Judge: Cynthia A Freeland, Case: 30-2023-01350198-CU-NP-CXC, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 30-2023-01350198-CU-NP-CXC WHITE VS ORANGE COUNTY SUPERIOR COURT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/03/2024

On March 20, 2024, the court entered an order directing the Litigation Coordinator of California State Prison, Mule Creek State Prison (the 'Prison'), to permit Plaintiff Sekayi Rudo White ('Plaintiff') to appear telephonically for the hearing on the pending demurrer. See ROA No. 43. The court since has been informed that the Prison has visiting in the area in which all court appearances are held and thus Plaintiff cannot appear at the March 29, 2024 hearing as directed. Accordingly, the court, on its own motion, continues this matter to Friday, April 5, 2024 at 8:30 a.m. in this department. In advance of the April 5, 2024 hearing, the court issues the following tentative ruling: Defendants Melissa Gort, Frank Davis, and Office of the Orange County District Attorney ('the 'OCDA' and, together with Ms. Gort and Mr. Davis, 'Defendants')'s demurrer to Plaintiff's Complaint is sustained.

The parties' requests for judicial notice ('RJN') are granted.

Factual Background and Procedural History This action involves Defendants' alleged conversion of Plaintiff's personal property, namely the contents of Plaintiff's criminal case file. Plaintiff has been incarcerated at the Prison since April 1, 2007. See Complaint, ¶ 14. The Complaint alleges that on November 16, 2007, Mr. Davis was appointed by the Orange County Superior Court (the 'OCSC') to represent Plaintiff in his pending criminal action, People v. White (Case No. 06HF2048) (the 'Criminal Action'). Ibid., ¶¶ 6, 15. On June 17, 2008, Mr. Davis submitted an investigation request to Ms. Gort, who was assigned as an investigator for Plaintiff's case.

Ibid., ¶¶ 4, 16. On October 27, 2008, Plaintiff asked Ms. Gort to subpoena cell phone records from Defendant T-Mobile U.S.A. Inc. ('T-Mobile'), which Ms. Gort accomplished the following day. Ibid., ¶¶ 17-18. On February 4, 2009, Ms. Gort delivered certain discovery to Plaintiff at the Prison. Plaintiff, however, contends that not all documents were produced that day. Ibid., ¶ 20. On February 10, 11, and 13, and March 11, 2009, Ms. Gort followed up with T-Mobile's Law Enforcement Relations Group regarding the outstanding documents. Ibid., ¶¶ 21-22. On March 11, 2009, Ms. Gort issued a second subpoena to T-Mobile for Plaintiff's and his ex-fiancée's cell phone records. Ibid., ¶ 23. On March 26, 2009, Plaintiff received from T-Mobile documents responsive to the second subpoena. Ibid., ¶ 24. On May 5, 2009, Plaintiff called Ms. Gort regarding further records from T-Mobile, which records he believes established his innocence in the Criminal Action. Ibid., ¶ 29. Ms. Gort did not respond. Ibid., ¶ 30.

On August 14, 2009, Defendant Frederick McBride substituted into the Criminal Action in place of Mr.

Davis as Plaintiff's attorney of record. Ibid., ¶ 34. Subsequently, Michael Molfetta substituted into the Calendar No.: Event ID:  TENTATIVE RULINGS

3072865 CASE NUMBER: CASE TITLE:  WHITE VS ORANGE COUNTY SUPERIOR COURT [IMAGED]  30-2023-01350198-CU-NP-CXC Criminal Action as Plaintiff's attorney. On December 31, 2013, Plaintiff's criminal conviction was affirmed on appeal. On March 19, 2014, the California Supreme Court denied Plaintiff's petition for review. Ibid., ¶ 35. On March 11, 2015, Plaintiff filed an action against Michael Molfetta for conversion and intentional infliction of emotional distress, White v. Molfetta (Case No. 30-2015-00777735-CU-FR-CJC) (the 'First Conversion Action'), alleging that Mr. Molfetta failed to provide Plaintiff access to, or a copy of, the entire contents of his criminal case file. Ibid., ¶ 36. Plaintiff received those documents in August 2016. Ibid., ¶ 37; Defendants' RJN, Ex. A. On June 11, 2019, a bench trial was conducted in the First Conversion Action. On August 1, 2019, the trial court found that Plaintiff failed to prove his claims against Mr.

Molfetta and entered judgment in Mr. Molfetta's favor. See Complaint, ¶ 39; Defendants' RJN, Ex. A. On May 24, 2021, the Fourth District Court of Appeal affirmed the trial court's judgment. See Defendants' RJN, Ex. B.

On September 20, 2023, Plaintiff commenced this action by filing a Complaint against the OCSC, T-Mobile, Defendants, Anthony Ferrentino, and Mercedes Gonzalez for conversion. See ROA No. 1.

The gravamen of the Complaint is that Defendants have engaged in a conspiracy to harm Plaintiff by denying him access to the entirety of his criminal case file, including investigative reports, audio CDs, and cell phone records, so that he may fully pursue all legal avenues available to him in his criminal proceedings. See Complaint, ¶¶ 55-61.

Legal Analysis A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.

The demurrer to the first cause of action for conversion is sustained. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of property; (2) the defendant's wrongful act toward or disposition of the property, interfering with the plaintiff's possession; and (3) damage to the plaintiff. See Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062, 1066. The statute of limitations on '[a]n action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property' is three years. See Cal. Code Civ. P. § 338(c)(1); AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal. App. 4th 631, 634. However, where, as here, a plaintiff is imprisoned on a criminal charge at the time the conversion claim accrues, 'the time of that disability is not part of the time limited for the commencement of the action, not to exceed two years.' Cal. Code Civ. P. § 352.1(a).

The court finds that the first cause of action is time-barred under California Code of Civil Procedure ('CCP') § 338(c)(1) even after accounting for the two-year tolling period set forth in CCP § 352.1(a). As to Ms. Gort, the Complaint is unclear as to when her alleged conversion of Plaintiff's criminal case file occurred. The Complaint alleges that on February 4, 2009, Ms. Gort delivered to Plaintiff documents responsive to the first subpoena to T-Mobile, though Plaintiff contends that such production was incomplete. To the extent the conversion claim accrued on that date, Plaintiff had five years, or until February 4, 2014, to bring his cause of action against Ms. Gort. Plaintiff, in his opposition, provides no other possible accrual date as to Ms. Gort. While the Complaint alleges that Ms. Gort failed to return Plaintiff's phone call on May 5, 2009, such allegation does not give rise to a conversion claim and, regardless, would still fall outside the scope of the statute of limitations. Consequently, the court finds that Plaintiff's claim against Ms. Gort is time-barred.

Similarly, the Complaint alleges that Mr. Davis was relieved as counsel of record for Plaintiff on August Calendar No.: Event ID:  TENTATIVE RULINGS

3072865 CASE NUMBER: CASE TITLE:  WHITE VS ORANGE COUNTY SUPERIOR COURT [IMAGED]  30-2023-01350198-CU-NP-CXC 14, 2009. The trial court in the First Conversion Action found that Mr. Davis boxed up the contents of Plaintiff's criminal case file and made those documents available for Mr. McBride. Mr. McBride took possession of all documents shortly after his appointment. Based on the foregoing, the last date on which Mr. Davis could have converted Plaintiff's property was in August 2009 when he still had possession of the documents (though it appears, based on the matters to which the court may take judicial notice, that Mr. Davis turned over all documents in his possession to Mr. McBride and thus did not convert any of Plaintiff's property in the first place). On that basis, the statute of limitations expired in August 2014. Consequently, the court finds that Plaintiff's claim against Mr. Davis is time-barred.

Finally, the Complaint alleges that the OCDA took possession of the T-Mobile cell phone records in March 2009. According to the Complaint, Plaintiff, at the latest, knew that he did not have possession of all records on May 5, 2009 when he reached out to Ms. Gort regarding further records from T-Mobile. On that basis, the statute of limitations expired in May 2014. Consequently, the court finds that Plaintiff's claim against the OCDA is time-barred.

To the extent Plaintiff contends that he did not discover all the elements giving rise to his conversion claim until much later, such argument is not well taken because, according to the Complaint, Plaintiff received the entirety of his criminal case file from Mr. Molfetta in August 2016. Therefore, even considering a delayed accrual of Plaintiff's conversion claim, Plaintiff needed to file the present action by no later than August 2021. He did not do so until September 20, 2023. To the extent Plaintiff argues that the statute of limitations began running on September 9, 2021 when the OCSC issued its order denying Plaintiff's writ of habeas corpus, such assertion is unavailing. The OCSC simply determined that it was possible that sufficient investigation was conducted by the OCDA and that no further investigation and/or interviews were needed. Contrary to Plaintiff's position, this finding does not form the basis for a conversion cause of action.

Accordingly, the court sustains the demurrer to the first cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

Conclusion In light of the foregoing, the court sustains the demurrer without leave to amend. Defendants shall submit a proposed judgment consistent with this ruling within fifteen (15) days of this hearing.

This is the tentative ruling for the hearing at 8:30 a.m. on Friday, April 5, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 5, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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