Judge: Martha K. Gooding, Case: 2022-01248284, Date: 2022-08-29 Tentative Ruling

1)  Demurrer to Cross-Complaint

 

2)  Motion to Strike

 

3)  Case Management Conference

 

The Court rules as follows on the Demurrer and Motion to Strike by Plaintiff/Cross-Defendant Jon Richard Delaney (“Cross-Defendant”) directed to the Cross-Complaint filed by Daniel Hurtado Nava, individually and dba La Bahia de Acapulco Markets, and Shannon Hurtado (collectively, “Cross-Complainants”).  For the reasons set forth below, the Motion to Strike is DENIED; the Demurrer to the third cause of action is OVERRULED; and the Demurrer to the fourth cause of action is SUSTAINED with 15 days leave to amend.

 

 

Motion to Strike

 

Cross-Defendant contends, generally, that the Cross-Complaint fails to state facts sufficient to support the third and fourth causes of action – Declaratory Relief and Conversion – and therefore, Cross-Defendant demurs and seeks to strike the third and fourth causes of action.  However, “a motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.”  Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.  Accordingly, the Motion to Strike is DENIED.

 

Demurrer to Third and Fourth Causes of Action

 

3rd COA for Declaratory Relief

 

A cause of action for declaratory relief has “two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.’ [citation] ‘The “actual controversy” language in … [Code of Civil Procedure] section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.” Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.

 

Here, the form Cross-Complaint alleges that an actual controversy exists between the parties concerning their respective rights and duties because cross-complaint contends and cross-defendants dispute whether a partnership was created between them.  Cross-Complainants allege no partnership was entered into between the parties and seek an order that no partnership was created between the parties.  Cross-Complaint ¶ 9.  Cross-Defendant claims the parties entered into an oral partnership. 

 

Unlike a demurrer to most causes of action, a demurrer to a declaratory relief cause of action may be sustained where it is apparent that full and adequate relief is available in another viable cause of action.  See Schlessler v. Keck (1954) 125 Cal.App.2d 827, 836-837 (trial court properly sustained demurrer to declaratory relief cause of action where “adjudication upon the issues raised in plaintiff’s first cause of action [for slander] would fully and adequately determine all matters actually in controversy between the parties [in the declaratory relief cause of action).

 

Cross-Defendant argues a declaratory relief action is unnecessary because it is essentially a denial of an allegation made in Plaintiff’s Complaint.  Presumably, Cross-Defendant is referring to its first cause of action, for dissolution of partnership.  But Cross-Defendant does not explain how that other cause of action would afford full and adequate relief so as to obviate the need for the declaratory relief the Cross-Complainant seeks. 

 

Moreover, “the mere circumstances that another remedy is available is an insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an action for declaratory relief…generally are resolved in favor of granting relief.”  Osseous Technologies of America, Inc. v. Discovery Ortho Partners LLC (2010) 191 Cal.App.4th 357, 351.

 

Based upon the foregoing, the demurer to this cause of action is OVERRULED.

 

4th COA for Conversion

 

“A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. …A “generalized claim for money [is] not actionable as conversion.”  PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 (internal citations omitted).

 

Here, the Cross-Complaint alleges that Cross-Defendant removed cash and other personal property from the business without Cross-Complainants’ knowledge or consent.  Cross-Complainants allege the business money was deposited into Cross-Defendant’s personal account.  Cross-Complaint ¶ 10.

 

The Court agrees that a cause of action for conversion has not been sufficiently stated.  The Cross-Complaint alleges that Cross-Defendant removed an unspecified amount of cash and that an unspecified amount of business money was deposited into Cross-Defendant’s personal account.  The Cross-Complaint fails to plead a specific sum capable of identification is involved; a generalized claim for money is insufficient.  Moreover, the Cross-Complaint fails to allege Cross-Complainants’ ownership or right to possession of the property allegedly converted or that Cross-Defendant’s acts were wrongful.

 

Based upon the foregoing, the demurrer to this cause of action is SUSTAINED with 15 days leave to amend.

 

Moving Party is ordered to give notice.