Judge: Michael Small, Case: 24STCV30961, Date: 2025-02-26 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 24STCV30961    Hearing Date: February 26, 2025    Dept: 57

 The Court is sustaining Defendant's demurrer to the ninth and tenth causes of action in Plaintiff's complaint with leave to amend. 

The ninth cause of action asserts a violation of Business and Professions Code section 17531, which provides that it is unlawful for a corporation to advertise defective merchandise unless it is conspicuously and clearly labeled as such.
The complaint fails to allege, as required, that Plaintiff was deceived by Defendant's advertisement identified in the complaint and how Plaintiff was injured by it.  The complaint simply recites Section 17531, and that's it.   

 The tenth cause of action is for conversion. “The elements of conversion 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.” (Duke v. Superior Court (2017) 18 Cal.App.5th 490, 501.)  The complaint alleges that the plaintiff has the immediate right to possession of a specific sum of money, which Defendant converted for its own use. (Complaint, ¶¶ 57-58.) However, as alleged in the complaint, any right that Plaintiff has to that money arises from the warranty that Defendant gave to Plaintiff regarding the vehicle that Plaintiff purchased from Defendant.  The warranty reflects a contractual right. "[A] mere contractual right of payment, without more, will not suffice to support a claim for conversion.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1041 [internal citation omitted].)  Plaintiff does not plead sufficient facts to separately support a cause of action for conversion.

The Defendant appears to have served Plaintiff with a separate motion to strike.  The motion to strike was not filed with the Court, however.  All the Court received was the Plaintiff's opposition to the motion and Defendant's reply brief in support of the motion.  It is clear from the opposition and reply brief, however, that Defendant sought to strike all mention of punitive damages from the complaint.  Plaintiff's entitlement to punitive damages in this action rests on the conversion claim.  In light of the Court's ruling sustaining the demurrer to the conversion claim with leave to amend, the Court is denying the motion to strike as moot.