Judge: Joel R Wohlfeil, Case: 37-2021-00021625-CU-BT-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 15, 2023

08/18/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2021-00021625-CU-BT-CTL SILLMAN VS REYNOLDS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/17/2023

The special Demurrer (ROA # 830) of Defendants DIXIE J. REYNOLDS, ATLAS STORAGE, LLC, ATLAS STORAGE CALIMESA, LLC, ATLAS STORAGE SOUTH BAY, LLC, ATLAS STORAGE YUCAIPA, LLC, and REYNOLDS CAPITAL ASSETS, L.P, ('Defendants') to the Tenth Cause of Action for Selling and Receiving Stolen Property (Second Supplemental Complaint('SSC') by Plaintiff STEVEN J. SILLMAN's ('Plaintiff'), is OVERRULED.

The concurrent general Demurrer to cause of action 10 is SUSTAINED. Leave to amend will not be permitted.

The special Demurrer for uncertainty lacks merit because the cause of action is not fatally ambiguous or unintelligible. Code Civ. Proc. 430.10(f). On the other hand, the general Demurrer has merit, as discussed below.

The tenth cause of action is premised on a violation of Penal Code section 496. Subsection (a) states: 'Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion ..., or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner ..., shall be punished by imprisonment.' Subsection (c) states: 'Any person who has been injured by a violation of subdivision (a) ... may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.' As alleged, Plaintiff was fraudulently denied a fifty percent ownership interest in Atlas Storage, LLC.

SSC at ¶¶ 1,12 - 20 and 74 - 80. However, pursuant to the plain language of section 496, an intangible ownership interest in a company does not constitute 'property.' See In re Ethan C. (2012) 54 Cal. 4th 610, 627 (statutory language should be given its usual and ordinary meaning, and ordinarily the plain meaning of the statute governs). This situation should be contrasted from Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, which involved the fraudulent diversion of tangible partnership funds.

To the extent, the property alleged to be at issue is the real and personal property constituting each self-storage business location, this property is owned by the companies, and was never bought, stolen or received by Defendants. SSC at ¶ 21. As alleged, it was Plaintiff's ownership interest in these companies that was 'stolen' from him. Similarly, these Defendants never concealed or sold Plaintiff's property. Concealment is not alleged and the real and personal property constituting each self-storage Calendar No.: Event ID:  TENTATIVE RULINGS

2994939 CASE NUMBER: CASE TITLE:  SILLMAN VS REYNOLDS [IMAGED]  37-2021-00021625-CU-BT-CTL business location does not belong to Plaintiff (even if he has an ownership interest in the companies).

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2994939