Judge Gary Y. Tanaka, Case YC073016 2023-05-16 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, May 16, 2023

Department B Calendar No. 7

2. Coastline Recovery Services, Inc.’s Motion to Strike Portions of Second Amended Complaint

Coastline Recovery Services, Inc.’s Demurrer to Second Amended Complaint is sustained with 20 days leave to amend.

Coastline Recovery Services, Inc.’s Motion to Strike Portions of Second Amended Complaint is moot.

Plaintiff filed his Complaint on July 17, 2018 and the Second Amended Complaint on March 14, 2023. Plaintiff alleges the following facts. In 2016, Plaintiff agreed to lease from Xchange Leasing, LLC (“Xchange”) a 2016 Volkswagen Jetta. Under the terms of the lease, Plaintiff made the lease payments on the vehicle, through Defendant’s withdrawal of funds that Plaintiff earned, while driving the vehicle for Uber. In 2018, Xchange transferred their interest in the lease to a new entity, Defendant Fair Financial Corp. (“Fair”). In January 2018, Defendant Xchange notified Plaintiff that he failed to make the weekly lease installment payments and that his account for the lease of the vehicle was overdue. Upon receiving this notice, Plaintiff paid the overdue amount to bring his account to balance. Although Plaintiff paid the overdue balance, Defendant Fair hired Defendant Coastline Recovery Services, Inc. (“Coastline”) to repossess the vehicle. Plaintiff alleges that personal items belonging to Plaintiff were stolen from him. Plaintiff set forth the following causes of action in the SAC: 1. Conversion; 2. Trespass to Chattels; 3. Violation of Unfair Competition Law (Cal. Business & Professions Code §§ 17200 et seq.).

Defendants Fair and Xchange (“settling Defendants”) proceeded to arbitration with Plaintiff. Coastline Recovery Services did not participate in arbitration. On or about June 18, 2021, Plaintiff and the settling Defendants entered into a settlement agreement. The SAC is directed only against remaining Defendant Coastline Recovery Services.

Defendant filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decls., Karen E. Adelman, Esq.).

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant demurs to Plaintiff’s Second Amended Complaint and the first through third causes of action pursuant to CCP § 430.10(e) on the grounds that the causes of action fail to state facts sufficient to constitute a cause of action. Defendant also demurs to pursuant to CCP § 430.10(f) on the grounds that the causes of action are uncertain.

The demurrer to the first and second causes of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient facts to constitute a cause of action.

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages....” Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 551. Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395. To state a cause of action for conversion against a repossession company, Plaintiff must allege facts to demonstrate a breach of peace such as “force or threats of force” used to secure possession of the automobile. Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 770.

“[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels lies where an intentional interference with the possession of personal property has proximately caused injury. In cases of interference with possession of personal property not amounting to conversion, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use. In modern American law generally, [t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort’ of conversion.” Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400–1401 (internal citations and quotations omitted).

With the SAC, Plaintiff has narrowed his focus to the alleged theft of specific items in his vehicle. (SAC, ¶¶ 17). Thus, as to the first cause of action, the line of authority requiring a breach of peace to repossess a vehicle is either not applicable, or, alternatively, the breach of peace itself is demonstrated by the alleged theft. In addition, as to the second cause of action, Plaintiff has also alleged that Defendant has intentionally interfered with his possessory rights to those personal items and that Defendant caused Plaintiff damages.

However, similar to the FAC, the pertinent allegations directed against demurring Defendant are again made on information and belief including the fundamental allegation involving Defendant’s hiring and role in the repossession. (SAC, ¶¶ 11, 12, 14, 17, 21, 22, 24, 26-28, 31). “[P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true and thus a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.” Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159 (internal citations and quotations are omitted; emphasis in original.) Here, Plaintiff has failed to allege the supporting facts by which he believes that the allegations made on information and belief are true. The Court notes that it is not clear why Plaintiff has alleged the above matters upon information and belief because to make certain allegations it would appear that Plaintiff would have been required to have personal knowledge of those matters. However, it is not the Court’s role or position to conjecture as to such matters.

The demurrer to the first and second causes of action is sustained with 20 days leave to amend.

Third Cause of Action for Violation of Unfair Competition Law (Cal. Business & Professions Code §§ 17200 et seq.)

Defendant’s demurrer to the third cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to constitute a cause of action.

“California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 618–19. “By proscribing ‘any unlawful’ business act or practice, the UCL “borrows” rules set out in other laws and makes violations of those rules independently actionable. [Citation.] However, a practice may violate the UCL even if it is not prohibited by another statute.” Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 835. “The unfair competition law is independent of the Unfair Practices Act and other laws. Its remedies are “cumulative ... to the remedies or penalties available under all other laws of this state” (§ 17205), but its sanctions are less severe than those of the Unfair Practices Act. Prevailing plaintiffs are generally limited to injunctive relief and restitution. (§ 17203; see ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1268 [61 Cal.Rptr.2d 112, 931 P.2d 290].) Plaintiffs may not receive damages, much less treble damages, or attorney fees.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.

Based on the underlying allegations noted above, Plaintiff has failed to allege sufficient facts to demonstrate unlawful, fraudulent, and/or unfair business practices on the part of demurring Defendant.

Defendant’s demurrer to the third cause of action is sustained with 20 days leave to amend.

The court may, upon a 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. CCP § 436(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. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Defendant’s motion to strike is deemed moot upon the sustaining of the demurrer to each cause of action directed against Defendant.