Judge: Christopher K. Lui, Case: 22STCV09697, Date: 2023-02-07 Tentative Ruling
Case Number: 22STCV09697 Hearing Date: February 7, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer and motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendants exercised undue influence over decedent, Plaintiff’s wife who was dying of cancer, and caused her to transfer personal property and her interest in real property to Defendants without Plaintiff’s knowledge.
Defendants Mui Phung Lieng, Kin A. Zamora Lieng, and Francisco Armando Zamora demur to the First Amended Complaint and move to strike portions thereof.
TENTATIVE RULING
Defendants Mui Phung Lieng, Kin A. Zamora Lieng, and Francisco Armando Zamora demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the first, second, third, fourth, eighth, ninth, tenth, twelfth, thirteenth, fourteenth and sixteenth causes of action and OVERRULED as to the fifteenth cause of action.
By virtue of the ruling on the demurrer, the motion to strike is MOOT as to the following: portions of the first cause of action at ¶¶ 47 – 52, the second cause of action at ¶ 55, the third cause of action at ¶¶ 63 – 68, and the fourth cause of action at ¶¶ 72 – 76.
The motion to strike is GRANTED without leave to amend as to the following: Paragraph 78 in its entirety; Paragraph 79, page 24, line 26-27: "; and by claiming a possessory right in the home Don and Red owned"; Paragraph 81, page 25, line 9: "having to litigate his title to his own property.
The motion to strike is DENIED as to the following: Paragraph 79, page 24, line 20: ", and bank accounts"; Paragraph 79, page 24, line 26: "by taking money from his accounts”; Paragraph 81, page 25, line 8: "the loss of money”; Paragraph 84, page 25, line 20: "savings,” Paragraph 85, page 25, line 22: ", and bank accounts," Paragraph 87, page 26, line 6: "the loss of money.”
Plaintiff is given 30 days’ leave to amend where indicated.
ANALYSIS
Demurrer
Meet and Confer
The Declaration of Matthew S. Urbach reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).
Discussion
Defendants Mui Phung Lieng, Kin A. Zamora Lieng, and Francisco Armando Zamora demur to the 1AC as follows:
1. First Cause of Action (Intentional Misrepresentation); Third Cause of Action (False Promise); Fourth Cause of Action (Negligent Misrepresentation).
Defendants argue that these fraud-based causes of action are not pled with the requisite specificity. Defendants also argue that these causes of action fail to allege Plaintiffs’ reasonable reliance and/or a causal connection.
“To
establish a claim for deceit based on intentional misrepresentation, the
plaintiff must prove seven essential elements: (1) the defendant represented to
the plaintiff that an important fact was true; (2) that representation was
false; (3) the defendant knew that the representation was false when the
defendant made it, or the defendant made the representation recklessly and
without regard for its truth; (4) the defendant intended that the plaintiff
rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was
harmed; and (7) the plaintiff's reliance on the defendant's representation was
a substantial factor in causing that harm to the plaintiff. (Citations
omitted.)” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 [italics omitted].)
The elements of a cause of action for a false
promise constituting fraud or deceit are: “(1) a promise made regarding a
material fact without any intention of performing it; (2) the existence of the
intent at the time of making the promise; (3) the promise was made with
intent to deceive or with intent to induce the party to whom it was made to
enter into the transaction; (4) the promise was relied on by the party to whom
it was made; (5) the party making the promise did not perform; (6) the party to
whom the promise was made was injured.” (Regus v. Schartkoff
(1957) 156 Cal.App.2d 382, 389.)
Fraud must be pleaded with specificity rather than with “ ‘general and
conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th
167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity
requirement means a plaintiff must allege facts showing how, when, where, to
whom, and by what means the representations were made, and, in the case of a
corporate defendant, the plaintiff must allege the names of the persons who
made the representations, their authority to speak on behalf of the corporation,
to whom they spoke, what they said or wrote, and when the representation was
made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)
We enforce the specificity requirement in consideration of its two
purposes. The first purpose is to give notice to the defendant with
sufficiently definite charges that the defendant can meet them. (Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216
[197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed
out meritless fraud claims on the basis of the pleadings; thus, “the pleading
should be sufficient ‘ “to enable the court to determine whether, on the facts
pleaded, there is any foundation, prima facie at least, for the charge of
fraud.” ’ ” (Id. at pp. 216–217.)
(West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 793.)
“The elements of negligent misrepresentation are ‘(1) the
misrepresentation of a past or existing material fact, (2) without reasonable
ground for believing it to be true, (3) with intent to induce another's
reliance on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.’ (Citation omitted.)” (National
Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.)
Here, the first,
third and fourth causes of action do not allege which Defendant said exactly what
to Plaintiff, when and in what manner (orally or in writing), why such representation
was known to be false when made (first and third causes of action) or was made
without a reasonable basis for believing it to be true (fourth cause of action),
and how Plaintiff relied upon such representation, which caused him out-of-pocket
loss.
The fraud plaintiff must also allege his damages were caused by the
actions he took in reliance on the defendant's misrepresentations. (Goehring v.
Chapman University (2004) 121 Cal.App.4th 353, 364–365 [17 Cal. Rptr. 3d 39].)
“ ‘Assuming … a claimant's reliance on the actionable misrepresentation, no
liability attaches if the damages sustained were otherwise inevitable or due to
unrelated causes.’ [Citation.]” (Id. at p. 365.) If the defrauded plaintiff would
have suffered the alleged damage even in the absence of the fraudulent
inducement, causation cannot be alleged and a fraud cause of action cannot be
sustained. (See Mazur, supra, 122 Cal.App.4th 1400, 1415.)
(Beckwith v. Dahl (2012) 205 Cal.App.4th
1039, 1064.)
Cases involving fraud where property was not
acquired have limited damages to out-of-pocket losses. Thus, in Gray v. Don
Miller & Associates, Inc. (1984) 35 Cal.3d 498 [198 Cal.Rptr. 551, 674 P.2d
253, 44 A.L.R.4th 763] defendant falsely represented that plaintiff could
acquire certain property upon which to expand his business. When plaintiff
discovered the representation was false, he sought damages for amounts spent in
reliance upon the certainty of sale plus "delay damages." The delay
damages arose because the cost to construct the planned improvements
increased during the time plaintiff waited for the sale to close. The
Supreme Court reversed the delay damage award, stating plaintiff "was
entitled only to the 'actual losses suffered because of the misrepresentation.'
[Citation.] His inability to begin construction on the property was not caused
by [the] misrepresentation, but by the seller's refusal to accept his offer of
sale." (Id. at p. 504.) Gray holds that a defrauded party may recoup his out-of-pocket losses and expenditures
in reliance on the fraud, but he may not recover benefit-of-the-bargain damages
(i.e., damages placing him in the economic position he would have occupied had
the representation been true), at least where the recovery is not premised on a
specific property actually acquired by the defrauded party.
(Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 54 [bold emphasis
added].)
Here, Plaintiff does not allege that
he incurred out-of-pocket expenses in reliance upon Defendants’ representations.
Nor does Plaintiff allege that he conveyed specific property to Defendants in
reliance upon Defendants’ representations made to him. These causes of action
fail because of the above defects.
As such, the Court does not address
Defendants’ argument that the first and fourth causes of action fail as a matter
of law because the alleged representations are not representations of fact.
The demurrer to the first, third and
fourth causes of action is SUSTAINED with leave to amend.
2. Second Cause
of Action (Concealment).
Defendants
argue that they did not owe any duty of disclosure to Plaintiff by virtue of
their relation to Red or Plaintiff. Defendants also argue that there is no
allegation that they concealed facts, as opposed to actions.
[T]he elements of a cause of action for fraud
based on concealment are: “ ‘(1) the defendant must have concealed or
suppressed a material fact, (2) the defendant must have been under a duty to
disclose the fact to the plaintiff, (3) the defendant must have intentionally
concealed or suppressed the fact with the intent to defraud the plaintiff, (4)
the plaintiff must have been unaware of the fact and would not have acted as he
did if he had known of the concealed or suppressed fact, and (5) as a result of
the concealment or suppression of the fact, the plaintiff must have sustained
damage. [Citation.]’ [Citation.]” (Citation omitted.)
(Kaldenbach v. Mutual of Omaha Life
Ins. Co. (2009) 178 Cal.App.4th 830, 850.)
Less
specificity is required to plead fraud by concealment. (Jones
v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199.) However, “[i]f a fraud
claim is based upon failure to disclose, and ‘the duty to disclose arises from
the making of representations that were misleading or false, then those allegations
should be described.’ (Citation omitted.)” (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262.)
“There are ‘four circumstances in which
nondisclosure or concealment may constitute actionable fraud: (1) when the
defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) when the defendant actively conceals a material fact from the plaintiff;
and (4) when the defendant makes partial representations but also suppresses
some material facts. [Citation.]’ ” (Citations omitted.) Where, as here, there
is no fiduciary relationship, the duty to disclose generally presupposes a
relationship grounded in “some sort of transaction between the parties.
[Citations.] Thus, a duty to disclose may arise from the relationship between
seller and buyer, employer and prospective employee, doctor and patient, or parties
entering into any kind of contractual agreement. [Citation.]” (Citation
omitted.)
(OCM Principal Opportunities Fund, L.P. v.
CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859.)
Further, as
Defendants argue, there is no duty to disclose an intent to commit a fraud:
Although ‘inferentially, everyone has a
duty to refrain from committing intentionally tortious conduct against another’
[citation], it does not follow that one who intends to commit a tort owes a
duty to disclose that intention to his or her intended victim. The general duty is not to warn of the
intent to commit wrongful acts, but to refrain from committing them. We are aware of no authority supporting
the imposition of additional liability on an intentional tortfeasor for failing
to disclose his or her tortious intent before committing a tort.” (Citations
omitted.)
(Bank of America Corp. v.
Superior Court (2011) 198 Cal.App.4th 862, 872 [italics in original, bold
emphasis added].)
Here, the gist
f this cause of action is that:
Defendants and each of them failed to
tell Don all the lies and misrepresentations that they fed to the cognitively
impaired Red which made her depressed, anxious, confused, and angry more so than
she was already feeling from the cancer and medications. Defendants and each of
them never told Don that while he was caring for his wife, they were planning
to take the couple's assets and had filed a series of fraudulent deeds.
(2AC, ¶ 55.)
However,
the Court is unaware of any case law holding that a person’s in-laws owe a
fiduciary duty or are in a relationship so as to disclose tortious actions, to
another in-law.
[T]he trial court did not cite, and we
have not found, any authority to support the notion that one owes fiduciary
duties simply by being a trusted in-law or soon-to-be ex-in-law. “ ¿‘[B]efore a
person can be charged with a fiduciary obligation, he must either knowingly
undertake to act on behalf and for the benefit of another, or must enter into a
relationship which imposes that undertaking as a matter of law.’” (Citation
omitted.)
(McMillin v. Eare (2021) 70
Cal. App. 5th 893, 912.)
As such,
this cause of action fails to plead facts sufficient to state a cause of
action.
The
demurrer to the second cause of action is SUSTAINED with leave to amend.
3. Eighth
Cause of Action (Conspiracy).
Defendants
argue that conspiracy is not an independent cause of action.
“Conspiracy is not a cause of action,
but a legal doctrine that imposes liability on persons who, although not
actually committing a tort themselves, share with the immediate tortfeasors a
common plan or design in its perpetration.” (Applied Equipment Corp. v. Litton
Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511 [28 Cal. Rptr. 2d 475, 869 P.2d
454].) A civil conspiracy “must be activated by the commission of an actual
tort.” (Id. at p. 511.)
(Arei II Cases (2013) 216
Cal.App.4th 1004, 1021-25.)
Here, the eighth cause of
action does not adequately identify the underlying tort. To the extent
Plaintiff would plead conspiracy to commit conversion, this is already pled in
the fifth cause of action, and thus, would be redundant.
The
demurrer to the eighth cause of action is SUSTAINED with leave to amend, to
plead conspiracy to commit a specific tort.
4. Ninth
Cause of Action (Financial Abuse and Violation of Dependent Adult Civil Protection
Act).
Defendants
argue that Plaintiff does not allege that he is an elder or dependent adult.
Defendants
argue that Plaintiff does not allege how Red was harmed. The Court need not address
this cause of action as to Red because the 2AC does not allege a survivor claim
for violation of the Elder Abuse Act on behalf of Red.
In this, she obscures the legal distinction between
survivor and wrongful death claims. She also overlooks the fact that these
respective claims are brought by or on behalf of different parties and that the Elder Abuse Act,
which provides for specified claims and remedies only to victims of the abuse, does not change this
fundamental legal principle. A survivor claim, by definition, is
asserted on behalf of such a victim—here, the decedent, Gilbert Quiroz—whereas
a wrongful death claim is asserted by a decedent's heir, on his or her own
behalf. Simply put, a broadly construed standing provision under the Elder
Abuse Act does not morph an ordinary wrongful death claim into a statutory
survivor claim for dependent adult abuse—or vice versa. Nor does it change the
separate character of the injuries that are compensable through these distinct
claims that are brought by different parties
(Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.)
As to
Plaintiff, he does not allege that he was 65 or older at the time of the
alleged violations of the Elder Abuse Act committed against him. (Welf. & Inst.
Code, § 15610.27.)
The demurrer
to the ninth cause of action is SUSTAINED with leave to amend.
5. Tenth
Cause of Action (Fraudulent Transfers).
Defendants
argue that Plaintiff does not allege that they were debtors and the was a
creditor for purposes of a fraudulent transfer claim for purposes of Civil Code
§§ 3439 et seq.
However,
the tenth cause of action is not based on Civil Code §§ 3439 et seq. As such,
it may be construed as a common law claim, which is not preempted by Civil
Code, § 3439 et seq. (Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal
App.4th 834, 849-50.)
Nonetheless, even under
the common law cause of action, there must be a debtor-creditor relationship:
A fraudulent
conveyance is a transfer by the debtor of property to a third person undertaken
with the intent to prevent a creditor from reaching that interest to satisfy
its claim. However, a conveyance will not be considered fraudulent if the
debtor merely transfers property which is otherwise exempt from liability for
debts. That is, because the theory of the law is that it is fraudulent for a
judgment debtor to divest himself of assets against which the creditor could
execute, if execution by the creditor would be barred while the property
is in the possession of the debtor, then the debtor's conveyance of that exempt
property to a third person is not fraudulent.
(Yaesu Electronics Corp. v. Tamura
(1994) 28 Cal.App.4th 8, 13.)
Here, the
2AC does not allege such a relationship between Plaintiff and Defendants. Moreover,
this cause of action alleges that Defendants transferred property out of
Plaintiff’s own possession/control. (2AC, ¶ 112.) While this may constitute
conversion of Plaintiff’s property, it does not qualify as a fraudulent transfer
of Defendants’ property as debtor to place it out of Plaintiff’s reach as
creditor.
The
demurrer to the tenth cause of action is SUSTAINED with leave to amend.
6. Twelfth Cause
of Action (Intrusion Into Private Affairs).
Defendants
argue that Plaintiff had no objectively reasonable expectation of privacy
violated by the “learning” of the joint bank accounts, real property, assets, beneficiary
accounts, life insurance, employment benefits, and estate planning of Plaintiff
and Red, through Red, who jointly owned these items.
A privacy violation based on the common law tort of intrusion has two
elements. First, the defendant must intentionally intrude into a place,
conversation, or matter as to which the plaintiff has a reasonable expectation
of privacy. Second, the intrusion must occur in a manner highly offensive to a
reasonable person. (Citations omitted.) These limitations on the right to
privacy are not insignificant. (Citation omitted.) Nonetheless, the cause of
action recognizes a measure of personal control over the individual's autonomy,
dignity, and serenity. (Citation omitted.) The gravamen is the mental anguish
sustained when both conditions of liability exist. (Citation omitted.)
(Hernandez v. Hillsides, Inc. (2009) 47
Cal.4th 272, 286.)
The right of privacy is an
“‘inalienable right’” secured by article I, section 1 of the California
Constitution. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652,
656 [125 Cal. Rptr. 553, 542 P.2d 977].) The right of privacy protects against
the unwarranted, compelled disclosure of private or personal information and
“extends to one's confidential financial affairs as well as to the details of
one's personal life.” (Ibid.) “‘Personal financial information comes within the
zone of privacy protected by article I, section 1 of the California
Constitution.’” (Citations omitted.)
(SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 754.)
Here,
Plaintiff would have a reasonable expectation of privacy in his and his wife’s
financial affairs as against his in-laws, as a jury could find that a
reasonable person would not disclose the entirety of their financial affairs to
their family members. The 2AC alleges that Red was not capable of giving informed
consent due to her impaired cognitive function, confusion and small periods of
clarity. (2AC, ¶ 25.) It is a question of fact as to whether her consent to
Defendants’ accessing Plaintiff and Red’s accounts, passwords, computer, tax
returns, bank statements, loans, etc. (2AC, ¶ 123) was valid due to her mental
state.
As such,
the demurrer to the twelfth cause of action is OVERRULED..
7. Thirteenth
Cause of Action (Negligence).
Defendants
argue that Plaintiff fails to allege the existence of a legal duty owed to Plaintiff,
simply by virtue of them saying they would take care of Red. Moreover, the majority
of acts pled were directed toward Red, and could not constitute negligence as
to Plaintiff.
To prevail in an action for negligence, the plaintiff
must demonstrate that the defendant owed a duty to the plaintiff, that the
defendant breached that duty, and that the breach proximately caused the plaintiff's
injuries. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,
1145 [12 Cal. Rptr. 3d 615, 88 P.3d 517].)
The existence of a legal duty is a question of law
for the court. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 [30
Cal. Rptr. 3d 145, [*1189] 113 P.3d 1159].) “As this court has
explained, ‘duty’ is not an immutable fact of nature ‘ “but only an expression
of the sum total of those considerations of policy which lead the law to
say that the particular plaintiff is entitled to protection.” ’ [Citations.] In
California, the general rule is that all persons have a duty ‘ “to use ordinary
care to prevent others being injured as the result of their conduct. …” ’ (Citations
omitted.) Foreseeability of harm is a “ ‘crucial factor’ ” in determining the
existence and scope of that duty. (Citation omitted.)
(John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1188-89.)
Here, Plaintiff
alleges that by claiming to take care of Red and by claiming to help Plaintiff,
Defendants assumed a duty of care toward Plaintiff. (2AC, ¶ 128.) This
conclusory allegation need not be accepted as true for purposes of this demurrer.
“Although a court must on demurrer accept as true properly pleaded
facts, a demurrer does not admit contentions or conclusions of law or fact.” (Freeman
v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 185.)
If Defendants undertook to help Red,
they owed a duty of care toward her. (2AC, ¶ 128.) Moreover, the allegation
that Defendants would claim to help Plaintiff (id.) is so vague that it
cannot be ascertained what this entailed, and why it imposed a duty owed toward
Plaintiff. Further, ¶ 128 alleges intentional, not negligent, conduct.
The demurrer to the thirteenth cause
of action is SUSTAINED with leave to amend.
8. Fourteenth
Cause of Action (Punitive Damages).
Defendants argue that punitive
damages is not an independent cause of action. (CRST, Inc. v. Superior Court
(2017) 11 Cal.App.5th 1255, 1264.) This argument is correct.
The demurrer to the fourteenth
cause of action is SUSTAINED with leave to amend to plead punitive damages in
connection with a specific cause of action, not as an independent cause of
action.
9. Fifteenth
Cause of Action (Declaratory Relief).
The remedies
provided by this chapter [pertaining to declaratory relief] are cumulative, and
shall not be construed as restricting any remedy, provisional or otherwise,
provided by law for the benefit of any party to such action, and no judgment
under this chapter shall preclude any party from obtaining additional relief
based upon the same facts.
(Civ. Proc. Code, § 1062.)
The
demurrer to the fifteenth cause of action is OVERRULED.
10. Sixteenth Cause
of Action (Injunctive Relief).
Defendants
argue that injunctive relief is not a cause of action.
“Correctly,
the respondents state that a request for injunctive relief is not a cause
of action. ( [*985] Shell Oil Co. v. Richter
(1942) 52 Cal. App. 2d 164, 168 [125 P.2d 930].) Therefore, we cannot let this
‘cause of action’ stand.” (Shamsian v. Atlantic Richfield Co.
(2003) 107 Cal.App.4th 967, 984-985.)
Accordingly,
the demurrer to the sixteenth cause of action is SUSTAINED with leave to amend
to plead injunctive relief as a remedy in conjunction with one of the other
causes of action.
Motion To Strike
Meet and Confer
The Declaration of Matthew S. Urbach
reflects that Plaintiff’s counsel did not respond to meet and confer efforts.
This satisfies CCP § 435.5(a)(3)(B).
Discussion
Defendants Mui Phung Lieng, Kin A. Zamora Lieng, and Francisco Armando Zamora move to strike certain portions of the 1AC. By virtue of the ruling on the demurrer, the motion to strike is MOOT as to the following
The motion to strike portions of the first cause of action at ¶¶ 47 – 52, the second cause of action at ¶ 55, the third cause of action at ¶¶ 63 – 68, and the fourth cause of action at ¶¶ 72 – 76. The Court will address the remainder of the motion to strike which was not mooted by the ruling on the demurrer.
¿ The following allegations alleged in support of the fifth cause of action for conversion
¿ Paragraph 78 in its entirety; Paragraph
79, page 24, line 26-27: "; and by claiming a possessory right in the home
Don and Red owned"; Paragraph 81, page 25, line 9: "having to
litigate his title to his own property.
GRANTED
without leave to amend.
“The tort of conversion
applies to personal property, not real property. (5 Witkin, Summary of Cal.
Law, supra, Torts, § 699, p. 1023.)” (Salma v. Capon (2008)
161 Cal.App.4th 1275, 1295.)
¿ Paragraph 79, page 24, line 20: ",
and bank accounts"; Paragraph 79, page 24, line 26: "by taking money
from his accounts”; Paragraph 81, page 25, line 8: "the loss of money.”
DENIED.
Money
taken from a bank account is capable of being identified as a specific sum by
reference to the account records, which suffices for conversion:
“Conversion
is the wrongful exercise of dominion over the property of another.” (Citation omitted.)
Proof of conversion requires a showing of ownership or right to possession of
the property at the time of the conversion, the defendant's conversion by a
wrongful act or disposition of property rights, and resulting damages. (Citations
omitted.) “Money can be the subject of an action for conversion if a specific
sum capable of identification is involved.” (Citation omitted.)
(Avidor
v. Sutter's Place, Inc. (2013) 212 Cal. App. 4th 1439, 1452.)
¿ The following allegations alleged in
support of the sixth cause of action for trespass to chattels:
¿ Paragraph 84, page 25, line 20:
"savings,” Paragraph 85, page 25, line 22: ", and bank accounts
Paragraph 87, page 26, line 6: "the loss of money.”
DENIED.
Defendant argues that these allegations must be stricken because money cannot be the subject of a trespass to chattel cause of action unless a specific sum capable of identification is involved. As discussed above, money taken from a bank account is capable of being identified as a specific sum by reference to the account records.
Plaintiff is given 30 days’ leave to amend where indicated.