Judge: Douglas W. Stern, Case: 21STCV46048, Date: 2022-10-05 Tentative Ruling

Case Number: 21STCV46048    Hearing Date: October 5, 2022    Dept: 52

Tentative Ruling:

Defendants Laura Martz and Paul Dizon’s Demurrer and Motion to Strike

Demurrer

            Defendants Laura Martz and Paul Dizon demur to all five causes of action alleged in plaintiff Nathaniel Bendo’s complaint.

Summary of Allegations

Plaintiff alleges he was “a regular Saturday caregiver” at the Emerald Isle assisted living facility.  (Comp., ¶ 10.)  Defendant Laura Martz is Emerald Isle’s “founder and director.”  (Ibid.)  Defendant Paul Dizon is “the administrator” of the facility and supervised plaintiff.  (¶ 8.)

Plaintiff kept personal property, his “handyman and mechanic’s tools,” at the facility.  (Comp., ¶ 27.)  Defendants terminated his employment on September 4, 2021.  (¶ 11.)  That day, he tried to arrange to pick up his tools.  (¶ 11.)  Defendants Martz and Dizon, however, “denied him access to the garage of said facility to gain possession of his tools.”  (¶ 26.)  Plaintiff alleges the tools are “valued at over $20,000.00.”  (Ibid.)

1. Fraud & 2. Negligent Misrepresentation

            Plaintiff fails to allege sufficient facts for his first or second causes of action.  Fraud requires: (1) a misrepresentation of fact; (2) knowledge of falsity; (3) an intent to defraud; (4) justifiable reliance; and (5) damages.  (Ryder v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1079.)  Negligent misrepresentation requires “ ‘(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.’ ”  (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.) 

            Plaintiff does not allege any misrepresentation of fact by defendants Laura Martz or Paul Dizon.  He also does not allege he did anything in reliance on any misrepresentation.  The gravamen of plaintiff’s complaint is that he left his tools behind at the Emerald Isle assisted living facility, and defendants refused to let him pick them up or give them back.  These allegations are not connected to any false representation of fact. 

3. Negligence

Plaintiff alleges sufficient facts for negligence.  Negligence requires “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.”  (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)  “The general rule in California is that ‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person....’ ”  (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.)  “[I]n the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ ”  (Ibid.)

First, plaintiff alleges “defendants had a duty of care to safe guard the plaintiff’s personal property and instruments.”  (Comp., ¶ 23.)  Second, he alleges they breached that duty by refusing to give his tools back.  Finally, that breach caused damages by depriving him of his valuable property.

4. Conversion

            Plaintiff alleges sufficient facts for conversion.  “The basic elements of [conversion] are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages.”  (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

            First, plaintiff alleges he owned “handyman and mechanic’s tools.”  (Comp., ¶ 27.)  Second, he alleges defendants possessed the tools and refused to let him take them back.  (¶ 26.)  Finally, depriving him of his tools “valued at over $20,000.00” (ibid.) caused him damages.           

5. Intentional Infliction of Emotional Distress

Plaintiff fails to allege sufficient facts for this cause of action.  Its elements are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  

            Plaintiff fails to allege sufficient facts for the first element.  “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)  This “tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities’.”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) 

Plaintiff alleges defendants refuse to give him back his personal property.  Doing so is wrong and illegal but not outrageous conduct beyond the bounds of human decency. 

Motion to Strike

            Defendants move to strike portions of the complaint regarding punitive damages and its prayer for attorney fees.  Courts may strike a “demand for judgment requesting relief not supported by the allegations of the complaint.”  (CCP § 431.10(b)(3).)

A. Punitive Damages

Plaintiff’s allegations support recovery of punitive damages.  Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)  “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294(c)(1).)

Plaintiff alleges facts showing he has the right to possess his tools.  He tried to arrange to pick them up, but defendants refused.  He therefore alleges they willfully and consciously disregarded his rights to his personal property.

B. Attorney Fees

            A plaintiff can only recover attorney fees when authorized by contract, statute, or law.  (CCP § 1033.5(a)(10).)  Plaintiff alleges no such basis for recovering attorney fees.  He alleges only common-law torts, which do not allow recovery of attorney fees.

Disposition

            Defendants Laura Martz and Paul Dizon’s demurrer to the first, second, and fifth causes of action is sustained with 20 days’ leave to amend.  Defendants’ demurrer to the third and fourth causes of action is overruled.       

            Defendants’ motion to strike is denied in part as to punitive damages and granted in part as to the prayer for attorney fees.  The court hereby strikes the following portion of the complaint: “attorney’s fee and,” in prayer paragraph 3, at page 12, line 14.