Judge: Jon R. Takasugi, Case: 23STCV29859, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV29859    Hearing Date: March 27, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Cross-Defendant’s Demurrer to the Cross-Complaint is SUSTAINED with 10 days leave to amend.

            On December 7, 2023, plaintiff Brianna Lingel (“Plaintiff”) filed a complaint against defendants YHALLTOGETHER, Inc. (“YT”), Young Hee Seo (“Young”) and Does 1-50 (“Defendants”) alleging three causes of action for (1) conversion, (2) retaliation, and (3) wrongful termination. Young is YT’s CEO and CFO. (Compl., ¶ 3.)

In late September or early October 2023, Plaintiff began working as a cashier at a restaurant owned by Defendants. (Compl., ¶ 11.) Plaintiff alleges that was subject to Defendants’ numerous unlawful policies. Defendants required an employee to pay Defendants with their own money if: (1) the employee mistakenly did not charge a customer for an add-on food item; (2) a bill that the employee handled ended up being counterfeit; (3) if there was a mistake with an online pick-up order that the employee handled; or (4) if the cash register did not have the correct amount of money at the end of the employee’s shift. (Id., ¶ 12.) Defendants also employed an unlawful tip distribution system. (Id., ¶ 13.) On two occasions in October and November 2023, Plaintiff alerted Defendants that the cash register was short by small amounts and was told that she must pay the difference. (Id., ¶¶ 14-15.) On November 9 and 10, 2023, Plaintiff complained to Defendants about the repayment and tip policies. On November 12, 2023, Plaintiff was terminated. (Id., ¶ 16.)

On January 23, 2024, Defendants filed a cross-complaint against Plaintiff along with an answer to Plaintiff’s complaint, alleging a single cause of action for conversion. Defendants allege that Plaintiff converted “soft drinks, sauces, and other property” that were meant to be used by restaurant customers. (XC, ¶ 3.)

On February 20, 2024, Plaintiff brought the instant demurrer and motion to strike Defendants’ cross-complaint. Defendants filed an opposition on March 12, 2024. Plaintiff replied on March 21, 2024.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)  

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).)  A court may “[s]trike out 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.” (Code Civ. Proc. § 436(b).)

Discussion

I.                   Demurrer

Plaintiff demurs to Defendants’ one and only cause of action for conversion pursuant to Code of Civil Procedure section 430.10(e) and (f). Plaintiff argues that the cross-complaint fails to allege facts sufficient to state a cause of action because the required factual elements to maintain this cause of action are not pled and the cause of action is uncertain.

Conversion is the wrongful exercise of dominion of the property of another. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) In order to prove conversion, a party needs to show that “(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.” (Id.). Furthermore, a plaintiff must show the defendant acted intentionally to wrongfully dispose of the property of another. (Duke v. Superior Court (2017) 18 Cal.App.5th 490, 508.)

            Plaintiff argues that Defendants failed to plead any facts to establish the second element. Indeed, the bare-bones cross-complaint does not allege any facts beyond the conclusory statements that “Cross-Defendant intentionally converted said soft drinkers[sic], sauces and other property without paying for them.” (XC, ¶ 3.)

            Plaintiff further contends that the cross-complaint is fatally uncertain as it identifies the converted goods as soft drinks, sauces, and “other property”. (XC, ¶¶ 2-3.) Such a pleading fails to put Plaintiff on notice of the claims asserted against her and prevents her from preparing an adequate answer.

            Accordingly, Plaintiff’s demurrer to the cross-complaint is sustained with leave to amend.

II.               Motion to Strike

Plaintiff moves to strike punitive damages from the cross-complaint. Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code § 3294(a)). There is no such showing in the cross-complaint. The Cross-Complaint’s only support for punitive damages are two sentences that assert, in a conclusory manner, that Plaintiff “intentionally converted said soft drinkers[sic], sauces, and other property” and “Cross-Complainant is entitled to recover punitive damages for the property which was intentionally stolen.” (XC, ¶¶ 3, 5)

Accordingly, Plaintiff’s motion to strike punitives is granted.

It is so ordered.

Dated: March 27, 2024

Hon. Jon R. Takasugi

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.