Judge: H. Jay Ford, III, Case: 23SMCV01831, Date: 2024-06-04 Tentative Ruling

Case Number: 23SMCV01831    Hearing Date: June 4, 2024    Dept: O

  Case Name:  Sjostrand v Center Street Lending Corp, et al.

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendants Center Street Lending Corporation, Bye Bye House, Inc., and Marco Toscano

RESP. PARTY:         Plaintiff Peter Sjostrand

TENTATIVE RULING

            Defendants Center Street Lending Corporation, Bye Bye House, Inc, and Marco Toscano’s Demurrer without Motion to Strike to all causes of action within Plaintiff Peter Sjostrand’s FAC is SUSTAINED as to each cause of action with 20 days leave to amend.

Defendant’s Request for Judicial Notice is granted.  Based on the facts judicially noticed, plaintiff cannot as a matter of law allege he is the owner of the Casiano Property or had a legal the right to occupy or possess that property. (RJN ex. 8, grant deed from Birgitta M. Sjostrand to Bye Bye House Inc.)  Nor can Plaintiff allege he physically resided at the Casiano Property or was in physical possession of that property.  (RJN ex. 2, Plaintiff’s First Amended Complaint Case no. 22SMCV00534 (filed11-3-2022), pg. 2:23-24 “Peter Sjostrand is the only child of Birgitta and her husband Fritiof Sjostrand. He resides in Bolder Colorado.”  

does not plead enough facts to meet the elements of the 1^st–5^th causes of action in the FAC.

I.                Defendants Demurrer to 1^st cause of action for Trespass to Land—SUSTAINED without leave to amend

“In the context of a trespass action, ‘possession’ is synonymous with ‘occupation’ and connotes a subjection of property to one's will and control.” (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105  Plaintiff fails to allege that he personally occupied or otherwise was in possession or control of the Casio Property, as opposed to some unidentified “occupant.”  Based on the judicially noted facts, Sjostrand cannot allege he owned the property or that he personally occupied the property.  Sjorstrand, therefore, fails to allege he was Defendants Demurrer to the first cause of action for Trespass to Land is SUSTAINED WITHOUT leave to amend.

II.             Defendants Demurrer to 2^nd cause of action for Trespass to Chattels—SUSTAINED with 20 days leave to amend.

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“It is well settled that a person having neither the possession nor the right to the possession of personal chattels, cannot maintain trespass or trover for an injury done to the property.” (Triscony v. Orr (1875) 49 Cal. 612, 617, internal citations omitted.)  See also, Judicial Council Of California Civil Jury Instruction 2101, Judicial Council Of California Civil Jury Instruction 210.  “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.” (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401; see Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 [“injury to the personal property or the possessor's interest in it is an element of the action”].)

Sjostrand pleads that Defendants “rambled” through his and his mothers personal property and took that property. Sjostrand does not allege how he possessed that property or how the defendants damaged his personal property. 

Thus, Defendants demurrer to the 2^nd cause of action for Trespass to Chattels is SUSTAINED with 20 days leave to amend.

III.           Defendants Demurrer to 3^rd cause of action for IIED—SUSTAINED with 20 days leave to amend

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct].) If reasonable persons may differ, it is for the jury to determine whether the conduct was actually outrageous. (Id.)

Sjostrand does not plead whether he was in actual control of the Property at the time of the alleged “breaking into” of the Property, nor does Sjostrand plead that Defendants intended to cause or had reckless disregard for the probability of causing emotional distress. Furthermore, Sjostrand bases his allegations on a TRO that was terminated by the Court on 3-2-23. (See FAC, p. 4:10-12l; see also RJN, Ex. 3, p. 4 [“[Sjostrand’s] request for preliminary injunction is DENIED. …. The TRO is terminated.”) Sjostrand pleads that the alleged break in occurred on 3-27-23 and 5-17-23, after the TRO was terminated. (See FAC, p. 2.)

Thus, Defendants Demurrer to the 3^rd cause of action for IIED is SUSTAINED with 20 days leave to amend.

IV.           Defendants Demurrer to 4^th cause of action for NIED—SUSTAINED without leave to amend

NIED is not a separate tort, but the tort of negligence and duty is an essential element. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4^th 965, 985.  The elements of NIED are (1) that defendant was negligent; (2) plaintiff suffered serious emotional distress; and (3) that defendant’s negligent was a substantial factor in causing plaintiff’s serious emotional distress.  (See CACI 1620.)   

“[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence....The traditional elements of duty, breach of duty, causation, and damages apply. [¶ ] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Sjostrand does not plead that Defendants owed Sjostrand a duty, there was a breach of that duty, causation, and damages. Thus, Defendants Demurrer to the 4^th cause of action for NIED is SUSTAINED with 20 days to amend.

V.              Defendants Demurrer to 5^th cause of action for Conversion—SUSTAINED with 20 days leave to amend.

            “Conversion is the wrongful exercise of dominion over the property of another.  The elements of a 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.  It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 441, 451-452.)

            Sjostrand does not plead that the alleged personal property in the house was owned or controlled by Sjostrand at the time of the alleged conversion. Sjostrand does not plead damages.

Thus, Defendants Demurrer to the 5^th cause of action for Conversion is SUSTAINED with 20 days leave to amend.