Judge: H. Jay Ford, III, Case: 21STCV34047, Date: 2022-12-13 Tentative Ruling

Case Number: 21STCV34047    Hearing Date: December 13, 2022    Dept: O

Case Name:  Njoku v. Ammari, et al.

SUBJECT:                (1)  DEMURRER TO COMPLAINT

                                    (2)  MOTION TO STRIKE

MOVING PARTY:   Defendant Razan F. Ammari

RESP. PARTY:         Plaintiff Darlington C. Njoku

TENTATIVE RULING

            Defendant Ammari’s Demurrer to Complaint is OVERRULED as to the 2^nd cause of action for conversion and 6^th cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the  1^st cause of action for trespass to chattels, 3^rd cause of action for negligence, 4^th cause of action for negligence per se (Penal Code §459), 5^th cause of action for negligence per se (Penal Code §484) and 7^th cause of action for breach of the implied covenant of good faith and fair dealing.  Defendant Ammari’s Motion to Strike is DENIED. Defendant to answer in 20 days.

            Defendant Ammari argues the complaint is uncertain and fails to state a claim because allegations are made against “Defendants” but she is the only defendant.  Defendant Ammari ignores the DOE defendants named in this action.  Plaintiff’s allegations against “Defendants” includes Ammari and the DOE defendants.  Use of the term “Defendants” is therefore not uncertain or improper. 

I.  1^st cause of actionfor trespass to chattels—SUSTAINED WITHOUT LEAVE TO AMEND

            “Where the act in question does not amount to a dispossession, as in the case of conversion, but of intermeddling with or use of or damage to the property, the normal action will be for trespass. The plaintiff recovers the actual damages suffered by impairment of the property or loss of its use.”  5 Witkin, Summary (11^th ed. 2022), Torts §832. 

            “Dubbed by Prosser the ‘little brother of conversion,’ the 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, trespass 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.”  Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350–1351.

            Plaintiff alleges that Defendants stole his personal property.  Plaintiff does not allege intermeddling with or use of or damage to his personal items.  Plaintiff alleges complete dispossession and theft of his property.  Plaintiff does not respond to Defendants’ demurrer on this ground.  The burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend.  See Hendy v. Losse (1991) 54 Cal.3d 723, 742.  Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. 

II. 2^nd cause of action for conversion—OVERRULED

            Conversion is the wrongful exercise of dominion over the property of another.  See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451 (Zerin ).  The elements of a claim for conversion are (1) the plaintiff's ownership or right to possession of the property at the time of the conversion, (2) the defendant's conversion by a wrongful act or disposition of property rights, and (3) damages.  Id.  It is not necessary that there be a manual taking of the property, only an assumption of control or ownership over the property, or that the alleged converter has applied the property to his or her own use.  Id. at pp. 451–452. A mere contractual right of payment, without more, is insufficient.  Id. at p. 451.  “A cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff's possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him.” Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284. 

            Plaintiff alleges that his personal property was stolen from the premises he was leasing from Defendant Razan.  See Complaint, ¶14.  Plaintiff alleges that Defendants entered the subject property without his permission and deprived him of his personal property.  See Complaint, ¶35.  Plaintiff allegation must be accepted as true.  See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732-733.  Plaintiff’s allegations state a claim for conversion. Demurrer is OVERRULED to the 2^nd cause of action for conversion.

III. 3^rd cause of action for Discrimination in Violation of the Unruh Act—SUSTAINED WITHOUT LEAVE TO AMEND

            Plaintiff captioned this cause of action as on for violation of Unruh, but the caption to the complaint indicates it was intended to be a cause of action for negligence. Plaintiff argues in opposition to this demurrer that the cause of action is for negligence.  The 3^rd cause of action is not captioned one for negligence, nor does it allege any negligent act.  According to Plaintiff, Defendants intentionally entered to subject property and intentionally deprived him of this property.  Plaintiff does not allege any breach of an applicable duty of care.  Plaintiff fails to identify any negligent act in his opposition to the demurrer.  Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. 

IV.  4^th and 5^th causes of action for negligence per se—SUSTAINED WITHOUT LEAVE TO AMEND

            Plaintiff argues the negligence per se causes of action are merely extensions of the 2^nd cause of action for negligence.  However, the 2^nd cause of action for negligence fails to state a claim. 

            Moreover, Plaintiff’s 4^th and 5^th causes of action are captioned “negligence per se” and they rely on two Penal Code sections, Penal Code §459 and Penal Code §484.  Penal Code §459 defines the crime of burglary.  Penal Code §484 defines the crime of theft.  Neither would support a negligence claim, because they are both based on intentional wrongful acts. 

            In opposition, Plaintiff fails to explain how the negligence per se causes of action can be amended to state a claim for negligence per se based on Penal Code §§459 and 484.  Plaintiff does not ask for leave to plead claims for violations under Penal Code §§459 and 484.  Demurrer to the 4^th and 5^th causes of action for negligence per se are SUSTAINED WITHOUT LEAVE TO AMEND. 

V.  6^th cause of action for breach of contract—OVERRULED

            Plaintiff sufficiently alleges a breach of contract cause of action.  Plaintiff alleges that he and Razan formed an oral contract to rent the premises from 9-11-19 to 9-25-19 for $15,000.  See Complaint, ¶54.  Plaintiff alleges Defendants forced Plaintiff to leave earlier than agreed upon and failed to refund him any of the $15,000.  Id. at ¶56.  Plaintiff alleges damages in the amount of $15,000.  Id. at ¶57.  On demurrer, Defendant cannot challenge the truth of Plaintiff’s allegation that Defendants forced him to leave early.  See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732-733.  Demurrer is OVERRULED. 

VII.  7^th cause of action for breach of implied covenant—SUSTAINED WITHOUT LEAVE TO AMEND

            “A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.”  Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394. “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.”  Id. at p. 1395.   “Thus, it is well settled the implied covenant does not extend so far as to impose enforceable duties that are beyond the scope of the contract, nor does the covenant prohibit actions that are expressly authorized by the contract's terms.”  Carma Developers (Cal.), Inc. v. Marathon Development California (1992) 2 Cal.4th 342, 373.

            Plaintiff’s 7^th cause of action for breach of the implied covenant of good faith and fair dealing is based on the exact same conduct as the 6^th cause of action for breach of contract. Plaintiff alleges breach of the exact same express contractual obligation—allowing him to use the rental premises for the period from 9-11-19 to 9-25-19.  In opposition, Plaintiff fails to identify any way he can distinguish the 7^th cause of action from the 6^th cause of action. Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. 

VIII. Motion to Strike Punitive Damages—DENY

            “There is no question that punitive damages may be recovered in an action for conversion. Punitive damages are recoverable, however, only upon a showing of malice, fraud or oppression.”  Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.

            Plaintiff alleges a cause of action for conversion based on Defendants’ intentional theft of his personal belongings from the subject property. These facts support a punitive damages claim based on malice.