Filed 3/6/13 Portman v. New Line Cinema CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Office s 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 Port man & 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 concealme nt, unjust enrichment, and breach of the implied covenant of good faith and fair dealing. Portman alleged that he is a “devel oper 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 thro ugh “an intermediary, Peter
Kirshenbaum.” 1 On June 3, 2002, Portman ente red a signed written agreement with Kirshenbaum “related to the exploitation of Portman’s motion picture project on party crashing.” The agreement between Portma n 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 indivi duals 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)] rega rding the development of [Portman’s] party crashing comedy project.” On or around July 3, 2002, Portman pers onally delivered to New Line a copy of Portman’s party crashing s ubmission package which cons isted of: (1) a detailed submission letter; (2) a book entitled “The Pa rty Crasher’s Handbook”; and (3) a copy of the business arrangement Portman signed wi th the author of the Party Crasher’s

1 Kirshenbaum’s name was spelled differe ntly 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 proj ect to studios. In the text of Portman’s submission letter, Portman again disclosed th at 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 th at Portman’s original choice of leading comedic actors opted not to participate in the pr oject. Subsequent to this event, Portman alleged, New Line and UTA simultaneously stopped taking Portman’s telephone calls
and refused Portman access to relevant inform ation 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 packag e 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 abou t July 15, 2005, New Line made false and misleading statements in a de claration filed in superior court denying the allegations
described above. Portman alleged, on information and belie f, that as of January 1, 2006, the motion picture Wedding Cr ashers grossed $210 million in the domestic United States marketplace; $78 million in the foreign mark etplace; and a projected $235 million in DVD revenue. Portman alleged that he di d 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 applicab le statutes of limitation; and that they
failed to state causes of action. In its me morandum 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 co nceived by Reginald and pitched to New Line through Portman. Reginald’s lawsuit (the Reginald action) was dismissed on the ground that Wedding Crashers wa s 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 su stained New Line’s demurrer with 30 days to amend as to all causes of action on the gr ound that they appe ared time-barred as a matter of law, and Portman’ s delayed discovery allegati ons 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 whethe r the alleged contract was written, oral or implied and that the material te rms 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 f acts 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 plea ding. 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 trade5 secrets, fraud and deceit, unjust enrichment, and breach of imp lied covenant of good faith and fair dealing. On April 14, 2010, New Line filed a demu rrer to the FAC. On the same date, New Line filed a request for judicial notice, as king 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 wa s deposed twice in the Reginald action; and (4) the fact that Portman submitted two declarations in the Reginald action. On November 10, 20 10, 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 a ttempted delayed discov ery allegations were inadequate. The court stated, “[Portman] fail s 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 issu e.” 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 gi ven 30 days leave to amend as to the first, second, th ird 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 demurr ed 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 acti on; (2) the first amended compla int in the Reginald action; and (3) the fact that Portman was deposed tw ice in the Reginald action, once on May 10, 2005, and once on May 25, 2005 . In its memorandum supp orting 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 testim ony, but simply to take judicial notice of6 the existence of the documents and the fact that Portman was deposed twice in the Reginald action. New Line’s demurrer was heard on Apr il 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 th at 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 y ears after the Reginald action was filed. The
court found that these events put Portman on notice of info rmation or circumstances to put a reasonable person on i nquiry 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 earlie r discovery despite reasonabl e diligence.’ [Citation.]” (Citing Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) The court noted that despite three chances, Port man 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 awar ded costs in the amount of $1,665.99. On June 10, 2011, Portman filed hi s 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 st andard of review is well settle d. 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 c ourt to sustain a demurrer when the plaintiff7 has stated a cause of action under any possibl e legal theory. [Citation.] And it is an
abuse of discretion to sustain a demurrer with out leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by th e defendant can be cured by amendment. [Citation.]” ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966- 967.) The legal sufficien cy 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 re view 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 reason able person on inquiry notice of the potential claim. ( Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 11 10.) 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 sust ained New Line’s demurrer to all four causes of action on the grounds that they were barred by the a pplicable 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 sustaine d 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.4t h 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 or8 a copy of the written agreement must be at tached and incorporat ed by reference. [Citation.]” ( Ibid .) 2. Applicable statute of limitations
The statute of limitations for breach of a written contract is f our years under Code
of Civil Procedure section 33 7. 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 di scovery rule may be appropriate in cases
where the breach is commi tted in secret. ( William L. Lyon & Associat es, 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, whethe r the agreement is oral or implied in fact. (Code Civ. Proc., § 339.) A claim for breach of oral contract is also su bject to the delayed discovery
rule. It accrues when “the aggrieved party discovers, or sh ould 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 contr act cause of action as a claim for breach of written contract. However, New Line argues that the a llegations of the SAC do not support Portman’s claim that a written cont ract between Portman and New Line ever
existed. In order to determin e the applicable statute of lim itations, we must first examine the allegations of the SAC and determine wh ether they support a claim for breach of written contract, as Portman insists -- or onl y a claim for breach of oral or implied contract, as New Line insists. 3. Allegations regarding the format ion and the terms of the contract The allegations of the SAC establish th e following: Portman signed an agreement with Kirshenbaum “[t]hat Portma n enter into an agreement w ith New Line ‘solely related to a proposed feature motion picture producti on on “party crashers” in which New Line or its affiliated production entities agree to develop.’” New Line “reviewed and signed” the agreement between Kirshe nbaum and Portman, as well as an amendment to that agreement “related to future productions of [Portman] to be submitted to New Line at its9 invitation”; 2 on July 3, 2002, Portman delivered hi s party crashing presentation to New Line; at all times mentioned, Portman wa s operating in the “material capacity” of exclusive developer and co-executive produce r of the party crashing project to be financed and released by Ne w Line; on July 10, 2002, in response to Portman’s submission, New Line sent Po rtman 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 forwar d, such as attachment of talent; 3 and that thereafter, Portman and New Li ne engaged in “wr itten development, casting, production correspondence and telephonic dialogue for a period of five (5) m onths revolving around [Portman’s] party crashing project with Ji m Carrey, [Portman’s] original choice of leading UTA comedic talent to star in [Portm an’s] party crashing proj ect to be financed and released by New Line.” Based on these factual allegations, Po rtman 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 c ontract. In analyzing the sufficiency of the SAC, we may consider the differences betwee n 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 rec onsider 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 co mpensation 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 pr oduce, is not supported by th e factual allegations of the SAC. At best, Portman alleges that there wa s a written agreement related to his proposal, which New Line formally turned down on July 10, 2002. Wh ile Portman alleges that the parties then engaged in further correspondenc e and dialogue over th e next five months, there is no allegation of any further written contractual agreement arising out of those communications. Significantly, there is no al legation 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 speci fy any written obligations on th e part of New Line. Nor
has Portman attached to the SAC a copy of any written ag reement between Portman and New Line. In sum, we find that Portman ha s 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 Pa c. 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 ar e based on a written contract between Portman and New Line. At best, Po rtman 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 crashi ng 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 contr act 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 . . . , [New11 Line] and UTA simultaneously stopped taking Portman’s telephone calls and refused Portman access to all relevant information rega rding plaintiffs’ part y crashing project.” Portman further alleged that New Line “breached the writte n contract between [Portman] and [New Line] by releasing a fe ature comedic motion picture about party crashers now entitled ‘Wedding Crashers’ prod uced part and parcel with leading UTA comedic talent without compensation to [Portman].” Thus, the actual breach of the alleged agreement occurred so metime in December 2002, when Portman was excl uded from the project, and culminated in the release of Wedding Crashers in July 2005. 5. Delayed discovery allegations an d facts subject to judicial notice However, Portman alleges that he did not discover Ne w Line’s “secret combination designed to appr opriate [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 tim e 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 he rein 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 Ne w Line to conceal fro m [Portman] the full extent of [New Line’s] misappr opriation of [Portman’s] party crashing project.” Portman alleged that New Line’s “blockage of informa tion made it extremely difficult to a point of being ‘impossible’ for [Portman] to comme nce 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 resear ched the file of the Reginald action at the12 Santa Monica courthouse. Portman states that at that time he discovered a “false and misleading declaration” signed by Magnus Kim (Kim), a creativ e executive at New Line. In the allegedly false declaration, Kim ac knowledged receipt of the “Party Crashers Handbook” in July 2002, but claimed that he only “skimmed” the wo rk and determined that it did not merit further review by anyone at New Line. Kim also declared that he never discussed Portman’s party crashi ng project with anyone at New Line.
Other facts related to Portman’s claim of delayed discovery we re provided by New Line in its request for judicial notice. Th e request for judicial notice filed with New Line’s demurrer to the SAC sought judicial notice of the complain t in the Reginald action, filed on August 2, 2004, the first ame nded complaint in the Reginald action, filed on December 27, 2004, and the fact that Port man 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 lawsu it 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 compla int in this action was file d on July 13, 2009. The allegations of the complaint, and the facts ju dicially noticed, reveal that Portman should
have discovered his cause of action for brea ch of contract in May 2005, when he was deposed in the Reginald action, or at th e latest, in mid-July 2005, when Wedding Crashers was released to the general pub lic. However, even assuming that Portman discovered his claim as late as “mid-2006,” when he was delving in to 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 undermin e the suggestion that Portman did not discover his claims against New Line until “m id-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 ear lier than mid-2006 that he13 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 trad e secret knowing or having reason to know that the trade secret has been acquired by ‘imp roper 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 secr et 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 mi sappropriation 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 th ree years after the misappropriation is discovered or by the exercise of reasonabl e diligence should have been discovered.” 3. Facts alleged and subject to judicial notice Portman claims that his “motion pi cture comedy projec t 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 an d financial interests in the property and engaged in secret dealings with UTA relate d to the procurement of UTA leading comedic talent by replacing Jim Carrey with UTA le ading comedic talent Vince Vaughn and Owen Wilson,” and later accepted “Rachel McAdam s and director David Dobkin as part of this secretly acquire d 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 “blo ckage 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 th e procurement and acceptance of the leading UTA comedic talent until afte r 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 r easonable diligence, sh ould 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 ca use of action for defa mation 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 plainti ff 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 argum ent 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 wh en 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 pers on 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 char ged with knowledge of matters which would have been revealed by such an in vestigation. ( 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 fals ity; (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 ba sed on fraud is three years. (Code Civ. Proc., § 338, subd. (d).) The cause of acti on “is not deemed to have accrued until the discovery, by the aggrieved party, of the fa cts constituting the fraud or mistake.” ( Ibid. ) 3. Facts alleged Portman alleged that New Line falsely a nd 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 Ju ne 3, 2002, and when New Line represented in its letter of July 10, 2 002, that if Portman met cert ain 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 Cras hers’ with UTA leading comedic talent . . . and by New Line positioning itself to bene fit 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 file d 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 th e 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 financia l 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 crashi ng 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 th at 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 storylin e, which he alleges wa s primarily about party crashing. Thus, on July 15, 2005, Portma n was “aware of facts which would make a reasonably prudent person susp icious” of the fraud. ( Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.) On that date, Portman had a duty to i nvestigate 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 Ju ly 13, 2009 -- more than thre e years after it accrued -- it is barred as a matter of law, and the demu rrer 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 im plied covenant of good faith and fair dealing is premised on the breach of a speci fic contractual obligation. [Citation.]” ( Innovative Business Partnership s, Inc. v. Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th 623, 631.) “‘In esse nce, 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 th e 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 cause17 of action for breach of the contract c ontaining the c ovenant. [Citation.]” ( Smith v.
International Brotherhoo d of Electrical Workers (2003) 109 Cal.App.4th 1637, 1644, fn. 3.)
Because Portman’s cause of action for br each of the implied covenant of good faith and fair dealing is ba sed “upon a contract, obligation or liability not founded upon an instrument of writing,” it is subject to the two-year statute of limit ations found in Code
of Civil Procedure section 339. 6 As set forth above, Wedding Crashers was released to the gene ral 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 dea ling on statute of limitations grounds. III. Not an abuse of discretion to gran t New Line’s request for judicial notice Portman argues that the trial court e rred in granting New Line’s request for judicial notice filed concurrently with its de murrer to the SAC. Portman contends that the court erred in taking judicial notice of documents which it prev iously declined to judicially notice. In addition, Portman clai ms, 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 c ourt judicially noticed in connection with the demurrer to the SAC were: (1) the comp laint filed by Reginald on Au gust 2, 2004; (2) the first

6 New Line suggests that Portman attempte d 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 se ction 338, subdivision (d), applies. We find that this cause of action can only be consider ed 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 fo r noninsurance contract breach”].)18 amended complaint filed in the Reginald acti on on December 27, 2004; and (3) the fact that Portman was deposed twice in the Re ginald 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 reque st 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 deci sion to take judicial notice of the pleadings filed in the Reginald action was within the limits of the court’s di scretion 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. Co de, § 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 acti on on May 10, 2005, and May 25, 2005, was within the limits of th e court’s discretion under Evidence Code section 452, subdivision (h), and did no t constitute an abuse of discretion. Portman alleges that the court acted in excess of its authority by misinterpreting the documents and mischaracterizing the re lationship between Portman and Reginald.
Portman has failed to convince us that the trial court interp reted the documents, and any mischaracterization of the relationship betwee n 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 s ubject to harmless error analysis’”].)
IV. Not an abuse of discreti on to deny leave to amend
The trial court denied Portman leave to am end 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 natu re of the complain t 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, Portman19 has not made any showing as to how he mi ght 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 disc retion 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