Judge Daniel M. Crowley, Case Number: 21STCV03788, Date: 2023-06-29 Tentative Ruling

Defendant Benson Williams II’s motion for summary judgment of pro per Plaintiff Wesley Robbins’ second amended complaint is granted.

Defendant Benson Williams II (“Williams”) (“Defendant”) moves for summary judgment of pro per Plaintiff Wesley Robbins’ (“Wesley”) (“Plaintiff”) 6th, 7th, and 15th causes of action in his second amended complaint. (Notice Motion, pg. 2.) Defendant moves in the alternative for summary adjudication of Plaintiff’s 6th [Issue 1], 7th [Issue 2], and 15th [Issue 3] causes of action, and Plaintiff’s claim of punitive damages [Issue 4]. (Notice Motion, pg. 2; C.C.P. §437c.)

Defendant’s 4/4/24 evidentiary objections to the Declaration of Cornelius Robbins (“Cornelius”) is sustained as to Nos. 1-34, 36-43, 49-53, 56, 58, 62-70, and overruled as to Nos. 35, 44-48, 54-55, 57, 59-61.

Defendant’s 4/4/24 evidentiary objections to the Declaration of Wesley Robbins (“Wesley”) is sustained as to Nos. 5 (as to Exhs. A and C only), 6 (Exh. E only), 9 (Exh. F only), 20 (Exh. C only), 22 (Exh. F only), 22 (Exh. E only), 23 (Exh. I only), 24 (only as to “I was told to call dispatch the next morning”), 26 (only as to “Yoshida asked me to open Unit C94”), 27 (only as to “Yoshida asked me some questions – such as ‘Where’s the third key?’” . . . “She also asked me what my losses were” . . . “She asked if I had any insurance” . . . “She asked if the stuff had identifiable markings” . . . “She asked about who I thought might have done the deed” . . . “She asked me to close the door”), 28 (only as to “Yoshida asked to use my phone to call my wife and son” . . . “she said, that I had lied to her about the insurance”), 29 (Exh. J only), 30 (Exh. L only), 32 (only as to “Chauncey White, Westport Properties, Inc.’s IT guy – who told me they had never gotten any correspondence from me”), 34 (Exh. N only), 39 (only as to “he said it was unpickable – the pieces inside are too small; the lock was opened by use of a key.”), 45 (only as to “DBW told me that he didn’t have any – the information was ‘at headquarters’”), 46 (only as to “We had a phone conversation about my written requests and she informed me that she couldn’t help because the information that I had requested was ‘proprietary’.”), 47 (only as to “USSC-SB staff member Ana Garcia indicated that she did not know how to use the Falcon security system – that only DBW knew how. Previously, she had said ‘You store here at your own risk.’”), 51 (only as to “a polite woman told me that the case had been closed for lack of workable evidence”), 52 (only as to “The caller claimed to be an HPD Officer, said the case was closed, claimed that I could be linked to a magazine sent to the HPD and Detective Bristow–and never contact Bristow again. He demanded that I understand what he said”), 53, 56-58, 64 (Exhs. J, R, T, U only), 66 (Exh. J only), 67 (Exh. R only), 68 (Exh. R only), 69 (Exh. T only), 70 (only as to “There is no mention within that she and I discussed any conspiracies” and Exh. J), 72 (only as to “There is no mention within that she and I discussed any conspiracies” and Exh. R), 76 (Exh. N only), 77-79, 83 (Exh. U only), 87 (Exhs. J and R only), 88 (only as to “The correspondence includes the PTI security report showing Unit C94 and C92 door activity between August 5, 2018 and Spring 2020” and Exh. T), 89, 93 (only as to “We chatted about the death of a couple of stamp dealers and looked across at the booth of Carl Shaff – whom Pattillo said that he liked to get the better of”), 95 (only as to “he spoke about how he drove up to the show with his father, etc.”), 97 (Exh. Y only), 99, 100 (Exh. U only), 107-122, 124, 126-127, 130-131, 133, 135, 138-139, 141-142, 146 (Exh. KK only), 149-153, 156, and 158; and overruled as to Nos. 1-4, 7-8, 10-19, 25, 31, 33, 35-38, 40-44, 48-50, 54-55, 59-63, 65, 71, 73-74, 80-81, 82, 84-86, 90-92, 94, 96, 98, 101-106, 123, 125, 128-129, 132, 134, 136-137, 140, 143-145, 147-148, 154 (but the contents are not used for the truth of the matters admitted), 155, and 157.

CRC, Rule 3.1350(d)(3) provides that citations to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. (CRC, Rule 3.1350(d)(3); see CRC, Rule 3.1350(h).) Failure to comply with the requirements for filing a separate statement may in the trial judge’s discretion constitute a sufficient ground for denial of the motion. (C.C.P. §437c(b)(1).)

Plaintiff argues Defendant’s motion should be denied for its violation of CRC, Rule 3.1350(d)(3) in Separate Statement Nos. 1-29. Defendant’s separate statement substantially complies with CRC, Rule 3.1350(d)(3); Defendant’s separate statement is not so defective as to render it incomprehensible or unworkable. Therefore, the Court will consider the instant motion.

Plaintiff filed his initial Complaint on January 29, 2021. Plaintiff filed his first amended complaint (“FAC”) on January 14, 2022. Plaintiff filed the operative SAC on November 14, 2022, alleging thirteen causes of action: (1) civil conspiracy, (2) fraud (I), (3) tortious interference (I), (4) defamation, (5) invasion of privacy, (6) trespass, (7) conversion, (8) tortious interference (II), (9) fraud (II), (10) gross negligence, (11) appropriation, (12) intentional infliction of emotional distress (“IIED”), and (15) receipt of stolen property.[1]

On March 23, 2023, the Court sustained Defendant’s demurrer to the 8th, 9th, 10th, 11th, and 12th causes of action alleged against Defendant without leave to amend, sustained Defendant’s demurrer to the 6th and 7th causes of action as to Plaintiff’s allegation that Defendant acted in his official capacity, taking judicial notice of Defendant acting in his individual capacity as plead in the original Complaint, and overruled Defendant’s demurrer to the 15th cause of action. (3/23/23 Ruling on Submitted Matter, pg. 1.)

Defendant filed the instant motion on January 23, 2024. Plaintiff filed his opposition on March 26, 2024. Defendant filed his reply on April 4, 2024.

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (C.C.P. §437c(c).)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (C.C.P. §437c(f)(2).) A party may move for summary adjudication as to one or more causes of action within an action if that party contends that the cause of action has no merit or to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Civil Code §3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (C.C.P. §437c(f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (C.C.P. §437c(f)(1).)

“‘Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000.)” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262.)

Plaintiff’s original Complaint alleges Defendant participated in the trespass against Plaintiff as “an employee of [US Storage Centers,] Westport [Properties, Inc.,] and [Hawthorne] Mini [Ventures, LLC,] and acted outside his official capacity as general manager of the property in this regard.” (Complaint ¶325, emphasis added.) Plaintiff alleges in the SAC that Defendant, had a key to Plaintiff’s lock for Unit C94, opened the lock and determined that Unit C94 was in use and was full of Plaintiff’s Inventory items. (SAC ¶374.) Plaintiff alleges Defendant notified the Owner and management that Unit C94 was full of boxes and that an auction was needed to dispose of the property in Unit C94. (SAC ¶374.) Plaintiff alleges that despite knowing that Plaintiff owned the property within Unit C94, Defendant did not notify Owner and management that Plaintiff was using Unit C94, nor of the size and nature of the contents within Unit C94. (SAC ¶374.) Plaintiff alleges Defendant did not notify Plaintiff that contents of Unit C94 were to be removed. (SAC ¶374.)

Defendant argues Plaintiff cannot demonstrate Defendant committed a burglary of Unit C94, conspired with any other person or allowed any other person to commit a burglary of Unit C94, or retained a key to Unit C94. (Motion Memo, pg. 9.)

Defendant submitted Defendant’s declaration stating he did not open Unit C94 or any storage unit leased to Plaintiff at the storage unit facility at the subject property to commit any criminal act or acts against Plaintiff. (Defendant’s Dispute Separate Statement of Fact [“D-DSSF”] 9; Defendant’s Compendium of Evidence [“D-COE”] Decl. of Williams ¶7.) Defendant submitted evidence he did not enter Unit C94 or any storage unit leased to Plaintiff at the storage unit facility at the subject property to commit any criminal act or acts against Plaintiff or cause or allow any another person to commit any criminal act or acts against Plaintiff. (D-DSSF 10, 12; D-COE Decl. of Williams ¶¶8, 10.) Accordingly, Defendant met his burden to demonstrate there is no merit to Plaintiff’s cause of action, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff failed to meet his burden to raise a triable issue of material fact as to whether Defendant trespassed on Plaintiff’s C94 storage unit. Plaintiff submitted evidence of his own declaration that he purchased a lock and key from Defendant and that from November 12, 2015 through August 5, 2018, he has not copied, given, misplaced, lost, or loaned his two keys to the lock he placed into the door of Unit C94, he never removed any keys from their original ring that Defendant gave to him, and he never had any other keys to the lock that he put into the door of Unit C94. (Plaintiff’s Disputed Separate Statement of Fact [“P-DSSF” 9; Plaintiff’s Compendium of Evidence [“P-COE”] Decl. of Wesley ¶41.) Such evidence does not raise a triable issue of material fact. Defendant only bears the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, emphasis added.) Where a plaintiff is required to prove a matter at trial by a preponderance of the evidence, the plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (See id., at pg. 857 n.27 [“‘[W]hen the evidence is in equipoise on a matter that [plaintiff] must establish by a preponderance of the evidence, summary judgment will be granted against [plaintiff]’ because a reasonable trier of fact could not find for the plaintiff.”].)

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff’s ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)

Plaintiff alleges Defendant had a key to the Chinrose lock that Defendant sold to Plaintiff and which Plaintiff put onto the door of Unit C94 in 2015. (SAC ¶401.) Plaintiff alleges Defendant deactivated the alarm to Unit C94, prior to lifting the door to Unit C94. (SAC ¶402.) Plaintiff alleges Defendant activated the alarm to Unit C94, after lowering the door to Unit C94. (SAC ¶403.) Plaintiff alleges Defendant knowingly trespassed into Unit C94, invaded the privacy of Plaintiff’s domain and Inventory property and ascertained the contents of Unit C94: stamps, stamp albums and stamp collections. (SAC ¶404.) Plaintiff alleges Defendant took possession and control of the contents of Unit C94 and abrogated rights of Plaintiff. (SAC ¶405.) Plaintiff alleges Defendant contacted storage auction consultants, pawnshops, appraisers, stamp collecting clubs, stamp businesses and stamp dealers in Southern California and invited Non-moving Defendants Pattillo and Does to the facility and struck a deal with Pattillo. (SAC ¶409.)

Defendant declares he did not commit a burglary of Unit C94, he did not conspire with any other person or allow any other person to commit a burglary of Unit C94, and he did not retain a key to Unit C94. (Motion Memo, pg. 10.) Defendant declares he did not interfere in any manner with the contents of Unit C94 or of any other storage unit leased by Plaintiff at the storage unit facility at the Subject Property, which he claims were taken during the Subject Incident, by knowingly or intentionally taking possession of any contents of Unit C94 or any other storage unit leased by Plaintiff at the facility or by knowingly or intentionally preventing Plaintiff from having said access to contents of Unit C94 or any other storage unit leased by Plaintiff at the facility. (D-DSSF 18, 19; D-COE Decl. of Williams ¶¶16-17.) Defendant submitted evidence that he did not interfere with, take possession, or take control of any of the contents of Unit C94 or of any other storage unit leased by Plaintiff at the storage unit facility at the Subject Property to commit any criminal act or acts against Plaintiff. (D-DSSF 21, 22, 23; D-COE Decl. of Williams ¶¶19-21.)

Defendant also submitted evidence that he did not buy, receive, sell, aid in selling, conceal or withhold from Plaintiff any contents of Unit C94 or of any other storage unit leased by Plaintiff at the storage unit facility at the Subject Property. (D-DSSF 24; D-COE Decl. of Williams ¶22.) Defendant submitted evidence that he did not obtain any contents of Unit C94 or of any other storage unit leased by Plaintiff at the storage unit facility at the Subject Property. (D-DSSF 25; D-COE Decl. of Williams ¶23.) Accordingly, Defendant met his burden to demonstrate there is no merit to Plaintiff’s cause of action, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff failed to meet his burden to raise a triable issue of material fact. Plaintiff failed to submit admissible evidence demonstrating Defendant acted intentionally to wrongfully dispose of Plaintiff’s property in Unit C94. Plaintiff’s proffered evidence that Defendant failed to communicate to Plaintiff the breach of Unit C94 and the alarm notice that should have been generated by the breach is not sufficient to meet this burden. (See P-DSSF 24; P-COE Decl. of Wesley ¶32, 57, 60.) Where a plaintiff is required to prove a matter at trial by a preponderance of the evidence, the plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (See Aguilar, 25 Cal.4^th at pg. 857 n.27.)

Plaintiff has not offered any evidence contradicting Defendant’s proffered facts. Therefore, Plaintiff did not meet his burden to raise a triable issue of material fact. Accordingly, Defendant’s motion for summary judgment of the 7th cause of action is granted.

Penal Code §496 provides that “any person who has been 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.” (Pen. Code §496(c).)

“While [Penal Code §496(a)] covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property.” (Switzer v. Wood (2019) 35 Cal.App.5th 116, 126, as modified (May 10, 2019), quoting Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [stating elements of Penal Code §496 offense].)

“A violation of section 496(a) may, by its own terms, relate to property that has been “stolen” or “that has been obtained in any manner constituting theft or extortion.” (Id., quoting Pen. Code §496(a).)

Plaintiff alleges the transfer of his Inventory by Defendant from Unit C94 to Non-moving Defendant Pattillo was, as well as being conversion and a sophisticated fraud scheme long known as ‘diddling,’ the receipt of stolen property by Defendant, and sale of stolen property by Defendant to Non-moving Defendants Pattillo, Quality Stamp Shows, and Orcoexpo, who also received stolen property. (SAC ¶662.)

Defendant declares he did not commit a burglary of Unit C94, he did not conspire with any other person or allow any other person to commit a burglary of Unit C94, and he did not retain a key to Unit C94. (Motion Memo, pg. 12.). Defendant also argues he is not a swamp meet vendor as defined in Section 21661 of the Business and Professions Code. (Motion Memo, pg. 12.)

Defendant submitted evidence of his own declaration that he did not act with intent to cause Plaintiff injury at any time, including in connection with the alleged burglary concerning the alleged Subject Incident, and he has not done anything to injure Plaintiff. (D-DSSF 26; D-COE Decl. of Williams ¶24.) Defendant submitted evidence of his own declaration that he did not conspire or agree to conspire with any of the Co-Defendants allegedly involved in the Subject Incident to commit any criminal act or acts against Plaintiff. (D-DSSF 20; D-COE Decl. of Williams ¶18.) Accordingly, Defendant met his burden to demonstrate there is no merit to Plaintiff’s cause of action, shifting the burden to Plaintiff to raise a triable issue of material fact.

Plaintiff failed to meet his burden to raise a triable issue of material fact. Plaintiff’s proffered evidence that Defendant fabricated a September 6, 2018, in-house incident report is not admissible because such evidence is not provided as a properly authenticated exhibit in Plaintiff’s compendium of evidence, constitutes hearsay testimony with the record of a public employee (here, a police report), and Defendant’s objection to such evidence has been sustained. (See P-DSSF 20; P-COE Decl. of Wesley ¶69.) Where a plaintiff is required to prove a matter at trial by a preponderance of the evidence, the plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (See Aguilar, 25 Cal.4th at pg. 857 n.27.)

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Demurrers to Plaintiff’s 13th (Burglary) and 14th (Grand Theft) causes of action were previously sustained without leave to amend. (10/12/22 Minute Order, pg. 3.)