Judge: Mark A. Young, Case: 24SMCV00241, Date: 2024-11-20 Tentative Ruling
Case Number: 24SMCV00241 Hearing Date: November 20, 2024 Dept: M
CASE NAME: Benavente v. Maggi
CASE NO.: 24SMCV00241
MOTION: Demurrer and Motion to Strike
the First Amended Complaint
HEARING DATE: 11/20/2024
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.) When considering demurrers, courts read the allegations
liberally and in context. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff
need only allege ultimate facts sufficient to apprise the defendant of the
factual basis for the claim against him. (Semole v. Sansoucie (1972) 28
Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore
Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations
omitted.)
A special demurrer for uncertainty is
disfavored and will only be sustained where the pleading is so bad that
defendant cannot reasonably respond—i.e., cannot reasonably determine what
issues must be admitted or denied, or what counts or claims are directed
against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter inserted
in any pleading; or (2) strike out all or any part of any pleading not drawn or
filed in conformity with the laws of California, a court rule, or an order of
the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,
782 [“Matter in a pleading which is not essential to the claim is surplusage;
probative facts are surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment is
the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in
what manner¿plaintiff can amend the complaint, and¿how¿that
amendment will change the legal effect of the pleading.¿(Id.)
ANALYSIS
Defendant Jorge Maggi
demurs to each cause of action in the First Amended Complaint (FAC), which
includes causes of action for sexual assault, battery, palimony, conversion,
intentional misrepresentation. Defendant also moves to strike the FAC.
Sexual Assault
Defendant argues that the sexual assault
cause of action fails to allege that he intended to cause a harmful or
offensive contact. Civil Code section
1708.5(a) states that “[a] person commits a sexual battery who does any of the
following: (1) Acts with the intent to cause a harmful or offensive contact
with an intimate part of another, and a sexually offensive contact with that
person directly or indirectly results. (2) Acts with the intent to cause
a harmful or offensive contact with another by use of his or her intimate part,
and a sexually offensive contact with that person directly or indirectly
results. (3) Acts to cause an imminent apprehension of the conduct
described in paragraph (1) or (2), and a sexually offensive contact with that
person directly or indirectly results.” Section 1708.5(b) makes “[a]
person who commits a sexual battery upon another . . . liable to that person
for damages, including, but not limited to, general damages, special damages,
and punitive damages.”
The
FAC expressly alleges that “Defendant, on three separate occasions, between
January 8, 2022, through January 16, 2022, Defendant forced himself upon [Plaintiff]
with the intent to cause a harmful or offensive contact with the Plaintiff’s
sexual organ(s).” (FAC ¶ 47b.) The FAC therefore alleges that Defendant
intended to cause such a contact. Defendant does not address this allegation in
his demurrer.
Accordingly,
the demurrer is OVERRULED as to this cause of action.
Battery
Defendant
demurs to the Battery cause of action on statute of limitations grounds. Code
of Civil Procedure section 335.1 sets forth a two-year limitations period for
actions based on “battery, or injury to, or for the death of, an individual
caused by the wrongful act or neglect of another.” The battery cause of action
is based on alleged rapes which occurred on January 16 and 17, 2022. (FAC ¶51) This
action was filed on January 18, 2024, slightly more than two years later.
Plaintiffs
demonstrate that this action was timely filed, but rejected by the Clerk, on
January 16, 2024. (See Opp., Exs. 1-2.) Plaintiffs explain that it took two
days for the initial complaint to be rejected due to a clerical error, namely,
that the “statement of location” was incorrect. (Ex. 1.) Upon receipt of the
denial, this minor defect was cured, and the complaint was refiled and accepted
on January 18, 2024. (Ex. 2.) Caselaw makes clear that where the clerk rejects a filing for immaterial
variance with court rules, it would be error for the court not to consider the
true filing date and deprive a litigant of an otherwise timely claim. (Rojas v. Cutsforth (1998) 67
Cal.App.4th 774, 777–778; Carlson
v. State of California Department of Fish & Game (1998) 68
Cal.App.4th 1268; Mito v. Temple
Recycling Center Corp. (2010) 187 Cal.App.4th 276.)
Accordingly, the demurrer is OVERRULED as
to this cause of action. On its own
motion, the Court corrects the filing date of this complaint to be January 16,
2024. (Rojas v. Cutsforth (1998)
67 Cal.App.4th 774, 777–778; Carlson
v. State of California Department of Fish & Game (1998) 68
Cal.App.4th 1268; Mito v. Temple
Recycling Center Corp. (2010) 187 Cal.App.4th 276.)
Palimony
Defendant reiterates
the statute of limitations arguments as to the Marvin contract claim. Defendant
observes that the FAC does not allege or attach any written contract, that the
contract was oral or implied, and that the claim is therefore barred by the two-year
statute of limitations. (FAC ¶ 60.) As discussed above, the initial complaint
was filed on January 16, 2024, within two years of January 16, 2022. The
complaint was therefore timely filed.
Accordingly, the
demurrer is OVERRULED as to this cause of action.
Conversion
Defendant demurs to the
conversion cause of action on the grounds that there is no alleged wrongful
dominion over her personal property. Defendant argues that the FAC does not
allege with specificity that Plaintiff requested the items returned. Defendant
reasons that if Plaintiff has requested the return of her possessions,
Defendant certainly had “no duty” to ship the furniture and clothes to
Argentina.
Defendant cites no authorities for these
propositions. Caselaw requires no such allegations or specificity. To plead a
cause of action for conversion, one must allege the ultimate facts of (1) the
plaintiff’s ownership or right to possession of personal property; (2)
defendant’s disposition of the property inconsistent with plaintiff’s rights;
and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 119.)
“‘Conversion is any act of dominion wrongfully exerted over another’s
personal property in denial of or inconsistent with his rights therein.’” (Enterprise
Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 747.) “‘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.’” (Id.)
“[C]onversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department
of Corrections (1984) 162 Cal.App.3d 1254, 1257.)
The FAC alleges that,
in order to prevent Plaintiff from reporting the alleged assaults, Defendant
left Plaintiff in Argentina with no access to money, credit cards, or the
ability to purchase plane tickets home. (FAC ¶ 25.) Defendant’s abandonment of Plaintiff
in Argentina with no means of coming home deprived Plaintiff of her personal
possessions left in the home shared by Plaintiff and Defendant. (¶ 29.) Despite
repeated requests by Plaintiff, Defendant continues to refuse to return
Plaintiff’s personal property from the home they had shared. (¶ 30.) Plaintiff’s
personal separate property, including clothes, furniture, and other personal possessions,
were in the home they shared. (¶ 63.) Plaintiff has repeatedly requested the
return of the property. (Id.) Defendant has refused to return, or allow to be
returned, the personal property of the Plaintiff. (Id.) By refusing and not
allowing Plaintiff to access or the return of the property, Defendant has
exercised wrongful dominion over Plaintiff’s personal property. The FAC’s
allegations are therefore sufficient for pleading purposes.
Accordingly,
Defendant’s demurrer is OVERRULED.
Intentional Misrepresentation
Defendant demurs to the fraud cause of action on the grounds
that Plaintiff has not plead the cause with the requisite specificity. “The elements of fraud,
which give rise to the tort action for deceit, are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable
reliance; and (e) resulting damage.” (Golden Eagle Land Investment, L.P. v.
Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.) In California,
fraud must be pled with specificity. (Small v. Fritz Companies, Inc.
(2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead
facts which show how, when, where, to whom, and by what means the
representations were tendered.” (Cansino v. Bank of America (2014) 224
Cal.App.4th 1462, 1469.)
The FAC alleges that when
Plaintiff’s father died, her father left her a one-fifth interest in his real
property located in Argentina with a mortgage held by a third party. (FAC ¶¶
32-33.) Defendant told Plaintiff that, in order to have the mortgage and home
placed under
Plaintiff’s
name, Plaintiff must first place property in the name of Defendant’s “friend”
Guillermo Crutchet. (¶ 34.) Defendant explained that this was
required for international property transfers. (¶ 35.) Defendant further told
Plaintiff that once this was completed, he would ensure the property was then
transferred to Plaintiff. (¶ 36.) Instead of transferring the property and
mortgage to Plaintiff, Defendant had the friend assign the deed and mortgage to
himself. (¶ 37.) Plaintiff would have not transferred her rightful inheritance to
the third party but for the misrepresentation. (¶38.)
On October 20, 2020,
Defendant intentionally misrepresented the nature of the property transfer by stating that in order to have the mortgage
and home placed under Plaintiff, Plaintiff
must first place property in the name of Defendant’s “friend” Guillermo Crutchet. (¶ 67.) On numerous occasions, Plaintiff requested that Defendant show her the paperwork for the property transfer between October
2020 and January 2022, but Defendant
refused to provide this information. (¶¶ 68-69.) Plaintiff did not realize that
she had been defrauded until January 2022, when Defendant left Plaintiff in
Argentina without means to return home.
(¶ 70.) Defendant knew the misrepresentations were false, and intended that Plaintiff
rely upon the misrepresentations for her to transfer her interest in the Property.
(¶¶ 71-72.) Plaintiff actually and justifiably relied upon the
misrepresentation by transferring her property interest. (¶
73.)
The FAC provides facts which fit most of
the specificity factors. The FAC includes the facts of who made the
representations (Defendant), what the misrepresentations were (re: property
transfer to Defendant’s friend), and when the representations were made
(October 20, 2020). The only omitted pieces of information are
where, how and by what means these representations were tendered. Otherwise, the fraud cause of action is
well-pled. Defendant’s contention regarding the reasonableness of Plaintiff’s
reliance will have to be resolved outside the pleading stage.
Accordingly, the
demurrer is SUSTAINED with leave to amend.
Motion to Strike - Relevancy
Defendant moves to strike paragraphs 15, 16 and 17 of the FAC.
Defendant argues that the allegations are irrelevant, because they regard a completely
unrelated incident from 6 years ago. Defendant observes that these irrelevant
allegations are also unduly prejudicial, as the allegations may paint him to be
a criminal and therefore more likely at fault for the subject assault, fraud
and conversion. The Court concurs that these allegations are not relevant to
the claims stated in the FAC. Accordingly, the motion to strike is GRANTED as
to the noticed portions of paragraphs 15-17.
Motion to Strike – Attorney Fees
Defendant moves to
strike attorneys’ fees. Attorney fees are only
recoverable when authorized by contract or statute. (CCP §§ 1021, 1033.5.) Plaintiff
does not allege any basis for fees. Plaintiff does not oppose the motion to
strike. Accordingly, the motion is GRANTED as to attorneys’ fees.
Motion to Strike - Punitive Damages
Defendant argues that
the punitive damages claim fails because the underlying causes of action fail
to state a claim. As discussed above, the FAC states claims for sexual assault,
battery and conversion, each of which could support a claim of punitive
damages.
Section 3294 defines malice as conduct
“intended by the defendant to cause injury to the plaintiff,” or “despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” Despicable is a powerful term
used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll.
Hosp. v. Superior Ct. (1994) 9 Cal.4th 704, 726.) The statute “plainly
indicates that absent an intent to injure the plaintiff, “malice” requires more
than a “willful and conscious” disregard of the plaintiffs' interests. The
additional component of “despicable conduct” must be found.” (Id.)
Here, the FAC alleges intended to harm Defendant
by sexually assaulting her, battering her, as well as converting her personal
possessions. As noted throughout the FAC, Defendant intended to cause harmful
or offensive contact with Plaintiff’s sexual organs. (¶ 47.) Defendant
intentionally harmed Plaintiff by battering her. (¶ 51.) These allegations, if
believed, show Defendant’s intent to harm Plaintiff in his commission of the
torts. Moreover, the allegations of rape may be fairly considered “despicable
conduct”. (See Angie M. v. Superior Court
(1995) 37 Cal.App.4th 1217, 1221-1222 [finding vile, base, or contemptible
conduct in unlawful seduction and sexual abuse of minor by doctor].) Thus, the
punitive damages claim survives.
Accordingly, the motion
is DENIED as to punitive damages.