Judge: Elaine W. Mandel, Case: 22SMCV00785, Date: 2023-07-11 Tentative Ruling

Case Number: 22SMCV00785    Hearing Date: February 21, 2024    Dept: P

Tentative Ruling

Catalan Don v. W.I. Simonson, Case No. 22SMCV00785

Hearing Date February 21, 2024

Defendants’ Motion for Judgment on the Pleadings

Plaintiff Catalan Don alleges a mechanic associated with defendants’ repair facility removed an accident-avoidance radar sensor unit and grill from his truck during a service visit, replacing the grill with another one to conceal the alleged theft. Defendants Sonic Santa Monica M, Inc. dba W.I. Simonson, Watkins, Bland and Vides move for judgment on the pleadings.

Validity of Motion

As a threshold matter, plaintiff argues the motion is void because it targets the complaint, which was superseded by the first amended complaint. The motion explicitly the “operative First Amended Complaint,” so targets the correct pleading. 

Conversion

The elements of a cause of action for conversion are (1) plaintiff’s ownership or right to possession of personal property, (2) defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights, and (3) damages. “Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4^th 97, 119.

Defendants argue this cause of action fails because it is based on an impossible set of allegations. According to defendants, the FAC alleges Don first became aware something was wrong with his vehicle’s grill at 9:30 or 10:00 pm on April 7, 2022 and called defendant Bland immediately. Bland called defendant Watkins, his boss, who watched a three-hour security video showing an unidentified mechanic removing the grill, with all parties becoming aware of the video’s contents by 11:15 pm. FAC ¶¶13-14.

Defendants state the FAC describes a sequence of events lasting, at most, an hour and forty-five minutes, from 9:30pm to 11:15pm, and it would have been impossible for Watkins to view a three-hour security video in this window, let alone watch it, then convey its contents to Bland, who conveyed them to Don.

Defendants identified a factual discrepancy in the complaint, which Don does not address in his opposition. Nevertheless, judgment on the pleadings is improper. Regardless of whether Don’s narrative of how he discovered the alleged theft is accurate, discovery of the misappropriation is not an element of conversion.

Don alleged an ownership interest in his vehicle and its parts, misappropriation of the vehicle’s accident-avoidance system by a Simonson employee and damages. FAC ¶¶22-24. The elements of conversion are adequately alleged, despite discrepancies in the background allegations. DENIED.

Fraud, Negligent Misrepresentation and Conspiracy to Commit Fraud

A plaintiff seeking to recover on a fraud theory must generally allege an actual monetary loss to establish damages. Alliance Mortgage Company v. Rothwell (1995) 10 Cal.4th 1226, 1240.

Defendants demur on the grounds that Don failed to allege cognizable damages. The court agrees. Don states because of defendants’ alleged misrepresentations, he decided not to report the theft to the Santa Monica Police Department. FAC ¶35. This is not an “actual monetary loss,” and any connection to such a loss is tenuous and hypothetical.

Don does not directly address this argument but recites the elements of fraud and asserts they are adequately alleged. This is insufficient to defeat judgment on the pleadings. GRANTED with ten days leave to amend.

Breach of Contract

The existence of a contract requires (1) parties capable of contracting, (2) consent, (3) a lawful object, and (4) consideration. Cal. Civ. Code §1550.

Defendants argue Don does not allege consideration. They demand a greater level of specificity than is required at the pleading stage. Don alleges an oral agreement with defendants, and that he performed his obligations under the agreement. FAC ¶¶52-53. He does not need to specifically allege the nature of his consideration. DENIED.

Violation of Cal. Bus. and Profs. Code §17200

Under Cal. Code of Civ. Proc. §17200, unfair competition is defined as “any unlawful, unfair, or fraudulent business act or practice[.]” Cal. Bus. & Prof. Code §17200.

Defendants demur on the grounds that the theft and misrepresentation alleged in the FAC cannot be called a “business practice[.]” This is conclusory. Theft and misrepresentation, depending on the evidence produced, might constitute a business practices.

This cause of action nevertheless fails for vagueness; it does not specify whether it is based on unlawful, unfair or fraudulent practices and which acts by which defendants give rise to liability. GRANTED without leave to amend.

Consumer Legal Remedies Act

A claim under Cal. Civ. Code §1770 proscribes certain “unfair or deceptive practices . . . undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services[.]”

Defendants argue Don has not alleged a transaction that results in the “sale or lease of goods or services[.]” Motion pg. 7. Don admits the sale of the vehicle took place prior to the alleged deceptive practices, so cannot serve as the basis of a §1770 claim. The FAC alleges the alleged theft and conversion occurred in connection with servicing and maintenance of the vehicle, a “service” within the meaning of the statute. DENIED.

Civil Theft

Defendants make the same argument against this cause of action as the conversion cause of action. The argument fails for the same reason. DENIED.