Judge: Erick L. Larsh, Case: 2022-01269652, Date: 2023-06-15 Tentative Ruling

The Demurrer brought by Defendants Erik Cutforth and Kerri Cutforth is sustained in part and overruled in part. The Demurrer is sustained without leave to amend, as to the First Cause of Action. The Demurrer is sustained, with 15-days leave to amend, as to the Fifth Cause of Action. The remainder of the Demurrer is overruled.

With respect to the First Cause of Action, Plaintiff asserts Defendants violated Civil Code section 841, subdivision (b)(2), by failing to provide the notice specified therein (¶25 of FAC); however, the cited provision appears to outline, at most, a defense to a request for contribution. Although not clearly specified by the language of the statute, the lack of sufficient notice would appear to constitute an “equitable factor” which the Court could consider in making a contribution determination. (Civ. Code, §841, subd. (b)(3)(E).)

Here, there has been no allegation Defendants are seeking contribution from Plaintiff, for the identified fence. Moreover, even assuming such an allegation, Plaintiff has not demonstrated that Civil Code section 841, subdivision (b)(2) creates a private right of action: “A private party can sue for violation of a statute only where the statute in question allows it.” (Mayron v. Google, LLC (2020) 54 Cal.App.5th 566, 571.) “We first examine the statutory text to see if it contains ‘clear, understandable, unmistakable terms,’ ‘which strongly and directly’ indicate a private right of action is allowed.” (Ibid.) “The statute may, for instance, refer to obtaining a remedy or enforcing its provisions ‘by way of an action.’” (Ibid.) “Where the text does not contain an unmistakable directive, the legislative history may indicate whether the Legislature intended to create a private cause of action.” (Ibid.)

Here, Civil Code section 841 gives no indication that a violation of subdivision (b)(2) is intended to create a private right of action and permit the recovery of damages.

Moreover, to the extent Plaintiff intends to request contribution from Defendants, pursuant to this provision, there are no allegations that Plaintiff incurred costs repairing a shared fence.

Notably, Plaintiff did not respond to the Demurrer to this claim and, therefore, appears to concede that a claim cannot be stated thereunder. (See Opposition, generally; See also Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20.) Consequently, the Demurrer to this claim is sustained, without leave to amend. The burden was on Plaintiff to show the manner in which he may amend, and how the amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Having opted against opposing this portion of the Demurrer, Plaintiff necessarily failed to demonstrate any ability to amend.

With respect to the Fourth Cause of Action for Conversion, the Demurrer is overruled.

“A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395). “The tort of conversion is derived from the common law action of trover. The gravamen of the tort is the defendant’s hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession.” (Ibid.)

Within this demurrer, Defendants assert Plaintiff “failed to allege sufficient facts of his exclusive ownership of the fence.” (Demurrer: 3:17-18.) Pointing to allegations which concede the fence was jointly owned, Defendants assert Plaintiff’s claim fails. (¶9 and ¶36 of the FAC.) Defendants do not, however, cite authority which supports this assertion. Indeed, the authority cited by Defendants within the Demurrer, contradicts this position. As explained by the Court in Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, “[n]either legal title nor absolute ownership of the property is necessary.” (Id. at 45.) “A party need only allege it is ‘entitled to immediate possession at the time of conversion.’” (Ibid.)

Here, Plaintiff’s allegations of partial ownership are sufficient to meet the above requirement. (¶9, ¶36 and ¶53 of the FAC.)

Thereafter, Defendants suggest their partial ownership renders Plaintiff incapable of alleging a “wrongful act toward or disposition of the property” (Demurrer: 3:20-25), however, once again, Defendants cite no authority to support this assertion. Additionally, once again, the authority cited by Defendants suggests contrary to their position: “One who holds property by virtue of a lien upon it may maintain an action for conversion if the property was wrongfully disposed of by the owner and without authority…” (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) Plummer indicates that an owner of property can nonetheless “wrongfully dispose” of property that another is entitled to possess.

Next, Defendants suggests that Plaintiff’s claim fails, as the boundary fence was replaced. (Demurrer: 3:22-25, citing ¶17-¶22 of FAC.) Defendants suggest that the existence of a newfence defeats Plaintiff’s claim; however, it remains the case that the original fence has been destroyed without Plaintiff’s consent. (¶54-¶55 of FAC.)

Lastly, Defendants assert Plaintiff “failed to plead sufficient facts to establish that Plaintiff incurred damages due to the diminution of value between the old fence and the new one.” (Demurrer: 4:1-2.) Again, Defendants cite no authority which requires this level of specificity, in connection with a conversion claim. The Court finds that Plaintiff has sufficiently alleged damages, based on the allegation the initial shared fence was destroyed. (¶54 of FAC.) Additionally, even assuming further specificity was required, in line with Defendants’ suggestion, Plaintiff alleges the new fence is of an inferior design and build. (¶18-¶22 of FAC.)

With respect to the Fifth Cause of Action for Unjust Enrichment, the Demurrer is sustained with 15-days leave to amend.

There is a split of authority, as to whether “unjust enrichment” is an independent cause of action. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 [“Although some California courts have suggested the existence of a separate cause of action for unjust enrichment [citation], this court has recently held that ‘[t]here is no cause of action in California for unjust enrichment.’”]) This Court, however, opts to follow Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, which treats unjust enrichment as a separate claim.

Per Peterson, “[t]he elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.)

Within this Demurrer, Defendants assert that Plaintiff’s claim fails as Plaintiff has not alleged he contributed to the cost of the new boundary fence and, therefore, has not alleged Defendants “received some sort of benefit which has been retained.” (Demurrer: 4:19-22.) This position is persuasive.

Within the Complaint, Plaintiff alleges that “[b]y their wrongful acts of destroying the Boundary Fence and replacing it with the New Boundary Fence, Defendants were unjustly enriched at the expense, and to the detriment of Plaintiff.” (¶60 of FAC.) Plaintiff does not explain, however, how the destruction of property establishes a “retention of a benefit.”

As noted by the parties, “unjust enrichment” is often equated to a claim for “restitution.” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.) “Common law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient.” (Ibid.) Here, while Plaintiff alleges an improper destruction of shared property, the Complaint does not identify a “retained benefit.”

Lastly, the Demurrer to the Sixth Cause of Action is overruled.

“A plaintiff may recover treble damages and attorney’s fees under section 496(c) when property has been obtained in any manner constituting theft.” (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361.) “While section 496(a) covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (ii) the defendant received or had possession of the stolen property.” (Switzer v. Wood (2019) 35 Cal.App.5th 116, 126.)

Herein, Plaintiff alleges “Defendants feloniously stole, took and carried the personal property of Plaintiff” and “Defendants withheld…said property…knowing the property to be stolen.” (¶62-¶64 of FAC.) The above appears sufficient to allege a violation of Penal Code section 496.

In demurring to this claim, Defendants assert the claim fails to clearly identify the property allegedly stolen and is uncertain, given it references both theft and the receipt of stolen property. (Demurrer: 5:7-10.) The Complaint, however, clearly alleges Plaintiff owned the relevant fence and “Defendants removed the majority” of it. (¶17 and ¶53 of FAC.) Additionally, the fact the claim references both theft and the receipt of stolen property is immaterial, where either allegation is sufficient to support a claim: A Demurrer should be sustained, only, “if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998).

In addition to the above, Defendants assert that “one cannot assert such a claim if one jointly owns the property at issue” (Demurrer: 5:7-8), however, Defendants once again cite no authority to support this assertion. Similarly, Defendants cite no authority in support of their assertion a claim under Penal Code section 496 must be specifically pled. (Demurrer: 5:11-23.)

As noted by the Court in Switzer v. Wood (2019) 35 Cal.App.5th 116, “the issue of whether a wrongdoer’s conduct in any manner constituted a ‘theft’ is elucidated by other provisions of the Penal Code defining theft…” (Id. at 126.) Defendants offer no citations to such Penal Code provisions and no argument based on the same, which establishes Plaintiff’s claim of theft fails.

“Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are]…waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) “When a [party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Ibid.) A court “is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)

Defendants Erik Cutforth and Kerri Cutforth’s motion to strike the request for punitive damages is granted. When the purpose of the penalty is the same as the policy objectives for punitive damages, the plaintiff generally cannot recover both the statutory penalty or treble damages and also the duplicate recovery of punitive damages. Turnbull & Turnbull v. ARA Transportation, Inc., (1990) 219 Cal. App. 3d 811; Marshall v. Brown, (1983) 141 Cal. App. 3d 408, 419; Troensegaard v. Silvercrest Industries, Inc., (1985) 175 Cal. App. 3d 218, 228.

Leave to amend is denied.

Moving Party to give notice.