Judge Monica Bachner, Case 21STCV03788 2023-03-14 Tentative Ruling

Defendants Lionel Pereira’s and Southern California Coin and Stamps’ demurrer to Plaintiff Wesley Robbins’ second amended complaint is sustained as to the 2nd and 12th causes of action without leave to amend as to Pereira Defendants; and overruled as to the 1^st, 7th and 15th causes of action.

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC’s demurrer to Plaintiff Wesley Robbins’ 6th and 7th causes of action in his second amended complaint is sustained without leave to amend as to the allegation of Defendant Williams acting in his official capacity, which is disregarded by the Court, and the Court takes judicial notice of the original allegation pled in the Complaint that Defendant Williams acted in his individual capacity. USSC Defendants’ demurrer to the 6th cause of action is sustained without leave to amend as to Defendant US Storage Centers, Inc. USSC Defendants’ demurrer to the 7th and 15th causes of action are sustained as to Defendants US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, without leave to amend. USSC Defendants’ demurrer to the 8th cause of action is sustained without leave to amend as to Defendant Williams. USSC Defendants’ demurrer to the 9th, 10th, and 12th causes of action are sustained without leave to amend as to Defendants Williams, US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC. USSC Defendants’ demurrer to Plaintiff’s 15th cause of action is overruled as to Defendant Williams.

Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows, and Orcoexpo’s demurrer to Plaintiff Wesley Robbins’ second amended complaint is sustained as to the 2^nd, 8th and 12th causes of action without leave to amend; and overruled as to the 1st, 6th, 7th, and 15th causes of action.

Defendant Briana Pattillo’s demurrer to Plaintiff Wesley Robbins’ second amended complaint is overruled as to the 6th, 7th, and 15th causes of action.

Defendant Eric Pattillo’s demurrer to Plaintiff Wesley Robbins’ second amended complaint is overruled as to the 6th, 7th, and 15th causes of action.

The Court, sua sponte, strikes Plaintiff’s allegations in his 6th cause of action as to Defendants Westport Properties, Inc., and Hawthorne Mini Venture, LLC.

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC’s, Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows, and Orcoexpo’s, Defendant Briana Pattillo’s, and Defendant Eric Pattillo’s motions to strike are continued to March 22, 2023 at 8:30 a.m.

Defendants Lionel Pereira and Southern California Coin and Stamps (collectively, “Pereira Defendants”) demur to the 1st, 2nd, 7th, 12th, and 15th causes of action in Plaintiff Wesley Robbins’ (“Robbins”) (“Plaintiff”) second amended complaint (“SAC”). (Motion Pereira, pg. 4; C.C.P §§430.10(a), (d), (e), (f).) Pereira Defendants also move to strike portions of Plaintiff’s SAC. (Motion Pereira, pg. 5.)[1]

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC (collectively, “USSC Defendants”), demur generally and specially to Plaintiff’s 6th, 7th, 8th, 9th, 10th, 12th, and 15th causes of action in his SAC. (Notice of Motion Demurrer USSC, pgs. 2-3; C.C.P §§430.10(e), (f).) USSC Defendants also move to strike portions of Plaintiff’s SAC. (Notice of MTS USSC, pgs. 2-6; C.C.P. §§435-437.)

Defendants Stephen Pattillo, individually and dba Quality Stamp Shows, and Orcoexpo (collectively, “Stephen Defendants”) demur to Plaintiff’s SAC. (Notice of Motion Demurrer Stephen, pg. 2; C.C.P §§430.10, 430.30.) Stephen Defendants also move to strike portions of Plaintiff’s SAC. (Notice of MTS Stephen, pg. 1.)

Defendant Briana Pattillo (“Briana”) demurs to Plaintiff’s SAC. (Notice of Motion Demurrer Briana, pg. 2; C.C.P §§430.10, 430.30.) Briana also moves to strike portions of Plaintiff’s SAC. (Notice of MTS Briana, pg. 1.)

Defendant Eric Pattillo (“Eric”) demurs to Plaintiff’s SAC. (Notice of Motion Demurrer Eric, pg. 2; C.C.P §§430.10, 430.30.) Eric also moves to strike portions of Plaintiff’s SAC. (Notice of MTS Eric, pg. 1.)

Pereira Defendants’ 12/16/22 request for judicial notice of the Declaration of Lionel Pereira and Exhibits A-D is denied as the requested materials are not judicially noticeable under Evidence Code §451 or §452.

USSC Defendants’ 12/16/22 request for judicial notice of this Court’s 12/15/21 Order and 10/12/22 Order are denied, as this Court does not need to take judicial notice of previous filings in the instant case.

Plaintiff’s SAC alleges thirteen causes of action: (1) civil conspiracy, (2) fraud (I), (3) tortious interference (I), (4) defamation, (5) invasion of privacy, (6) trespass, (7) conversion, (8) tortious interference (II), (9) fraud (II), (10) gross negligence, (11) appropriation, (12) intentional infliction of emotional distress (“IIED”), and (15) receipt of stolen property.[2] The facts alleged in Plaintiff’s SAC arise from an alleged conspiracy by members of southern California stamp clubs against Plaintiff, beginning in 2018, to convert Plaintiff’s stamps, philatelic covers, books, stamp albums, stamp collections, and items kept by Plaintiff in roughly 200 banker boxes (“Inventory”) at a storage unit (“Unit C94”) in Hawthorne, California. (See SAC pgs. 4, 5.)

“[A] demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562; see also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].) 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, 318.)

Pereira Defendants filed the instant motion on December 16, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition to all moving Defendants’ demurrers. On March 2, 2023, Pereira Defendants filed their reply.

In support of their demurrer to Plaintiff’s 1st (civil conspiracy), 2nd (fraud), 7th (conversion), 12th (IIED), and 15th (receipt of stolen property) causes of action, Pereira Defendants argue: (1) the 1st cause of action does not name Defendant Lionel Pereira, but Plaintiff’s prayer for relief seeks damages against him, which is a defect or misjoinder of parties; (2) the 2nd cause of action does not name Defendant Lionel Pereira, which is a defect or misjoinder of parties; (3) the 7th cause of action is uncertain, ambiguous, and unintelligible; (4) the 12th cause of action fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous, and unintelligible; and (5) the 15th cause of action is based on a criminal action and this court does not have jurisdiction to hear or consider the action. (Motion Pereira, pg. 5.)

“Conspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another. . . . A conspiracy requires evidence ‘that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it.’ Thus, conspiracy provides a remedial measure for affixing liability to all who have ‘agreed to a common design to commit a wrong’ when damage to the plaintiff results. The defendant in a conspiracy claim must be capable of committing the target tort.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652; CACI 3600.)

Pereira Defendants argue Plaintiff’s 1st cause of action does not name Defendant Lionel Pereira as a party, but seeks damages against Defendant Lionel Pereira, and a demurrer should therefore be sustained without leave to amend. (Pereira Defendants Memorandum, pgs. 15-16; see SAC ¶701.) However, Pereira Defendants have previously filed a demurrer and did not raise this issue. “[D]efendant will not be able to raise in the successive demurrer any issues that could have been, but were not, raised in the first demurrer.” (Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial, §7:139 (The Rutter Group 2022) citing Code of Civ. Proc. § 430.41(a), (b).)

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Pereira Defendants argue Plaintiff’s 2nd cause of action does not name Pereira Defendants and their demurrer should be sustained without leave to amend. (Pereira Defendants Memorandum, pg. 16.)

Plaintiff concedes that Pereira Defendants should be removed from the second cause of action without leave to amend. (Omnibus Opposition Demurrers, pg. 4.) Accordingly, Pereira Defendants’ demurrer to Plaintiff’s 2nd cause of action is sustained without leave to amend as to Pereira Defendants.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff’s ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. 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.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)

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, 39 Cal.3d at pg. 318.) Pereira Defendants demurrer to Plaintiff’s 7th cause of action attempts to litigate the merits of Plaintiff’s conversion claim on the basis that the SAC makes statements that are unsupported and unsubstantiated. (See Pereira Defendants Memorandum, pgs. 17-23.)[3] Pereira Defendants’ arguments on the merits of Plaintiff’s claims are premature and cannot be sustained on a demurrer for uncertainty. Accordingly, Pereira Defendants’ demurrer to the 7th cause of action is overruled.

To allege a cause of action for IIED, a plaintiff must allege the following elements: (1) the complained-of conduct must be outrageous, that is, beyond all bound of reasonable decency (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 [“no occasion for the law to intervene in every case where someone’s feelings are hurt”]); (2) the conduct must be “intended to inflict injury or engaged in with the realization that injury will result” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210); (3) the plaintiff must demonstrate that s/he suffered severe emotional distress (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946). “A defendant’s conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, citations and quotations omitted.)

Pereira Defendants argue Plaintiff’s cause of action fails to allege facts of extreme and outrageous conduct relevant to Pereira Defendants, as Plaintiff’s only allegations in connection to Pereira Defendants is SAC ¶646[19]: “Defendants of the Hawthorne Heist itself and subsequent concealments thereof by trespassers, burglars, thieves, receivers of stolen property and convertors . . . .” (Pereira Defendants Memorandum pg. 24; SAC, pg. 117.)

Plaintiff failed to sufficiently allege a cause of action for IIED against Pereira Defendants. (See SAC ¶¶443-450.) Plaintiff’s allegations that Defendant Lionel Pereira knew “the stuff Vidal had dragged into [Defendant Lionel Pereira’s] shop was stolen property” sometime from April to May 2018 is not conduct that is outrageous beyond all bounds of reasonable decency. (SAC ¶¶448, 449; Cervantez, 24 Cal.3d at pg. 593.) Plaintiff does not provide a sufficient showing to grant his request for leave to amend the 12th cause of action, stating only that he believes the claim “requires amendments for clarification.” (Plaintiff’s Omnibus Opposition Demurrers, pg. 10.) Accordingly, Pereira Defendants’ demurrer to the 12th cause of action is sustained without leave to amend as to Pereira Defendants.

Penal Code §496 provides that “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(c).)

Pereira Defendants argue Plaintiff’s cause of action is based on a criminal action, and this Court does not have jurisdiction to hear or consider the action. (Pereira Defendants Memorandum, pg. 25.)

This Court has jurisdiction to hear a cause of action brought under Penal Code §496. A criminal conviction is not a prerequisite to recovery of treble damages under statute setting out special civil remedies for receipt of stolen property; rather, all that is required for entitlement to treble damages is that a violation of receiving stolen property offense be found to have occurred. (See Switzer v. Wood (2019) 35 Cal.App.5th 116; Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098.) Accordingly, Pereira Defendants’ demurrer to Plaintiff’s 15th cause of action is overruled.

USSC Defendants filed the instant motion on December 16, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, USSC Defendants filed their reply.

In support of their demurrer to Plaintiff’s 6th (trespass), 7th (conversion), 8th (tortious interference), 9th (fraud), 10th (gross negligence), 12th (IIED), and 15th (receipt of stolen property) causes of action, USSC Defendants argue each cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. (Notice of Motion Demurrer USSC, pgs. 2-3.)

“Trespass is an unlawful interference with possession of property. The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.” (CACI No. 2000; Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262, as modified (Nov. 6, 2017).)

USSC Defendants argue Plaintiff’s SAC made new, contradictory, and unintelligible allegations about Defendant Williams that directly conflict with Plaintiff’s conversion cause of action, rendering the claims uncertain. (Demurrer USSC, pg. 8.) Specifically, USSC Defendants argue Plaintiff’s trespass allegations in the FAC conflict with the allegations in the SAC. Plaintiff’s FAC alleged the following in his 7th cause of action for conversion:

Williams knowingly and intentionally enabled the trespass of [Stephen] Pattillo, [Quality Stamp Shows], [Orcoexpo], [Briana], [Eric,] and Doe[s] into Unit C94 and removed portions of the Plaintiff’s Inventory to (a) an empty storage locker at US Storage Centers-South Bay, and (b) to one or more vehicles, either with or without the help of the ; [sic] this is known as ‘aforementioned Defendants; (c) then removed and enabled the removal of Inventory items off the US Storage Centers-South Bay premises vehicles of [Stephen] Pattillo, [Quality Stamp Shows], [Orcoexpo], [Briana], [Eric,] and Doe[s].

(FAC ¶375.) Plaintiff’s SAC alleges the following in the 6th cause of action for trespass:

Williams, with a key to Plaintiff’s lock for Unit C94, opened the lock and determined that Unit C94 was in use and was full of Plaintiff’s Inventory items. Williams notified the Owner and management that Unit C94 was full of boxes and that an auction was needed to dispose of the property in Unit C94. Despite knowing that Plaintiff owned the property within Unit C94, Williams did not notify Owner and management that Plaintiff was using Unit C94, nor the size and nature of the contents within Unit C94. Nor did Williams notify Plaintiff that contents of Unit C94 were to be removed. Rather than an auction, Williams, exercising his ‘Property Manager’ role, was determined to move the contents in an unconventional manner.

(SAC ¶374.) USSC Defendants’ argument that Plaintiff’s pleading is uncertain as to “moving” Plaintiff’s contents is unavailing; it can be reasonably determined from Plaintiff’s allegations what issues must be admitted or denied and what counts or claims are directed against USSC Defendants, specifically Defendant Williams. Further, Plaintiff’s inclusion of Exhibit 31 to the SAC does not negate the allegations in Plaintiff’s cause of action for trespass simply because bankers’ boxes continued to remain in the unit after the alleged trespass and conversion took place.

USSC Defendants argue Plaintiff’s original complaint contradicts allegations in the SAC with regards to Williams acting in his official capacity and amounts to sham pleading. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.) Plaintiff’s Complaint alleged Williams in participating in the trespass against Plaintiff, while alleged to be “an employee of [US Storage Centers,] Westport [Properties, Inc.,] and [Hawthorne] Mini [Ventures, LLC,] acted outside his official capacity as general manager of the property in this regard.” (Complaint ¶325.) Plaintiff failed to provide a plausible explanation for the contradictory allegations. Accordingly, Plaintiff’s allegation in the SAC that Williams “acted in his official capacity” in the cause of action for trespass constitutes a sham pleading, is disregarded by the Court, and the Court takes judicial notice of the original allegation pled in the Complaint. (Owens, 198 Cal.App.3d at pg. 383-384.)

USSC Defendants’ demurrer to the 6th cause of action is sustained without leave to amend as to the allegation of Defendant Williams acting in his official capacity, which is disregarded by the Court, and the Court takes judicial notice of the original allegation pled in the Complaint that Defendant Williams acted in his individual capacity. USSC Defendants’ demurrer to the 6th cause of action is sustained as to Defendant US Storage Centers, Inc.

As stated above regarding Plaintiff’s 6th cause of action, Plaintiff’s 7th cause of action for conversion in his SAC is contradicted by the allegations in Plaintiff’s Complaint that alleged Williams “acted outside his official capacity.” (Complaint ¶325.) Accordingly, Plaintiff’s allegation in the SAC that Williams “acted in his official capacity” in the cause of action for conversion constitutes a sham pleading, is disregarded by the Court, and the Court takes judicial notice of the original allegation pled in the Complaint. (Owens, 198 Cal.App.3d at pg. 383-384.)

Further, Plaintiff’s failure to allege Defendant Williams’ conduct in his official capacity and the Court’s judicial notice of Defendant Williams alleged conduct “outside his official capacity” precludes Plaintiff from alleging vicarious liability on behalf of US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, in Plaintiff’s conversion claim. Plaintiff’s argument in opposition that his conversion claim against US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, is also based on failure to set or monitor alarms is not sufficient to sustain his cause of action against US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC. (Gonzales v. Personal Storage (1997) 56 Cal.App.4th 464, 477, quoting George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 838 [“Negligence in caring for the goods is not an act of dominion over them such as is necessary to make the bailee liable as a converter.”].)

Accordingly, USSC Defendants’ demurrer to Plaintiff’s 7th cause of action for conversion is sustained without leave to amend as to Defendants US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC.

California courts do not recognize a cause of action for tortious interference. The Court construes Plaintiff’s 8th cause of action as one for intentional interference with prospective economic relations.

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512; CACI 2202.)

Plaintiff fails to allege against Defendant Williams a cause of action for intentional interference with prospective economic advantage. Specifically, Plaintiff fails to allege “an economic relationship that contains the probability of future economic benefit to the plaintiff”—Plaintiff’s payment of rent to entity defendants to maintain storage units is not sufficient to demonstrate the probability of future economic benefit to the plaintiff.

USSC Defendants’ demurrer to Plaintiff’s 8th cause of action is sustained without leave to amend as to Defendant Williams.

“The elements of fraud that will give rise to a 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.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, internal quotations omitted; CACI 1900.) “[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” (RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1102.)

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; CACI 1901.)

Plaintiff fails to allege a cause of action for fraud based on either intentional misrepresentation or concealment because Plaintiff fails to allege facts establishing “how, when, where, to whom, and by what means the representations were tendered” by USSC Defendants as to each representation. Plaintiff fails to allege the source of a duty for USSC Defendants to disclose facts to Plaintiff. With regards to Exhibit 23, Plaintiff fails to allege an affirmative statement constituting a misrepresentation, not an implied assertion.

Accordingly, USSC Defendants’ demurrer to Plaintiff’s 9th cause of action for fraud is sustained without leave to amend as to USSC Defendants.

“California does not recognize a distinct cause of action for gross negligence independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856; CACI 425.) “‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754, internal citations omitted; CACI 425.)

Plaintiff has failed to allege a statutory basis for his 10th cause of action for gross negligence. Plaintiff’s allegation that Civil Code §1714 does not apply, as it is a statute for negligence, not gross negligence. Further, Plaintiff’s allegations do not constitute an extreme departure from the ordinary standard of conduct required by California law. (City of Santa Barbara, 41 Cal.4th at pg. 754.)

Accordingly, USSC Defendants’ demurrer to Plaintiff’s 10th cause of action is sustained without leave to amend as to USSC Defendants.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; CACI 1600.)

Plaintiff fails to allege facts against Defendant Williams in its 12th cause of action and therefore has failed to cure the defects in the FAC identified by this Court. (10/12/22 Minute Order.) Further, Plaintiff’s allegations for IIED based on his 6th and 7th causes of action for trespass and conversion, respectively, against Defendants US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, can no longer be sustained, as the instant ruling dismisses the entity defendants from the claims.

Accordingly, USSC Defendants’ demurrer to Plaintiff’s 12th cause of action is sustained without leave to amend as to USSC Defendants.

“While [Penal Code §496(a)] covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen property.” (Switzer, 35 Cal.App.5th at pg. 126, as modified (May 10, 2019), quoting Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [elements of Penal Code §496 offense stated].)

“A violation of section 496(a) may, by its own terms, relate to property that has been “stolen” or “that has been obtained in any manner constituting theft or extortion.” (Id., quoting Pen. Code §496(a).)

Plaintiff has sufficiently alleged receipt of property against Defendant Williams. USSC Defendants argue Plaintiff’s allegations fail to state a claim for receipt of stolen property because “Plaintiff is contradictorily arguing that Defendant Williams received stolen property from himself as Plaintiff already alleged, Defendant Williams purportedly opened his Unit C94 and ‘permitted [Defendant] Pattillo to enter Unit C94 and remove items from Unit C94.’ (SAC, Para. 374.)” (USSC Defendants Demurrer, pg. 21.) Here, Plaintiff sufficiently alleged Defendant Williams had possession of the stolen property; receipt of the property is not a necessary element of the cause of action. (See Switzer, 35 Cal.App.5th at pg. 126.) However, Plaintiff fails to sufficiently allege receipt of stolen property against Defendants US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, as Defendant Williams was alleged to have not been acting in his official capacity.

Accordingly, USSC Defendants’ demurrer to Plaintiff’s 15th cause of action is overruled as to Defendant Williams, and sustained as to Defendants US Storage Centers, Inc., Westport Properties, Inc., and Hawthorne Mini Venture, LLC, without leave to amend.

Stephen Defendants filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Stephen Defendants filed their reply.

In support of their demurrer to Plaintiff’s 1st (civil conspiracy), 2nd (fraud), 6th (trespass), 7th (conversion), 8th (tortious interference), 12th (IIED), and 15th (receipt of stolen property) causes of action, Stephen Defendants argue each cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. (Notice of Motion Demurrer Stephen, pgs. 3-4.)

Stephen Defendants argue Plaintiff’s 1st cause of action fails to allege Defendant Stephen entered into any agreement with the other defendants, or Defendant Stephen was even aware that any of the other parties intended to commit a wrongful act towards Plaintiff. (Demurrer Stephen, pg. 9.)

Plaintiff sufficiently alleges a cause of action for civil conspiracy against Stephen Defendants. Specifically, Plaintiff alleges Stephen Defendants entered into an agreement with Defendants Shaff, Radell, Kawasaki, Miller, Janson, Evans, and Brejtfus to provide Stephen Defendants with a dealer’s booth at SESCAL 2018. (SAC ¶141.) Plaintiff’s SAC alleges Defendants Shaff, Radell, Kawasaki, Miller, Janson, Evans, and Brejtfus never inquired as to whether Defendant Stephen was selling solen goods at his stand because they had already been notified by Defendant Stephen of the stolen nature of the goods he intended to sell, and Defendant Stephen offered the stolen items for sale to Defendants Shaff, Radell, Kawasaki, Miller, Janson, Evans, and Brejtfus. (SAC ¶¶141, 159, 163, 165.) Further, Plaintiff sufficiently alleges Defendant Stephen cooperated with Defendants Briana and Eric to knowingly sell the allegedly stolen property at Defendant Stephen’s both at SESCAL 2018. (SAC ¶¶141, 159, 163, 165, 672.) Plaintiff sufficiently alleges a meeting of the minds between Stephen Defendants and other Defendants in receipt of stolen property to constitute a cause of action for civil conspiracy.

Accordingly, Stephen Defendants’ demurrer to Plaintiff’s 1st cause of action is overruled.

Plaintiff’s fraud cause of action fails to allege the necessary elements of fraud, and Plaintiff concedes his pleading is deficient. Specifically, Plaintiff’s fraud cause of action fails to allege the material misrepresentation Stephen Defendants concealed from Plaintiff and Stephen Defendants’ duty to disclose the material fact to Plaintiff.

Plaintiff’s opposition does not sufficiently demonstrates that an amendment to his pleading show remedy deficiencies in his cause of action. Plaintiff’s proposed pleading does not allege a legal duty under which Stephen Defendants were obligated to disclose the material fact to Plaintiff.

Accordingly, Stephen Defendants’ demurrer to Plaintiff’s 2nd cause of action is sustained without leave to amend.

Plaintiff sufficiently alleges his 6th cause of action for trespass. Specifically, Plaintiff alleges with specificity the identity of the trespassers as Defendants Williams, Stephen, Briana, and Eric. (SAC ¶373.) The Court disregards Plaintiff’s improper arguments in opposition with reference to Defendants Williams’ and Stephen’s medical and physical conditions.

Accordingly, Stephen Defendants’ demurrer to Plaintiff’s 6th cause of action is overruled.

Plaintiff sufficiently alleges his 7th cause of action for conversion. Specifically, Plaintiff alleges the items that were converted as valuable stamps, philatelic covers, books, stamp albums, stamp collections and items purchased, owned and/or managed by Plaintiff and stored in roughly 200 banker boxes, and supplements the list of items with Exhibit 30. (SAC ¶4, Exh. 30; see SAC ¶393.) Plaintiff sufficiently alleges Stephen Defendants “[took] possession of Plaintiff’s property; (b) preventing Plaintiff from having access to Plaintiff’s property; (c) removing, transporting and/or destroying Plaintiff’s property; (d) refusing to return Plaintiff’s property after Plaintiff demanded its return.” (SAC ¶¶ 393, 435.)

Accordingly, Stephen Defendants’ demurrer to Plaintiff’s 7th cause of action is overruled.

Plaintiff failed to allege a cause of action for intentional interference with prospective economic relations against Stephen Defendants. Specifically, Plaintiff alleges that Defendant Stephen told Plaintiff he was able to remotely participate in the Harmer-Schau auction. (SAC ¶495.) Harmer-Schau Auction House of Pentaluma, CA, is the only third-party Plaintiff alleges with specificity as having a relationship with Plaintiff with the probability of future economic benefit to plaintiff; Plaintiff’s allegation concedes that Defendant Stephen did not actually disrupt Plaintiff’s relationship with third-party Harmer-Schau because he was able to participate in the January 2019 auction remotely and have the lots he won shipped to him. (See SAC ¶497.) Plaintiff’s allegations that he was unable to attend various stamp shows, such as INTURPEX, SESCAL, ARIPEX, FRESPEX, SANDICAL, Poway, or WESTPEX does not set forth an economic relationship with a third party, nor disruption of a relationship. (See SAC ¶¶499, 500.)

Plaintiff has not sufficiently demonstrated that he can amend this cause of action. Accordingly, Stephen Defendants’ demurrer to Plaintiff’s 8th cause of action is sustained without leave to amend.

Plaintiff fails to allege a cause of action for IIED against Defendant Stephen Defendant. Specifically, Plaintiff fails to allege conduct by Defendant Stephen that can be characterized as “beyond all bounds of decency tolerated by society.” (Cervantez, 24 Cal.3d at pg. 593.) Plaintiff does not provide a sufficient showing to grant his request for leave to amend the 12th cause of action, stating only that he believes the claim “requires amendments for clarification.” (Plaintiff’s Omnibus Opposition Demurrers, pg. 10.)

Accordingly, Stephen Defendants’ demurrer to the 12th cause of action is sustained without leave to amend as to Defendant Stephen.

Plaintiff sufficiently alleges a cause of action for receipt of stolen property. Stephen Defendants’ demurrer on the basis that Plaintiff lacks standing the bring the cause of action fails for the same reasons stated above.

Accordingly, Stephen Defendants’ demurrer to the 15th cause of action is overruled.

Defendant Briana filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Defendant Briana filed her reply.

In support of her demurrer to Plaintiff’s 6th (trespass), 7th (conversion), and 15th (receipt of stolen property) causes of action, Defendant Briana argues each cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. (Notice of Motion Demurrer Briana, pg. 2.)

Accordingly, Defendant Briana’s demurrer to Plaintiff’s 6th cause of action is overruled.

Plaintiff sufficiently alleges his 7th cause of action for conversion. Specifically, Plaintiff alleges the items that were converted as valuable stamps, philatelic covers, books, stamp albums, stamp collections and items purchased, owned and/or managed by Plaintiff and stored in roughly 200 banker boxes, and supplements the list of items with Exhibit 30. (SAC ¶4, Exh. 30; see SAC ¶393.) Plaintiff sufficiently alleges Defendant Briana “[took] possession of Plaintiff’s property; (b) preventing Plaintiff from having access to Plaintiff’s property; (c) removing, transporting and/or destroying Plaintiff’s property; (d) refusing to return Plaintiff’s property after Plaintiff demanded its return.” (SAC ¶¶ 393, 435, 437.)

Accordingly, Defendant Briana’s demurrer to Plaintiff’s 7th cause of action is overruled.

Plaintiff sufficiently alleges a cause of action for receipt of stolen property. Defendant Briana’s demurrer on the basis that Plaintiff lacks standing the bring the cause of action fails for the same reasons stated above.

Accordingly, Defendant Briana’s demurrer to the 15th cause of action is overruled.

Defendant Eric filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Defendant Eric filed his reply.

In support of his demurrer to Plaintiff’s 6th (trespass), 7th (conversion), and 15th (receipt of stolen property) causes of action, Defendant Eric argues each cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. (Notice of Motion Demurrer Eric, pg. 2.)

Accordingly, Defendant Eric’s demurrer to Plaintiff’s 6th cause of action is overruled.

Plaintiff sufficiently alleges his 7th cause of action for conversion. Specifically, Plaintiff alleges the items that were converted as valuable stamps, philatelic covers, books, stamp albums, stamp collections and items purchased, owned and/or managed by Plaintiff and stored in roughly 200 banker boxes, and supplements the list of items with Exhibit 30. (SAC ¶4, Exh. 30; see SAC ¶393.) Plaintiff sufficiently alleges Defendant Eric “[took] possession of Plaintiff’s property; (b) preventing Plaintiff from having access to Plaintiff’s property; (c) removing, transporting and/or destroying Plaintiff’s property; (d) refusing to return Plaintiff’s property after Plaintiff demanded its return.” (SAC ¶¶ 393, 435, 437.)

Accordingly, Defendant Eric’s demurrer to Plaintiff’s 7th cause of action is overruled.

Plaintiff sufficiently alleges a cause of action for receipt of stolen property. Defendant Eric’s demurrer on the basis that Plaintiff lacks standing the bring the cause of action fails for the same reasons stated above.

Accordingly, Defendant Eric’s demurrer to the 15th cause of action is overruled.

E. Pereira Defendants’, USSC Defendants’, Stephen Defendants’, Briana’s, and Eric’s Motion to Strike

In light of the Court’s ruling on moving Defendants’ demurrers, moving Defendants’ motions to strike are moot as to their causes of action. However, pursuant to C.C.P. §436, the Court, sua sponte, strikes Plaintiff’s allegations as to Defendants Westport Properties, Inc., and Hawthorne Mini Venture, LLC, the 6th cause of action of his SAC.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (C.C.P. §437.) Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” [Citations.]].)

“A court is not required to tolerate purported amended complaint that fails to amend previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative or orderly judicial administration.” (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331, quoting Neal v. Bank of America National Trust & Savings Association (1949) 93 Cal.App.2d 678, 682-683.) A motion to strike is properly granted where a plaintiff continues to plead the same allegations to which prior demurrers have been sustained, without attempt to cure. (Kronsberg v. Wershow (1965) 238 Cal.App.2d 170, 172-173; Taliaferro v. Prettner (1955) 135 Cal.App.2d 157, 159.)

This court, by its own motion strikes Plaintiff’s allegations in his 6th cause of action in the SAC as exceeding the scope of this Court’s granting of leave to amend. This Court sustained USSC Defendants’ demurrer to Plaintiff’s 6th cause of action in his FAC without leave to amend as to Defendants Westport Properties, Inc., and Hawthorne Mini Venture, LLC. Accordingly, the 6th cause of action in Plaintiff’s SAC is improperly pled with regards to Defendants Westport Properties, Inc., and Hawthorne Mini Venture, LLC, in violation of this Court’s order and must be stricken. (10/12/22 Ruling; C.C.P. §436(b).)

Accordingly, this court, sua sponte, strikes Plaintiff’s 6th cause of action of his SAC as to Defendants Westport Properties, Inc., and Hawthorne Mini Venture, LLC.

[1] Motions to strike and demurrers should be filed as separate documents. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶7:162.1.)

[2] Demurrers to Plaintiff’s 13th (Burglary) and 14th (Grand Theft) causes of action were previously sustained without leave to amend. (10/12/22 Minute Order, pg. 3.)

[3] Pereira Defendants’ moving papers make frequent reference to “Perilla,” which the Court assumes is a typo referring to Pereira.