Judge: Glenn R. Salter, Case: 21-1231638, Date: 2023-08-10 Tentative Ruling

Demurrer

The demurrer of defendant First American Title Company to the Fourth Cause of Action of the Third Amended Complaint is SUSTAINED without leave.

The fourth cause of action is for violation of Penal Code section 496.  Although a 496 claim may be made in a business setting (Siry Investment, LP v. Farkhondehpour (2022) 13 Cal.5th 333), the plaintiff must still allege facts, not simply conclusions, as to defendant’s intent.

Section 496, subdivision (a), provides in relevant part:  “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained” may be sued under subdivision (c) for three times the amount of actual damages, and attorney fees.

Here, allegations that plaintiff is “informed and believes” that defendant “made an intentional and deliberate decision not to comply with [plaintiff’s] withdrawal instructions in order to aid [another] in selling the property,” is insufficient to state a cause of action.  At best, defendant was advised that plaintiff believed the property had been stolen and a lawsuit had been filed.  There are no allegations as to any facts which would support a claim defendant knew the property had been stolen.

Motion to Strike

The motion of defendant to strike the punitive damages allegations of the Third Cause of Action for breach of fiduciary duty is GRANTED.

This is a new allegation made as part of the filing of the Third Amended Complaint.  As with the demurrer, the allegations are that defendant conspired with another to record Notices of Withdrawal of the Lis Pendens in order to help Damon Kuntz obtain the equity in the property.  But there are no facts alleged that would support such a conspiracy claim.

If the plaintiff uncovers facts that would support such a conspiracy and acts that would show malice, oppression, or fraud, the plaintiff may request leave to amend the complaint to add them and then allege a claim for punitive damages.

Notice

The defendant shall give notice.