Judge: Daniel S. Murphy, Case: 24STCV23423, Date: 2025-03-03 Tentative Ruling

Case Number: 24STCV23423    Hearing Date: March 3, 2025    Dept: 32

BACKGROUND

            On September 11, 2024, Plaintiff Jennifer Lancona (Lancona) filed this action against Defendants Jason Rubin, Special Administrator of the Estate of Andrew Friedman (Rubin); and the Estate of Andrew Friedman (the Estate). The complaint alleges that Plaintiff worked at Andrew Friedman (Decedent)’s law firm but was not properly compensated or provided adequate meal and rest breaks.

            On October 31, 2024, Rubin, as Special Administrator of the Estate, filed a cross-complaint against Lancona, alleging conversion and conspiracy to convert. The cross-complaint alleges that Lancona stole promissory notes, cash, and personal property from Decedent’s safe. Lancona and the Roe cross-defendants allegedly intercepted payments on the promissory notes and diverted them to Decedent’s son, Barry Friedman, depriving the Estate.

            On January 3, 2025, Lancona filed the instant demurrer and motion to strike against the cross-complaint. Rubin filed his opposition on February 18, 2025. Lacona filed her reply on February 24, 2025.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Lancona has complied with the meet and confer requirement. (See Khachikyan Decl.)

DISCUSSION

I. Demurrer

            a. Conversion

            The elements of conversion are: (1) the plaintiff’s ownership or right to possession of the personal property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.) “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

            Lancona argues that the conversion claim fails because the cross-complaint alleges the theft of cash without identifying a sum. (See Cross-Compl. ¶ 12.) However, the requirement is that the money be identifiable. The cash from the safe is in a specific, identifiable sum even if the cross-complaint does not immediately state the amount. Thus, the alleged cash is a proper subject of conversion. Additionally, the cross-complaint alleges theft of promissory notes and personal property such as jewelry. (Ibid.) Those items are the proper subject of conversion apart from any cash. A demurrer must be overruled if there is any legal basis for the claim. Lancona cannot partially demur to the conversion claim only as to the cash.  

            The demurrer is OVERRULED as to the first cause of action.

            b. Conspiracy to Convert

                        1. Agent Immunity

            “Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512.)

            Relying on Applied Equipment, Lancona argues that she cannot be liable for conspiracy because all of her alleged acts were performed in her capacity as the agent or employee of Decedent’s law office. However, while Applied Equipment held that an employee cannot conspire with her own employer, Lancona allegedly conspired with others against her employer. There is no immunity for the latter scenario. Moreover, there is no indication that stealing the contents of the safe and diverting payments away from the Estate were official acts on behalf of Decedent’s law office. Lancona simply asks the Court to infer that she was acting on behalf of Decedent’s law firm, when no such inference can be made at the pleading stage, and no such admission is revealed by the allegations or attached exhibits. Instead, all reasonable inferences must be drawn in favor of the cross-complaint.

            In reply, Lancona changes her position to arguing that she was acting as an agent of executor Barry Friedman. (See Dem. 6:1-2 [“Plaintiff is an employee and/or agent of Friedman Law Offices”]; Reply 2:16-18 [“Cross-Defendant acted as an agent of Decedent’s named executor Barry Friedman”].) The Court does not consider points raised for the first time in reply. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.) Moreover, there is no admission on the face of the cross-complaint that Barry Friedman is the executor of Decedent’s estate, nor any admission that Lancona was employed by Barry Friedman. Lancona’s argument relies on extrinsic facts not pertinent to a demurrer.

            In sum, the pleadings do not establish as a matter of law that Lancona is immune from conspiracy.

                        2. Underlying Tort

            “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, supra, 7 Cal.4th at pp. 510-11.) “Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Id. at p. 511.)

            Lancona argues that she cannot be liable for conspiracy because the cross-complaint does not allege the underlying tort or name the immediate tortfeasors, such as Barry Friedman. However, the requirement is for an underlying tort to be committed; there is no requirement for the tort to be asserted as a cause of action or for the immediate tortfeasors to be named as defendants. The cross-complaint sufficiently alleges the commission of an underlying tort (the conversion of payments) and Lancona’s participation in it.

            In sum, the cross-complaint adequately alleges the commission of an underlying tort to support the conspiracy claim.    

                        3. Indispensable Parties

            A party is indispensable if “(1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (Code Civ. Proc., § 389(a).)

            Lancona argues that the cross-complaint fails to join the alleged co-conspirator, Barry Friedman. However, a co-conspirator is not an indispensable party merely by virtue of being a co-conspirator. “One conspirator may be sued as one of several tort feasors and the failure to join the coconspirators is not fatal to the action.” (Sayadoff v. Warda (1954) 125 Cal.App.2d 626, 629.) “[T]he major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291.) Thus, full relief can be obtained against Lancona alone without the inclusion Barry Friedman. Lancona provides no support for her contention that Barry Friedman’s interests would be affected by the action.

            In sum, the cross-complaint does not fail for failure to join indispensable parties.

                        4. Uncertainty

            A demurrer for uncertainty is disfavored and is only granted “if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) A complaint does not need to be a “model of clarity” to survive a demurrer because most ambiguities can be clarified through discovery. (Ibid.)

            The cross-complaint contains sufficient facts establishing a conspiracy between Lancona and Friedman to divert payments away from the Estate to Friedman. Lancona assisted this scheme by allegedly stealing the promissory notes from Decedent’s safe and exploiting her access to Decedent’s computer and email account. (See, e.g., Cross-Compl. ¶¶ 10, 12, 24.) This sufficiently establishes “the nature of [the] agreement” to conspire for pleading purposes. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1173.) The Court may “reasonably infer from the facts alleged that [Lancona and Friedman] agreed to” divert payments away from the Estate. (Ibid.) The cross-complaint need not plead a specific written or verbal agreement executed by the co-conspirators.

            Therefore, the cross-complaint is sufficiently clear to survive a demurrer for uncertainty.

II. Motion to Strike

            Lancona moves to strike the cross-complaint’s reference to her as Decedent’s mistress, and the allegation that she designated herself as an independent contractor to avoid paying taxes. (See Cross-Compl. ¶ 9.) However, the allegations are relevant background information pertaining to Lancona’s motive and opportunity to commit the alleged acts. The allegation about Lancona’s employment designation is additionally relevant to Lancona’s own claims for unpaid wages.

            Therefore, the motion to strike is denied.

CONCLUSION

            Plaintiff/Cross-Defendant Jennifer Lancona’s demurrer is OVERRULED. The motion to strike is DENIED.