Judge Kerry Bensinger, Case 23STCV00839 2023-04-12 Tentative Ruling

On January 13, 2023, Plaintiff, Techno-Advanced, Inc. filed a form complaint against defendants Olger Javier Castellanos Mena, Jorge Alexander Ruiz Guzman, Narciso Ernesto Rosales, Andres Cervantes, and Salvador Morales (collectively, “Defendants”) asserting a single cause of action for the intentional tort.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council form complaints are not invulnerable to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1482.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (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.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has satisfied this requirement. (Declaration of Christopher S. Afgani, ¶¶ 4, 5.)

The form complaint alleges the following: “Defendants, and each of them, are former employees of plaintiff whose employment was terminated. Defendants thereafter trespassed and entered construction sites in which plaintiff was retained to furnish and install HVAC equipment as a subcontractor, converted and stole copper lines, tools, material and equipment from the construction sites and vandalized the projects. Plaintiff’s damages amount to $372,000. Because defendants received stolen property, plaintiff is also entitled to treble damages pursuant to Penal Code Section 496.” (Complaint, p. 4.)

Defendants argue that the (1) First Cause of Action fails to state sufficient facts to constitute a cause of action, and (2) the First Cause of Action is uncertain. Specifically, Defendant argues that Plaintiff fails to establish the ownership element of the cause of action for conversion.

Plaintiff contends that the First Cause of Action is not uncertain, as evidenced by Defendants’ ability to identify Plaintiff’s conversion claim. Further, Plaintiff contends the allegation that “plaintiff was retained to furnish and install HVAC equipment as a subcontractor” sufficiently establishes Plaintiff’s ownership or right to possession of the allegedly stolen property.

Plaintiff’s point is well-taken. That Defendants could argue against the sufficiency of Plaintiff’s conversion claim cuts against Defendants’ uncertainty argument. (See Weil & Brown, The Rutter Group California Practice Guide: Civil Procedure Before Trial, Demurrer ¶ 7:85 [“A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.”].) Moreover, the ownership element of a conversion claim is sufficiently pled. The Court draws the inference from the “furnish and install” allegation that Plaintiff owned or had the right to possess the allegedly stolen items. It stands to reason that Plaintiff owned or possessed property at the construction sites, including the copper lines, tools, materials, and equipment.

Defendants further argue that the lack of a specific date or dates on which Plaintiff’s property was allegedly converted shows that the Complaint is inherently vague. This argument lacks merit. The date (or dates) in which the alleged conversion took place is presumptively within Defendants’ knowledge as much as Plaintiff’s. (See Weil & Brown, supra, ¶ 7:86 [a demurrer for uncertainty should be overruled if facts presumptively within defendant’s knowledge.]; see also Khoury, supra, 14 Cal.App.4th at p. 616 (“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”).) Defendants fail to show that the Complaint is deficient.

Defendants’ demurrer to Plaintiff Techno-Advanced, Inc.’s Complaint is OVERRULED.

Defendants are ordered to file a responsive pleading to the Complaint within 10 days of this Order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court