintiffs and Appellants. 

 Kelley Drye & Warren, Michael J. O’Connor, Edward E. Weiman, and Hajir 

Ardebili for Defendant and Respondent. 
2 

 Neil Portman, an individual, and Portman & Company (collectively “Portman”) 

appeal from a final judgment entered in favor of New Line Cinema Corporation 

(New Line) after the trial court sustained, without leave to amend, New Line’s demurrer 

to Portman’s second amended complaint. We affirm the judgment. 

BACKGROUND 

1. The original complaint 

 The original complaint (OC) in this action was filed on July 13, 2009, and alleged 

causes of action against New Line for breach of contract, misappropriation of trade 

secrets, fraud and deceit, fraudulent concealment, unjust enrichment, and breach of the 

implied covenant of good faith and fair dealing. 

 Portman alleged that he is a “developer of multi-media content through his 

development company, Portman & Company.” He further alleged that in or about June 

2002, he was introduced to officers of New Line through “an intermediary, Peter 

Kirshenbaum.”1 On June 3, 2002, Portman entered a signed written agreement with 

Kirshenbaum “related to the exploitation of Portman’s motion picture project on party 

crashing.” The agreement between Portman and Kirshenbaum detailed the terms under 

which Kirshenbaum would introduce Portman to senior management at New Line. The 

Portman-Kirshenbaum agreement was faxed to New Line, and individuals at New Line 

initialed the contract and returned it to Portman via fax. 

 Portman alleged that he disclosed to New Line that he was in “active 

conversations with United Talent Agency [(UTA)] regarding the development of 

[Portman’s] party crashing comedy project.” 

 On or around July 3, 2002, Portman personally delivered to New Line a copy of 

Portman’s party crashing submission package which consisted of: (1) a detailed 

submission letter; (2) a book entitled “The Party Crasher’s Handbook”; and (3) a copy of 

the business arrangement Portman signed with the author of the Party Crasher’s 

 1 Kirshenbaum’s name was spelled differently in the second amended complaint as 

“Kershenbaum.” 
3 

Handbook, which granted Portman exclusive rights to develop a feature motion picture 

comedy based on the book and to present the project to studios. In the text of Portman’s 

submission letter, Portman again disclosed that he was engaged in active dialogue with 

UTA regarding leading comedic talent for his project. 

 On or around July 10, 2002, New Line sent a letter to Portman in response to the 

July 3, 2002 party crashing submission letter. New Line acknowledged Portman’s 

submission but stated that a comedy about party crashing was not something that New 

Line could get involved with at the time. Portman faxed to UTA a copy of his 

submission to New Line and the response letter that he received from New Line. 

 Portman alleged that Portman, New Line, and UTA subsequently engaged in an 

“ongoing and protracted dialogue” related to “talent attachments and the production of 

[Portman’s] party crashing comedy motion picture.” After six months of such 

discussions, Portman was informed by UTA that Portman’s original choice of leading 

comedic actors opted not to participate in the project. Subsequent to this event, Portman 

alleged, New Line and UTA simultaneously stopped taking Portman’s telephone calls 

and refused Portman access to relevant information regarding Portman’s party crashing 

motion picture. 

 On or about July 15, 2005, New Line released a feature motion picture comedy 

entitled “Wedding Crashers,” with an entire talent package provided by UTA. Portman 

alleged that the primary story line in the motion picture comedy was about party 

crashing. 

 Portman also discovered that on or about July 15, 2005, New Line made false and 

misleading statements in a declaration filed in superior court denying the allegations 

described above. 

 Portman alleged, on information and belief, that as of January 1, 2006, the motion 

picture Wedding Crashers grossed $210 million in the domestic United States 

marketplace; $78 million in the foreign marketplace; and a projected $235 million in 

DVD revenue. Portman alleged that he did not receive any compensation for presenting 

the party crashing project, along with UTA leading comedic talent, to New Line. 
4 

 On October 16, 2009, New Line demurred to all six causes of action. New Line 

argued that the causes of action were barred by the doctrines of res judicata and collateral 

estoppel; that they were barred by the applicable statutes of limitation; and that they 

failed to state causes of action. In its memorandum of points and authorities, New Line 

pointed out that Rex Reginald (Reginald), whom New Line described as Portman’s 

“producing partner,” brought claims against New Line in August 2004 alleging that 

Wedding Crashers was based on a concept conceived by Reginald and pitched to New 

Line through Portman. Reginald’s lawsuit (the Reginald action) was dismissed on the 

ground that Wedding Crashers was not substantially similar to Reginald’s concept. New 

Line sought judicial notice of the complaint in the Reginald action, along with deposition 

excerpts taken from a deposition of Portman in that action, and filings related to New 

Line’s successful summary judgment motion. 

 On February 8, 2010, the trial court sustained New Line’s demurrer with 30 days 

to amend as to all causes of action on the ground that they appeared time-barred as a 

matter of law, and Portman’s delayed discovery allegations were inadequate. The 

demurrer to the first cause of action for breach of contract, and the sixth cause of action 

for breach of the covenant of good faith and fair dealing, were also sustained on the 

ground that it could not be ascertained whether the alleged contract was written, oral or 

implied and that the material terms of the contract were not pled. Finally, the demurrer to 

the second cause of action for misappropriation of trade secrets was also sustained on the 

ground that Portman failed to allege facts showing a protectable trade secret. 

 In ruling on the demurrer, the court took judicial notice of the court’s order in the 

Reginald action granting summary judgment, the appellate opinion affirming the order, 

and the existence and nature of the operative pleading. The court declined to take judicial 

notice of the other documents submitted by New Line. 

2. The first amended complaint 

 Portman’s first amended complaint (FAC) was filed on March 10, 2010. The FAC 

contained five causes of action for breach of written contract, misappropriation of trade 
5 

secrets, fraud and deceit, unjust enrichment, and breach of implied covenant of good faith 

and fair dealing. 

 On April 14, 2010, New Line filed a demurrer to the FAC. On the same date, 

New Line filed a request for judicial notice, asking that the court take judicial notice of: 

(1) the complaint filed in the Reginald action; (2) the first amended complaint filed in the 

Reginald action; (3) the fact that Portman was deposed twice in the Reginald action; and 

(4) the fact that Portman submitted two declarations in the Reginald action. 

 On November 10, 2010, the trial court sustained New Line’s demurrer to the first, 

second, third and fifth causes of action on the ground that the claims appeared timebarred as a matter of law, and Portman’s attempted delayed discovery allegations were 

inadequate. The court stated, “[Portman] fails to allege facts supporting his claim that 

[New Line] concealed [its] actions making it impossible for him to discover his claims 

until after the July 15, 2005 release of the film at issue.” New Line’s demurrer to the 

fourth cause of action for unjust enrichment was also sustained on the ground that unjust 

enrichment is a remedy, and not a cause of action. Portman was given 30 days leave to 

amend as to the first, second, third and fifth causes of action. 

 New Line’s request for judicial notice was denied. 

3. The second amended complaint 

 Portman filed a second amended complaint (SAC) on December 10, 2010. It 

contained four causes of action for breach of written contract, misappropriation of trade 

secrets, fraud and deceit, and breach of implied covenant of good faith and fair dealing. 

 On January 14, 2011, New Line again demurred to all causes of action. New Line 

also filed a request for judicial notice, asking the court to take judicial notice of: (1) the 

complaint in the Reginald action; (2) the first amended complaint in the Reginald action; 

and (3) the fact that Portman was deposed twice in the Reginald action, once on May 10, 

2005, and once on May 25, 2005. In its memorandum supporting the request, New Line 

emphasized that it was not asking the court to take judicial notice of the truth of the 

documents, or the accuracy of Portman’s testimony, but simply to take judicial notice of 
6 

the existence of the documents and the fact that Portman was deposed twice in the 

Reginald action. 

 New Line’s demurrer was heard on April 13, 2011, and was sustained in full 

without leave to amend. The court granted New Line’s request for judicial notice. The 

court explained that “[o]n August 2, 2004, [Portman’s] business partner [Reginald] filed 

suit against [New Line] and other[s] alleging that the Film [Wedding Crashers] was based 

on his ideas.” The court noted that Portman was deposed twice in that action, and that 

the current action was filed more than four years after the Reginald action was filed. The 

court found that these events put Portman on notice of information or circumstances to 

put a reasonable person on inquiry of the potential claim. 

 The court further held that in order to rely on the discovery rule, Portman would 

have had to allege facts showing “‘(1) the time and manner of discovery and (2) the 

inability to have made earlier discovery despite reasonable diligence.’ [Citation.]” 

(Citing Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) The court noted 

that despite three chances, Portman still failed to allege facts supporting his position that 

he did not discover his claims until after the July 15, 2005 release of the film. 

4. Final judgment and appeal 

 On April 20, 2011, a final judgment was filed, dismissing the SAC with prejudice. 

As the prevailing party, New Line was awarded costs in the amount of $1,665.99. 

 On June 10, 2011, Portman filed his notice of appeal from the judgment. 

DISCUSSION 

I. Standard of review 

 “On appeal from a judgment dismissing an action after sustaining a demurrer 

without leave to amend, the standard of review is well settled. The reviewing court gives 

the complaint a reasonable interpretation, and treats the demurrer as admitting all 

material facts properly pleaded. [Citations.] The court does not, however, assume the 

truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be 

affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ 

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff 
7 

has stated a cause of action under any possible legal theory. [Citation.] And it is an 

abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows 

there is a reasonable possibility any defect identified by the defendant can be cured by 

amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-

967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair 

Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) 

 Bearing these standards in mind, we review the causes of action in Portman’s 

SAC. 

II. The applicable statutes of limitation bar Portman’s claims 

 A plaintiff must bring a cause of action within the limitations period. (Code Civ. 

Proc., § 312.) The limitations period begins to run once the plaintiff has notice of 

information or circumstances to put a reasonable person on inquiry notice of the potential 

claim. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) When a complaint 

discloses that the statute of limitations has run on the claims at issue, the defect may be 

exposed by way of demurrer. (Guardian North Bay, Inc. v. Superior Court (2001) 94 

Cal.App.4th 963, 971-972.) 

 Because the trial court sustained New Line’s demurrer to all four causes of action 

on the grounds that they were barred by the applicable statutes of limitation, we begin by 

discussing those statutes and the facts related to Portman’s discovery of his claims. As 

set forth below, we conclude that the trial court properly sustained the demurrer to each 

cause of action on the ground that it is barred under the applicable statute of limitations. 

A. Breach of contract

 1. Applicable law 

 To state a cause of action for breach of contract, “a party must plead the existence 

of a contract, his or her performance of the contract or excuse for nonperformance, the 

defendant’s breach and resulting damage. [Citation.]” (Harris v. Rudin, Richman & 

Appel (1999) 74 Cal.App.4th 299, 307.) Where an action is based on an alleged breach 

of a written contract, “the terms must be set out verbatim in the body of the complaint or 
8 

a copy of the written agreement must be attached and incorporated by reference. 

[Citation.]” (Ibid.) 

 2. Applicable statute of limitations 

 The statute of limitations for breach of a written contract is four years under Code 

of Civil Procedure section 337. Generally, a cause of action for breach of contract 

accrues at the time of the breach. (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 

1120.) However, application of the delayed discovery rule may be appropriate in cases 

where the breach is committed in secret. (William L. Lyon & Associates, Inc. v. Superior 

Court (2012) 204 Cal.App.4th 1294, 1310.) 

 The statute of limitations for breach of a contract that is not based on a written 

agreement is two years, whether the agreement is oral or implied in fact. (Code Civ. 

Proc., § 339.) A claim for breach of oral contract is also subject to the delayed discovery 

rule. It accrues when “the aggrieved party discovers, or should discover, the existence of 

the cause of action.” (Seelenfreund v. Terminix of Northern Cal., Inc. (1978) 84 

Cal.App.3d 133, 136.) 

 Portman has captioned his breach of contract cause of action as a claim for breach 

of written contract. However, New Line argues that the allegations of the SAC do not 

support Portman’s claim that a written contract between Portman and New Line ever 

existed. In order to determine the applicable statute of limitations, we must first examine 

the allegations of the SAC and determine whether they support a claim for breach of 

written contract, as Portman insists -- or only a claim for breach of oral or implied 

contract, as New Line insists. 

 3. Allegations regarding the formation and the terms of the contract 

 The allegations of the SAC establish the following: Portman signed an agreement 

with Kirshenbaum “[t]hat Portman enter into an agreement with New Line ‘solely related 

to a proposed feature motion picture production on “party crashers” in which New Line 

or its affiliated production entities agree to develop.’” New Line “reviewed and signed” 

the agreement between Kirshenbaum and Portman, as well as an amendment to that 

agreement “related to future productions of [Portman] to be submitted to New Line at its 
9 

invitation”;2 on July 3, 2002, Portman delivered his party crashing presentation to New 

Line; at all times mentioned, Portman was operating in the “material capacity” of 

exclusive developer and co-executive producer of the party crashing project to be 

financed and released by New Line; on July 10, 2002, in response to Portman’s 

submission, New Line sent Portman a written reply which specified that “at this time a 

comedy about party crashing is not something that New Line can get involved with,” but 

setting forth conditions for moving forward, such as attachment of talent;3 and that 

thereafter, Portman and New Line engaged in “written development, casting, production 

correspondence and telephonic dialogue for a period of five (5) months revolving around 

[Portman’s] party crashing project with Jim Carrey, [Portman’s] original choice of 

leading UTA comedic talent to star in [Portman’s] party crashing project to be financed 

and released by New Line.” 

 Based on these factual allegations, Portman contends that New Line “fully 

accepted [Portman’s] party crashing project with the understanding as defined in the June 

3, 2002 contract, the terms of the July 3, 2002 submission letter, and the terms of [New 

Line’s] July 10, 2002 reply letter, that if [New Line] produced a motion picture comedy 

about party crashing, part and parcel with UTA leading comedic talent, [Portman] would 

 2 In the OC, Portman alleged that New Line “initialed” the Portman–Kirshenbaum 

contract, not that New Line “signed” that contract. In analyzing the sufficiency of the 

SAC, we may consider the differences between the two pleadings. “A plaintiff may not 

avoid demurrer by pleading facts or positions in an amended complaint that contradict the 

facts pleaded in the original complaint or by suppressing facts which prove the pleaded 

facts false. [Citation.]” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 

877.) 

3 In the OC, Portman alleged that in its July 10, 2002 response to his submission 

New Line “established written criteria that if talent were attached to plaintiffs[’] party 

crashing comedy project, [New Line] would reconsider participating with plaintiffs in 

plaintiffs[’] party crashing comedy project.” Again, although Portman has phrased this 

alleged term of the reply letter differently in the SAC, we may consider the language used 

in the earlier pleading. (See Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 

877.)
10 

participate in the production and receive compensation afforded an exclusive developer 

and co-executive producer.” 

 Portman’s contention that New Line agreed in writing that Portman would 

participate in, or receive compensation for, any motion picture comedy about party 

crashing that New Line might produce, is not supported by the factual allegations of the 

SAC. At best, Portman alleges that there was a written agreement related to his proposal, 

which New Line formally turned down on July 10, 2002. While Portman alleges that the 

parties then engaged in further correspondence and dialogue over the next five months, 

there is no allegation of any further written contractual agreement arising out of those 

communications. Significantly, there is no allegation that New Line ever agreed in 

writing that it would take on Portman’s project or compensate Portman for anything. In 

fact, Portman has failed to set out verbatim any terms of a written agreement between 

Portman and New Line or specify any written obligations on the part of New Line. Nor 

has Portman attached to the SAC a copy of any written agreement between Portman and 

New Line. In sum, we find that Portman has failed to allege the existence of a written 

contract between Portman and New Line. (See Harris v. Rudin, Richman & Appel, 

supra, 74 Cal.App.4th at p. 307; Otworth v. Southern Pac. Transportation Co. (1985) 166 

Cal.App.3d 452, 459.) 

 Portman’s cause of action for breach of written contract fails because the SAC 

does not allege any obligations on New Line’s part that are based on a written contract 

between Portman and New Line. At best, Portman has alleged breach of an oral or 

implied-in-fact contract that Portman would participate in, and be compensated for, any 

motion picture film related to his party crashing proposal. Thus, the applicable statute of 

limitations for Portman’s breach of contract claim is the two-year statute of limitations 

found in Code of Civil Procedure section 339. 

 4. Allegations regarding breach of oral or implied contract 

 As to the breach of the alleged contract between Portman and New Line, Portman 

alleges that “after five months of written correspondence and oral dialogue between 

[Portman], [New Line] and UTA related to [Portman’s] party crashing project . . . , [New 
11 

Line] and UTA simultaneously stopped taking Portman’s telephone calls and refused 

Portman access to all relevant information regarding plaintiffs’ party crashing project.” 

 Portman further alleged that New Line “breached the written contract between 

[Portman] and [New Line] by releasing a feature comedic motion picture about party 

crashers now entitled ‘Wedding Crashers’ produced part and parcel with leading UTA 

comedic talent without compensation to [Portman].” 

 Thus, the actual breach of the alleged agreement occurred sometime in December 

2002, when Portman was excluded from the project, and culminated in the release of 

Wedding Crashers in July 2005. 

 5. Delayed discovery allegations and facts subject to judicial notice 

 However, Portman alleges that he did not discover New Line’s “secret 

combination designed to appropriate [Portman’s] party crashing project” until after the 

release of the film Wedding Crashers on July 15, 2005. In order to rebut the presumption 

that his cause of action accrued at the time of breach, Portman “must plead facts 

sufficient to convince a trial judge that delayed discovery was justified.” (William L. 

Lyon & Associates, Inc. v. Superior Court, supra, 204 Cal.App.4th at p. 1310.) 

 In an attempt to satisfy this requirement, Portman alleges that New Line “set in 

motion a canard against [him], defined herein as a well-timed and coordinated 

entertainment industry tactic used against individuals or companies with competing 

business interests in order to gain an unfair advantage.” Portman alleged that this 

“canard” “was designed and lodged by New Line to conceal from [Portman] the full 

extent of [New Line’s] misappropriation of [Portman’s] party crashing project.” Portman 

alleged that New Line’s “blockage of information made it extremely difficult to a point of 

being ‘impossible’ for [Portman] to commence discovery of relevant information 

necessary to define the full extent of New line’s misappropriation of the party crashing 

project and its concealment related to the procurement and acceptance of the leading 

UTA comedic talent until after the July 15, 2005 release of ‘Wedding Crashers.’” 

 In mid-2006, Portman further alleges that in his “continued” effort to discover all 

the facts about the Reginald action, he researched the file of the Reginald action at the 
12 

Santa Monica courthouse. Portman states that at that time he discovered a “false and 

misleading declaration” signed by Magnus Kim (Kim), a creative executive at New Line. 

In the allegedly false declaration, Kim acknowledged receipt of the “Party Crashers 

Handbook” in July 2002, but claimed that he only “skimmed” the work and determined 

that it did not merit further review by anyone at New Line. Kim also declared that he 

never discussed Portman’s party crashing project with anyone at New Line. 

 Other facts related to Portman’s claim of delayed discovery were provided by New 

Line in its request for judicial notice. The request for judicial notice filed with New 

Line’s demurrer to the SAC sought judicial notice of the complaint in the Reginald 

action, filed on August 2, 2004, the first amended complaint in the Reginald action, filed 

on December 27, 2004, and the fact that Portman was deposed in that action twice, on 

May 10, 2005, and again on May 25, 2005. New Line’s request for judicial notice was 

granted. The existence of Reginald’s lawsuit against New Line, and the fact that Portman 

was twice deposed in that action, suggest that Portman should have become aware of the 

existence of his claims no later than May 10, 2005. 

 6. Application of statute of limitations 

 Portman’s original complaint in this action was filed on July 13, 2009. The 

allegations of the complaint, and the facts judicially noticed, reveal that Portman should 

have discovered his cause of action for breach of contract in May 2005, when he was 

deposed in the Reginald action, or at the latest, in mid-July 2005, when Wedding 

Crashers was released to the general public. However, even assuming that Portman 

discovered his claim as late as “mid-2006,” when he was delving into the file in the 

Reginald action, it is still barred under the two-year statute of limitations for breach of 

oral or implied contract.4

 4 The allegations of the SAC undermine the suggestion that Portman did not 

discover his claims against New Line until “mid-2006.” Specifically, Portman alleges 

that in mid-2006 he “continued his effort to discover all the facts” by researching the file 

in the Reginald action at the Santa Monica courthouse. (Italics added.) By this 

allegation, Portman essentially admits that he realized earlier than mid-2006 that he 
13 

 Thus, Portman’s first cause of action for breach of contract fails as a matter of law, 

and the demurrer to this cause of action was properly sustained. 

 B. Misappropriation of Trade Secrets 

 1. Applicable law 

 Misappropriation of trade secrets is an intentional tort. “A trade secret is 

misappropriated if a person (1) acquires a trade secret knowing or having reason to know 

that the trade secret has been acquired by ‘improper means,’ (2) discloses or uses a trade 

secret the person has acquired by ‘improper means’ or in violation of a nondisclosure 

obligation, (3) discloses or uses a trade secret the person knew or should have known was 

derived from another who had acquired it by improper means or who had a nondisclosure 

obligation or (4) discloses or uses a trade secret after learning that it is a trade secret but 

before a material change of position. [Citation.]” (Ajaxo v. E*Trade Group, Inc. (2005) 

135 Cal.App.4th 21, 66.) 

 2. Applicable statute of limitations 

 The statute of limitations on a claim of misappropriation of trade secrets, set forth 

in Civil Code section 3426.6, is three years. The statute provides that “[a]n action for 

misappropriation must be brought within three years after the misappropriation is 

discovered or by the exercise of reasonable diligence should have been discovered.” 

 3. Facts alleged and subject to judicial notice 

 Portman claims that his “motion picture comedy project on party crashing 

produced part and parcel with UTA leading comedic talent were valuable proprietary 

assets of [Portman] and a legally cognizable trade secret.” He alleges that New Line 

“circumvented [his] exclusive ownership and financial interests in the property and 

engaged in secret dealings with UTA related to the procurement of UTA leading comedic 

talent by replacing Jim Carrey with UTA leading comedic talent Vince Vaughn and 

Owen Wilson,” and later accepted “Rachel McAdams and director David Dobkin as part 

of this secretly acquired UTA talent package.” 

 

might have a claim against New Line -- and that his suspicions prompted his visit to the 

Santa Monica courthouse. 
14 

 Portman alleged that New Line’s “blockage of information made it extremely 

difficult to a point of being ‘impossible’ for [Portman] to commence discovery of 

relevant information necessary to define the full extent of New line’s misappropriation of 

the party crashing project and its concealment related to the procurement and acceptance 

of the leading UTA comedic talent until after the July 15, 2005 release of ‘Wedding 

Crashers.’” 

 4. Application of statute of limitations 

 The release date of Wedding Crashers was July 15, 2005. At that time, the theme 

and casting of the movie was generally known to the public. On that date, Portman knew 

or, with the exercise of reasonable diligence, should have discovered his claims for 

misappropriation of trade secrets. (See, e.g., Shively v. Bozanich (2003) 31 Cal.4th 1230, 

1237 [“there can be no question that the cause of action for defamation accrued and the 

statute of limitations ran from the date the book was first generally distributed to the 

public, regardless of the date on which plaintiff actually learned of the existence of the 

book and read its contents”].)5

 5 Portman cites Nelson v. Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 

1202 as support for his argument that the release date of Wedding Crashers should not 

have commenced the running of the statute of limitations. We find Nelson to be 

distinguishable. In Nelson, the plaintiff’s cause of action arose from her use of the diet 

drug sold as Redux. The defendant argued that the plaintiff’s action was barred by the 

statute of limitations, because the limitations period began to run when the dangers of a 

similar drug, known as “Fen-phen,” were widely publicized. The Nelson court disagreed, 

finding that the plaintiff had no obligation to read newspapers and watch television news 

or otherwise seek out information not disclosed by her prescribing doctor. (Id. at p. 

1208.) The Nelson court’s conclusion was bolstered by Code of Civil Procedure section 

340.8, which specifically provides that, in the context of toxic torts or hazardous 

materials, media reports do not put a person on inquiry notice for the purpose of the 

statute of limitations. (Ibid.) Here, there are no allegations suggesting that Portman was 

unaware of the release of the film Wedding Crashers -- or the casting of that film -- on 

July 15, 2005. Thus, the release of that movie imposed on Portman a duty to investigate 

his potential claims further, and he is charged with knowledge of matters which would 

have been revealed by such an investigation. (Ibid.) 
15 

 Because Portman’s cause of action for misappropriation of trade secrets was not 

filed until July 13, 2009, it is barred by the statute of limitations as a matter of law, and 

the demurrer to this cause of action was properly sustained. 

C. Fraud and deceit 

 1. Applicable law 

 The elements of a cause of action for fraud and deceit are: (1) a representation; (2) 

falsity; (3) knowledge of falsity; (4) intent to deceive; and (5) reliance and resulting 

damage. (Lesperance v. North American Aviation, Inc. (1963) 217 Cal.App.2d 336, 345.) 

Every element of a cause of action for fraud and deceit must be alleged specifically in 

order for the cause of action to survive past the pleading stage. (Ibid.) 

 2. Applicable statute of limitations 

 The statute of limitations for an action based on fraud is three years. (Code Civ. 

Proc., § 338, subd. (d).) The cause of action “is not deemed to have accrued until the 

discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Ibid.) 

 3. Facts alleged 

 Portman alleged that New Line falsely and in bad faith represented to him that it 

intended to proceed with his project about party crashing. The representation was made 

when New Line signed the contract dated June 3, 2002, and when New Line represented 

in its letter of July 10, 2002, that if Portman met certain conditions, defendant would 

move forward with production of the project. In addition, New Line allegedly falsely 

represented that it intended to continue its involvement with Portman by engaging 

Portman in five months of dialogue “while working duplicitously and fraudulently in 

concert with UTA packaging ‘Wedding Crashers’ with UTA leading comedic talent 

. . . and by New Line positioning itself to benefit financially from this secret procurement 

of UTA talent.” 

 In addition, Portman alleged that on the release date of Wedding Crashers, New 

Line and Kim intentionally signed and filed a false declaration under oath, which 

“omitted, misrepresented and distorted the truth” and was “a bad faith attempt by New 

Line to defraud [Portman] of his rights in the party crashing project, mislead the court, 
16 

and cover-up the extent of [New Line’s] concealment.” Portman alleged that he 

justifiably relied on these misrepresentations, resulting in financial damage and damage 

to his career. 

 4. Application of statute of limitations 

 Portman’s allegations of fraud are centered around the alleged false promise that 

New Line intended to proceed with Portman’s party crashing project and the alleged 

concealment of New Line’s intention to go forward with the project without Portman or 

the UTA talent affiliated with his proposal. 

 The allegations of the complaint reveal that Wedding Crashers was released to the 

general public on July 15, 2005. Again, Portman does not allege that he was unaware of 

the release of that movie, or of the storyline, which he alleges was primarily about party 

crashing. Thus, on July 15, 2005, Portman was “aware of facts which would make a 

reasonably prudent person suspicious” of the fraud. (Miller v. Bechtel Corp. (1983) 33 

Cal.3d 868, 875.) On that date, Portman had a duty to investigate further, and he is 

charged with knowledge of matters which would have been revealed by such an 

investigation. (Ibid.) Because Portman did not file his cause of action for fraud and 

deceit against New Line until July 13, 2009 -- more than three years after it accrued -- it 

is barred as a matter of law, and the demurrer to this cause of action was properly 

sustained. 

D. Breach of implied covenant of good faith and fair dealing 

 “A cause of action for breach of the implied covenant of good faith and fair 

dealing is premised on the breach of a specific contractual obligation. [Citation.]” 

(Innovative Business Partnerships, Inc. v. Inland Counties Regional Center, Inc. (2011) 

194 Cal.App.4th 623, 631.) “‘In essence, the covenant is implied as a supplement to the 

express contractual covenants, to prevent a contracting party from engaging in conduct 

which (while not technically transgressing the express covenants) frustrates the other 

party’s rights to the benefits of the contract.’” (Racine & Laramie, Ltd. v. Department of 

Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) “A breach of the covenant 

of good faith and fair dealing does not give rise to a cause of action separate from a cause 
17 

of action for breach of the contract containing the covenant. [Citation.]” (Smith v. 

International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1644, fn. 

3.) 

 Because Portman’s cause of action for breach of the implied covenant of good 

faith and fair dealing is based “upon a contract, obligation or liability not founded upon 

an instrument of writing,” it is subject to the two-year statute of limitations found in Code 

of Civil Procedure section 339.6

 As set forth above, Wedding Crashers was released to the general public on July 

15, 2005. Since this cause of action was not filed until July 2009, it is barred under the 

two-year statute of limitations and thus fails as a matter of law. The trial court properly 

sustained New Line’s demurrer to Portman’s cause of action for breach of implied 

covenant of good faith and fair dealing on statute of limitations grounds. 

III. Not an abuse of discretion to grant New Line’s request for judicial notice 

 Portman argues that the trial court erred in granting New Line’s request for 

judicial notice filed concurrently with its demurrer to the SAC. Portman contends that 

the court erred in taking judicial notice of documents which it previously declined to 

judicially notice. In addition, Portman claims, based on the content of those documents, 

the court arbitrarily adopted the date of the filing of the Reginald action as the 

commencement date of the running of the statute of limitations in this case. 

 The documents which the court judicially noticed in connection with the demurrer 

to the SAC were: (1) the complaint filed by Reginald on August 2, 2004; (2) the first 

 6 New Line suggests that Portman attempted to plead his breach of the covenant of 

good faith and fair dealing cause of action as a tort, therefore the three-year statute of 

limitations under Code of Civil Procedure section 338, subdivision (d), applies. We find 

that this cause of action can only be considered as a contract action. As explained in 

Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683, “[t]he covenant of good faith 

and fair dealing was developed in the contract arena and is aimed at making effective the 

agreement’s promises.” Because the covenant “is a contract term, . . . compensation for 

its breach has almost always been limited to contract rather than tort remedies.” (Id. at p. 

684.) The single exception has been in the context of insurance law. (Ibid.; see also 

Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102 [favoring “a general 

rule precluding tort recovery for noninsurance contract breach”].) 
18 

amended complaint filed in the Reginald action on December 27, 2004; and (3) the fact 

that Portman was deposed twice in the Reginald action, once on May 10, 2005 and once 

on May 25, 2005, as reflected in excerpts of the transcript of the deposition. 

 We review a trial court’s ruling on a request for judicial notice as an abuse of 

discretion. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) A 

court may properly take judicial notice of the records of any court of this state. (Evid. 

Code, § 452, subd. (d).) Thus, the court’s decision to take judicial notice of the pleadings 

filed in the Reginald action was within the limits of the court’s discretion and did not 

constitute an abuse of that discretion. 

 A court may also take judicial notice of facts that are not reasonably subject to 

dispute and are capable of immediate and accurate determination by sources of 

reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h).) “Strictly speaking, a 

court takes judicial notice of facts, not documents. [Citation.]” (Fontenot v. Wells Fargo 

Bank, N.A., supra, 198 Cal.App.4th at p. 265.) The court’s decision to take judicial 

notice of the fact that Portman was deposed in the Reginald action on May 10, 2005, and 

May 25, 2005, was within the limits of the court’s discretion under Evidence Code 

section 452, subdivision (h), and did not constitute an abuse of discretion. 

 Portman alleges that the court acted in excess of its authority by misinterpreting 

the documents and mischaracterizing the relationship between Portman and Reginald. 

Portman has failed to convince us that the trial court interpreted the documents, and any 

mischaracterization of the relationship between Portman and Reginald is irrelevant and 

therefore harmless. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 

[“‘the improper taking of notice is subject to harmless error analysis’”].) 

IV. Not an abuse of discretion to deny leave to amend 

 The trial court denied Portman leave to amend after his third attempt to adequately 

allege his claims against New Line. “[A] demurrer may be sustained without leave to 

amend where it is probable from the nature of the complaint and the previous 

unsuccessful attempt[s] to plead that the plaintiff cannot state a cause of action.” (Tyco 

Industries, Inc. v. Superior Court (1985) 164 Cal.App.3d 148, 153.) In addition, Portman 
19 

has not made any showing as to how he might cure the defects of the SAC. (See 

Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [plaintiffs have “the 

burden of proving that an amendment would cure the defect[s]”].) We therefore conclude 

that the trial court did not abuse its discretion in denying Portman leave to amend. 

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 ____________________________, J. 

 CHAVEZ 

We concur: 

____________________________, P. J. 

BOREN 

____________________________, J. 

ASHMANN-GERST