Judge: Michael P. Linfield, Case: 22STCP03235, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCP03235    Hearing Date: January 12, 2023    Dept: 34

SUBJECT:         Demurrer

Moving Party:  Aquircorps Norwalk Auto Auction

Resp. Party:    None

Defendant’s Demurrer is OVERRULED.

BACKGROUND:

On August 16, 2022, Plaintiff Felix Fernando Campos, in propria persona, filed his Complaint against Defendant Aquircorps Norwalk Auto Auction on the following causes of action:

(1)       Writ of Possession Ex Parte;

(2)       Claim and Delivery;

(3)       Conversion;

(4)       Violation of Civil Code sections 1812.600, et seq.; and

(5)       Violation of Penal Code section 496, subdivision (a).

Plaintiff’s case number for the August 16, 2022 Complaint is listed as 22STCV26447.

On September 1, 2022, Plaintiff filed a new Complaint against Defendant, which was substantively identical to the earlier-filed Complaint, except that it also included Plaintiff’s Declaration and various exhibits regarding the car at issue in this matter. Plaintiff’s case number for the September 1, 2022 Complaint is 22STCP03235.

On November 2, 2022, Defendant filed its Demurrer.

On November 30, 2022, Defendant filed its Notice of Non-Opposition to the Demurrer.

On December 7, 2022, the Court advanced and then continued the Hearing on the Demurrer to January 12, 2022.                                               

On December 19, 2022, after some initial procedural history, the Court recognized the two cases, assigned both cases to the undersigned judicial officer in Department 34, designated 22STCV26447 as the lead case, and placed off calendar all hearings in cases other than the lead case.

Plaintiff has not filed an opposition or other response to the Demurrer.

ANALYSIS:

I.           Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), 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. (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.” (Id.)

II.        Discussion

a.          Procedural Issues

As indicated above, on December 19, 2022, the Court related cases 22STCV26447 and 22STCP03235, made 22STCV26557 the lead case, and took off-calendar all hearings in the second case, 22STCP3235.  Therefore, this demurrer is no longer on-calendar for a hearing today.

However, for the sake of judicial economy, and to forestall this demurrer being filed again, the Court reaches the substantive issues raised by the demurrer.

b.          Substantive Issues

Defendant demurs against the Complaint on the following grounds: (1) that the fourth cause of action for injunctive relief fails as a matter of law because it is a remedy and not a cause of action; and (2) that the fifth cause of action for violation of Penal Code section 496 fails as a matter of law because Plaintiff failed to allege that the subject property was stolen. (Demurrer, pp. 8:8–10, 8:17–19.)

        “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  (Estelle v. Gamble (1976) 429 U.S. 97, 106 [internal quotations omitted].)

Upon considering Plaintiff’s Complaint under the less stringent standard appropriate for a person acting without a lawyer, the Court disagrees with Defendant’s arguments.

First, Plaintiff specifically cites in his Complaint violations of Civil Code sections 1812.602, 1812.603, and 1812.604. While it is true that the first of these three sections are remedies (specifically, for injunction and restitution) and that the third section is a criminal violation, it is clear to the Court that Plaintiff is actually invoking the cause of action listed in section 1812.600.

Among other things, Civil Code section 1812.600: (1) requires auctioneers and auction companies to maintain a bond issued by a surety company; (2) provides that this bond is payable to the State of California and is for the benefit of any person damaged by any fraud, dishonesty, misstatement, misrepresentation, deceit, unlawful acts or omissions, or failure to provide services by the auctioneer or auction company while acting within the scope of their employment; (3) allows a plaintiff to maintain an action for enforcement of these duties and/or for payment of a civil penalty in the amount of $1,000.00; and (4) allows a prevailing plaintiff to obtain reasonable attorney’s fees and costs, in addition to the civil penalty. (Civ. Code, § 1812.600, subds. (a), (b), (l), and (m).)

Thus, the Court finds that Plaintiff is invoking this cause of action. The Court OVERRULES Defendant’s Demurrer as to the fourth cause of action.

Second, Penal Code section 496 states in relevant part:

“Every 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, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.” (Pen. Code, § 496, subd. (a).)

“Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” (Pen. Code, § 496, subd. (c).)

        Plaintiff clearly alleged in his Complaint: (1) that Defendant’s Plaintiff’s vehicle was converted by force; (2) that Defendant continues to unlawfully retain the property; and (3) that Defendant failed to return the vehicle on demand. (Complaint, ¶¶ 7–8, 13–15, 18–19.) In other words, Plaintiff has not only alleged that the car was stolen but alleged sufficient elements to constitute a cause of action under Penal Code section 496.

        The Court OVERRULES Defendant’s Demurrer as to the fifth cause of action.

III.     Conclusion

Defendant’s Demurrer is OVERRULED.