Judge: Elaine W. Mandel, Case: 23SMCV04006, Date: 2025-01-07 Tentative Ruling

Case Number: 23SMCV04006    Hearing Date: January 7, 2025    Dept: P

Tentative Ruling

Green v. Green, Case no. 23SMCV04006

Hearing date January 7, 2025

Defendant Matthew Green’s Demurrer to the FAC

Plaintiff Paula R. Green sues defendants Matthew Green, Robert Green, Alan Gutman, Gutman Law, Warriner, Green & Riley LLP, Rhett Warriner, Michael Riley, Joe Catriel and Brucar Locksmith for trespass, conversion and fraud arising from defendants’ actions in removing plaintiff from property owned by the Green parties’ parents. Defendant Matthew Green, in pro per, demurs and requests judicial notice.

Defendant Matthew Green’s RJN

Defendant Matthew Green requests judicial notice of 15 documents, orders and filings of the court relating to case numbers 16STPB01322, 19STCV4538, 225TCY28277 and the instant matter. Judicial notice of documents of this court or of any court of this state or country is proper per Cal. Evid. Code §§ 452-453. GRANTED.

Defendant Matthew Green’s Demurrer to the FAC

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Defendant demurs to the first and second causes of action for trespass and conversion on the grounds plaintiff fails to state sufficient facts. Defendant argues the court, in a separate matter, ruled plaintiff was unlawfully in possession of the property owned by the parties’ parents. Defendant argues plaintiff’s claims arise from defendant’s actions when effectuating a lockout of plaintiff from the property. Defendant argues his actions were permitted by court order, so cannot constitute the basis for claims against him.

Whether defendant was acting within his rights is a question of fact not appropriate upon demurrer; the only relevant consideration on demurrer is whether plaintiff’s allegations, which must be accepted as true at the demurrer stage, constitute a cause of action.

Additionally, questions of fact remain as to whether the court’s lockout order against plaintiff empowered defendant to take personal action.

To establish a claim for trespass, plaintiff must allege occupation, intentional entry to the property, lack of permission, actual harm and that the intentional entry was a substantial factor in causing the harm. CACI 2000. Plaintiff alleges defendant, alongside defendant Catriel, hopped the fence to open the door to allow the police to enter the property. FAC paras. 17-18. Plaintiff alleges she was occupying the property at the time. FAC paras. 14, 25. Plaintiff alleged defendant acted without her permission. FAC paras. 17-18. Plaintiff alleged personal and material harm. FAC paras. 20, 24, 29, 32-33. Plaintiff sufficiently pled the elements of trespass.

To establish a claim for conversion, plaintiff must establish she owned personal property, defendant interfered with the property by taking possession of it, plaintiff did not consent to said possession, plaintiff was harmed, and defendant’s conduct was a substantial factor. CACI 2100. Plaintiff alleged she had multiple pieces of personal property at the residence. FAC para. 25. Plaintiff alleged defendant interfered with her property by taking possession of the residence without consent. FAC paras. 25, 30, 33. Plaintiff alleged defendant’s actions caused physical and financial harm. FAC paras. 1-37. Plaintiff sufficiently pled the elements of conversion.

Defendant’s arguments that the court previously already found plaintiff had no possessory interest in the property at issue are relevant, but are improper at the demurrer stage. Plaintiff alleged a possessory interest in the property; this is sufficient to sustain a claim upon demurrer. Whether that interest is tortious, as argued by defendant per Veiseh v. Srapp (2019) 35 Cal.App.5th 1099, 1106 is a question of fact the court cannot determine upon demurrer. OVERRULED. Defendant to answer within 10 court days.