Judge: Maurice A. Leiter, Case: 21STCV00429, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV00429    Hearing Date: January 19, 2023    Dept: 54

Hearing Date: January 19, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Third Amended Complaint

Moving Party: Defendant Rachel Kennedy

Responding Party: Plaintiff Suzanne Slater

T/R:     DEFENDANT’S DEMURRER TO THE SECOND CAUSE OF ACTION IS OVERRULED.

DEFENDANT’S DEMURRER TO THE THIRD CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE THIRD AMENDED COMPLAINT WITHIN 15 DAYS OF NOTICE OF RULING.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On July 25,2022, Plaintiff Suzanne Slater filed the operative third amended complaint against Defendant Rachel Kennedy, asserting causes of action for (1) intentional interference with expectancy of inheritance; (2) civil theft; and (3) violation of the Comprehensive Computer Data and Access Fraud Act. Plaintiff alleges that Defendant fraudulently altered the beneficiaries of decedent’s accounts, depriving Plaintiff of her full inheritance.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

            Defendants demur to the second and third causes of action.

A. Second Cause of Action for Civil Theft in Violation of Penal Code § 496(c)

            Penal Code § 496(c) allows “[a]ny person who has been injured by a violation of” section 496 to file suit for treble damages against any “person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained.”

Plaintiff alleges Defendant violated this code by surreptitiously accessing Decedent’s bank accounts and adding herself as a beneficiary. Defendant asserts that this is insufficient because Decedent, not Plaintiff, was the “owner” of the property; and Defendant did not withhold or receive any property from Decedent or Plaintiff upon Decedent’s death.

In opposition, Plaintiff argues that “Penal Code section 496, subdivision (c) provides a private right of action for ‘[a]ny person who has been injured’ by the sale of stolen property. The plain language of the statute clearly does not restrict the right to bring a civil action to the owner of the stolen property.” (Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 17, partially overruled on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.) Plaintiff alleges that Defendant wrongfully altered the accounts to receive property belonging to Plaintiff. Since Decedent’s death, the property has been withheld by Wells Fargo Bank. This is sufficient to state a cause of action under section 496(c).

Defendant’s demur to the second cause of action is OVERRULED.

B. Third Cause of Action for Violation of the Comprehensive Computer Data and Access Fraud Act

            Penal Code § 502 prohibits unauthorized use of computers. It allows “the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c)” to bring a civil action against the violator.

            Defendant asserts that Plaintiff cannot maintain a cause of action under this section because she was neither owner nor lessee of the computer used to allegedly alter the beneficiary status. In opposition, Plaintiff argues she was a lessee of the data. In reply, Defendant points out that this is not alleged in the complaint. Plaintiff has failed to allege standing under section 502.

            The demurrer to the second cause of action is SUSTAINED. The Court declines to allow further leave to amend. This is Plaintiff’s third amended complaint. And even if Plaintiff were to add the allegation that she was a lessee of the data, other facts would not support this allegation. There is no indication Plaintiff leased data from Decedent, and Plaintiff does not provide authority showing authorized access to data is the equivalent of “leasing” data.