Judge Barbara M. Scheper, Case Number: 23STCV23121, Date: 2024-02-22 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCV23121, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV23121 Hearing Date: February 22, 2024 Dept: 30

Dept. 30

Calendar No.

Flynn vs. Huart, et. al., Case No. 23STCV23121

Tentative Ruling re: Defendants’ Demurrer to Complaint; Motion to Strike

Defendants Warren Huart and Lancaster Audio, LLC (hereinafter “Defendants”), demurs to the third and fourth causes of action alleged in the Complaint. The demurrer is sustained with ten (10) days leave to amend. The motion to strike if moot.

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action and it cannot be determined how, or in what manner, Defendants committed or can be liable for such cause of action. (Code Civ. Proc. §§ 430.10(e) and 430.10(f).)

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

Third Cause of Action—Breach of Fiduciary Duty

The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) As to the first element, the basic fiduciary obligations are twofold: undivided loyalty and confidentiality. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1102, superseded by statute on different issue as stated in Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 396.) A fiduciary or confidential obligation or relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act to take advantage of the other’s interest without that person’s knowledge or consent. (Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 35.)

Because of the vagueness of the common law definition of the confidential relation that gives rise to a fiduciary duty, and the range of the relationships that can potentially be characterized as fiduciary, the “essential elements” have been distilled as follows: (1) the vulnerability of one party to the other which (2) results in the empowerment of the stronger party by the weaker which (3) empowerment has been solicited or accepted by the stronger party and (4) prevents the weaker party from effectively protecting itself. (Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1161.) Vulnerability, in short, is the necessary predicate of a confidential relation, and the law treats it as essential. (Ibid.)

The complaint alleges that “a relationship of trust, confidence, integrity, and fidelity has been created between Defendants, on the one hand, and Plaintiff, on the other hand.” (Complaint, ¶ 32.) The complaint alleges that “[a]mong other things, Defendants have acted as Plaintiff’s fiduciary by keeping valuable musical equipment on behalf of and owned by Plaintiff and by taking the responsibility to maintain the equipment in good condition and not sell the equipment.” (Complaint, ¶ 32.) Defendants are alleged to have breached their fiduciary duties by “(1) failing to maintain certain of Plaintiff’s equipment free from damage, [and] (2) selling certain of Plaintiff’s equipment without Plaintiff’s permission.” (Complaint, ¶ 33.)

The Court finds that Plaintiff has not alleged sufficient facts to state a cause of action for breach of fiduciary duty. Plaintiff has not alleged that Defendants accepted Plaintiff’s musical equipment in the capacity of a fiduciary. A fiduciary duty does not arise based on the mere entrustment of property to another. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 387.)

Fourth Cause of Action—Violation of Penal Code § 496

“Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.” (Pen. Code § 496(a).) “The elements of receiving stolen property under section 496(a) are (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property.” (People v. Coca (2023) 96 Cal.App.5th 451, 459.) Pursuant to Pen. Code Section 496(c) “[a]ny person injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” As a general rule, “statutory causes of action must be pleaded with particularity.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.)

Here, the Court finds that Plaintiff has not stated a cause of action under Penal Code § 496 with particularity. Plaintiff makes the conclusory allegation that “Defendants have obtained Plaintiff’s musical equipment in a manner constituting theft or extortion and sold and/or withheld, or aided in selling and/or withholding, the property from Plaintiff (the owner), knowing the property to be maintained in a manner constituting theft or extortion.” (Complaint, ¶ 38.) Plaintiff does not allege that the musical equipment was stolen.

Based on the foregoing, the Court finds that the motion to strike is moot.