Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

Plaintiff Bradley Fischer, a former officer and employee of Defendant New Republic Pictures, LLC, alleges Defendant failed to pay him compensation due under a 2019 employment agreement.  Plaintiff’s original complaint asserted three causes of action for breach of contract, declaratory relief and accounting.  Plaintiff recently amended his complaint to add a second cause of action for conversion and a third cause of action for failure to pay all wages and bonuses in violation of the Labor Code.  (Second Amended Complaint (“SAC”) ¶¶ 48-65.)  As part of his third cause of action, Plaintiff seeks a “25% penalty pursuant to Labor Code §§ 216, 225.5(b).”  (Id. ¶ 64, line 6.)   

This hearing is on Defendant’s demurrer to and motion to strike the second amended complaint.  Defendant argues that Plaintiff’s conversion claim fails because a mere contractual right of payment does not accord Plaintiff the requisite “ownership” interest in those monies that is needed to assert conversion.  Defendant also moves to strike portions of the SAC that refer to the 25% penalty.  Defendant argues that the Complaint fails to allege that Plaintiff complied with pre-filing requirements under the Labor Code Private Attorneys General Act for seeking the penalty, including filing notice with the Labor and Workforce Development Agency and allowing the agency an opportunity to investigate.  Plaintiff filed a statement of non-opposition to the motion to strike. 

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc. § 436, subd. (a).)  The court may also strike 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. (Code Civ. Proc. § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

MEET AND CONFER 

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  Defendant submits the Declaration of Gregory P. Korn, which attests the parties met and conferred by telephone on July 1, 2024, more than five days before Defendant filed its demurrer and motion to strike on July 8 and July 10, 2024.  This satisfies the meet and confer requirements of §§430.41 and 435.5.   

DISCUSSION 

Demurrer 

Plaintiff argues the demurrer is untimely.  The SAC was filed and served by email on June 3, 2024.  (Ex. A to Schwartz Decl.)  As a result, Defendant’s deadline to respond was July 8, 2024, which was thirty days after service of the SAC plus two court days for electronic service.  (See Code Civ. Proc. §§ 471.5(a), 1010.6(a)(3)(B).)  Defendant filed its demurrer on July 10, 2024, two days after the applicable deadline.  However, while the demurrer is untimely, the Court will consider it on the merits as Plaintiff’s counsel was served with the demurrer on July 8, and courtesy copies were delivered to the Court on July 8.  Moreover, the demurrer was filed more than two months before the hearing date, so there is no prejudice to Plaintiff resulting from the untimely filing.   

The Court turns now to the merits of the demurrer.  Defendant argues that Plaintiff is seeking to recover monies due under a contract, and a mere contractual right of payment without more will not suffice to support a claim for conversion.  The Court agrees. 

To establish a claim for conversion, plaintiff must¿plead and prove “either ownership or the right of possession or actual possession of the property at the time of the alleged conversion thereof.” ¿(Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 232-233.)  A mere contractual right to payment, without more, is insufficient to establish a plaintiff’s “ownership” or “possession” of money, and therefore cannot serve as the basis for a conversion claim.¿ (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 452.)   

Here, Plaintiff claims that his 2019 Agreement provides him an interest in New Republic’s revenues from the Paramount Slate Pictures.  (SAC ¶49.)  This is a mere contractual right of payment which under Farmers and Rutherford is insufficient to support a conversion claim.  

Plaintiff relies on¿SP Investment Fund I v. Catell (2017) 18 Cal.5th 898, in which the Court of Appeal held plaintiff stated a cause of action for conversion when defendant held money in trust for plaintiff under a written agreement and refused to turn over distributions to plaintiff.¿ (Id. at 907.)  In SP Investment, plaintiff had a partnership interest, in addition to a contractual right, entitling it to payment.  Because plaintiff had more than a mere contractual right, it could proceed with a claim for conversion.  Here, Fischer does not have a partnership interest.  He only has a contractual right of payment, “without more.”  (Farmers, 53 Cal.App.4th at 452.)   

Plaintiff also relies on Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, which is distinguishable on the same basis as SP Investment.  In Sanowicz, the parties had “form[ed] a ‘joint venture’ in which they jointly would work on real estate transactions.” (Id. at 1031 (emphasis added).)  The allegation in that case was that the defendant sold property subject to the parties’ joint venture agreement and then hid the sale from the plaintiff to avoid application of the agreement’s profit-sharing obligations.  (Id. at 1032.)  As with SP Investment, the plaintiff in Sanowicz had alleged more than a contractual right of payment, as a joint venture, like a partnership, entitles the joint venture members to an ownership interest in the enterprise and a right to share the profits of the undertaking. 

Plaintiff’s reliance on Weiss v. Marcus (1975) 51 Cal.App.3d 590 is similarly misplaced. Weiss was decided decades before Farmers and Rutherford, and the facts there are distinguishable.  In Weiss, the plaintiff was a lawyer who alleged he had an interest in the attorneys’ fees he was seeking to recover “by virtue of his lien for attorneys’ fees” that had “attached to the proceeds of the settlement” in the matter at issue.  (Id. at 596.).  Weiss had more than a contractual right of payment; he had a lien.  Plaintiff does not allege he has a lien on a share of New Republic’s revenues, so Weiss is inapposite. 

In sum, unlike the cases he cites, here, Plaintiff does not and cannot allege that he is a partner at New Republic with a legal right to a share of profits (as in SP Investment), that he was in a joint venture with New Republic (as in Sanowicz), or that he had a lien on any share of New Republic’s revenues (as in Weiss).  There is no dispute that without the 2019 Agreement, Plaintiff would have no conceivable right to a share of the revenues New Republic received from producing films.  Accordingly, he has only alleged a contractual right of payment, without more, which under Farmers and Rutherford is insufficient to support a conversion claim.   

Therefore, the Court sustains the demurrer to Plaintiff’s second cause of action for conversion. 

Motion to Strike 

Defendant’s motion to strike the references in the Complaint to a 25% penalty is unopposed.  Accordingly, the Court grants the motion.   

 

CONCLUSION 

Based on the foregoing, the Court SUSTAINS Defendant New Republic Pictures, LLC’s demurrer without leave to amend and GRANTS its motion to strike without leave to amend.   

IT IS SO ORDERED. 

 

DATED: September 12, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court