Judge Ralph C. Hofer, Case Number: 23GDCV00103, Date: 2023-10-20 Tentative Ruling

Plaintiff Lorraine Rhone alleges that in January of 2022 plaintiff entered into an agreement with defendant Redondo Van and Storage, Inc. to move plaintiff’s household goods from a two-bedroom upstairs apartment in Glendale to the city of San Pedro. Plaintiff was quoted a price of $2,400 to $3,200, with four men.

Plaintiff alleges that instead of four men, five men arrived not prepared to crate a beveled glass top dining table and a glass/brass coffee table, without containers for artwork or lamps, and without adequate wardrobe containers. Plaintiff alleges that defendant forced plaintiff to initial for overtime, left items behind, damaged and stole items from plaintiff and refused to return to complete the move.

Plaintiff alleges that upon arrival, defendant did not give plaintiff documentation required by the State of California, Bureau of Household Goods and Services regarding movers of household goods. Plaintiff alleges that she requested extra insurance but was informed there would be an extra charge. Plaintiff also alleges that less than two hours into the move, plaintiff was approached by defendant that the movers could not complete the move and would have to come back another day unless plaintiff agreed to pay overtime. Plaintiff challenged this request. The lead mover called the office to see what dates were available to return, with the next date being in February, so that plaintiff was forced to sign to pay overtime.

The operative complaint, the Second Amended Complaint, alleges that the movers left furniture behind, then met plaintiff at the new residence, presenting her with a bill of $5,762.50, and, when plaintiff inquired about when the movers would return to retrieve the remaining items, the lead worker laughed at plaintiff. Plaintiff issued a check for $5,000, and requested a copy of the bill, which was refused.

On January 18, 2022, the twin sleigh bed collapsed, causing plaintiff injury and physical pain. That same day plaintiff called defendant to inquire about the remaining items, and the fall from the bed not properly assembled, and was told a crew would be sent out the following morning, on January 19, 2022, to pick up the remaining items and reassemble the bed.

On the afternoon of January 18, 2022, plaintiff received a phone call from defendant’s office manager in which he stated, “We’re not coming,” and hung up. Plaintiff alleges that this left her shaken, broken down, and crying, as she is elderly and disabled, and plaintiff is now left with the task to complete the move by renting a U-Haul and hiring workers to complete what defendants refused to complete. Plaintiff in response to the demeaning telephone call from defendant telephoned the bank and placed a stop payment on the check. Plaintiff was unaware that without plaintiff’s consent defendant went into plaintiff’s account to take the remaining $762.50.

The SAC also alleges that plaintiff was charged thirteen hours, of which five hours were overtime, and defendant did not deduct the two-hour lunch break, and that defendant also charged 4 and a half hours for an additional two men.

Defendant Transguard Insurance Company of America filed demurrers in response to the original complaint and the FAC. On October 20, 2023, a demurrer to the FAC by that defendant was sustained with leave to amend. On November 27, 2023, plaintiff filed the SAC, which no longer names Transguard Insurance, but continues to allege claims against defendant Redondo Van & Storage, Inc.

Moving defendant Defendant Redondo Van & Storage, Inc. filed a demurrer to the FAC, which was noticed to be heard on December 1, 2023, and was rendered moot by the filing of the SAC which was filed prior to the hearing on that demurrer. Defendant Redondo Van & Storage, Inc. now challenges the sufficiency of the Second Amended Complaint.

Defendant argues that it is not clear what claim plaintiff intends to assert under the first, untitled, cause of action, which appears to simply provide a factual background concerning plaintiff’s initial interactions with defendant.

Permitting demurrer for uncertainty is based on the policy which favors parties having notice of the liability alleged, and the pleading must be sufficiently certain to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Court (1981, 2nd Dist.) 117 Cal.App.3d 1, 6.

With respect to failure to state facts sufficient to state a cause of action, the court examines the facts alleged in order to determine whether they are adequate to state a cause of action. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 38-39. The court treats the demurrer “as admitting all material facts properly pleaded,” and gives the complaint “a reasonable interpretation, reading it as a whole and its parts in their context.” Quelimane, at 38, citations omitted.

The cause of action alleges that plaintiff was given a verbal quote regarding the cost of the move, that plaintiff was not given documentation required concerning the move, and that there was some request for extra insurance, for which an extra sum was said would be charged, which plaintiff evidently accepted. [SAC, First Cause of Action].

It is not clear if plaintiff is alleging that she was charged more than the quoted amount, in breach of some oral contract, that the allege documentation was required and the failure to provide it violated the statutory requirements in certain particulars, or that there is some actionable claim for charging the extra rate for extra insurance coverage. As to this cause of action there is no allegation, even generally, that defendant’s actions caused plaintiff to suffer compensable damages. This situation is the rare case where the cause of action is not only uncertain, but also fails to state facts sufficient to state a cognizable cause of action.

This confusion is compounded by plaintiff’s failure to comply with CRC Rule 2.112, which failure has been pointed out in connection with a previous demurrer brought by a co-defendant, which plaintiff has nevertheless failed to remedy. CRC Rule 2.112 provides:

Plaintiff in the opposition appears to argue that this cause of action is based on an oral contract to move plaintiff’s household goods. It is not explained how the nature of the claim is not uncertain, or how each element of such a cause of action is alleged.

Defendant argues that “Forced Overtime” is not a recognized cause of action under California law and that defendant cannot ascertain the legal theories against it. Defendant argues that while apparently plaintiff was unhappy with the time and labor required for the subject move, and the response to her challenge to the need for overtime, this is not a legal basis for civil relief.

Plaintiff argues that plaintiff did not hire defendant to pack plaintiff’s belongings, so that defendant did not spend any time packing, that the workers came unprepared to move plaintiff’s belongings, that defendants approached plaintiff saying they could not complete the move without paying overtime, and that the moving crew took a two-hour lunch break.

This assertion appears to be an argument that the cause of action is for somehow overcharging plaintiff for contracted services, which could possibly be a breach of contract claim. This is not clearly stated in the cause of action. In addition, each element of such a cause of action is not alleged, such as causation and damages. [SAC, Second Cause of Action].

To plead a cause of action for breach of contract, plaintiff must plead the following elements: Contract formed, and terms alleged verbatim or according to legal effect; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.

Defendant argues that the pleading fails to sufficiently allege the terms of the alleged contract, set forth the pertinent terms verbatim, or attach a copy of the alleged contract. Defendant also argues that the SAC fails to sufficiently allege performance by plaintiff of the obligation to pay for defendant’s services, as the SAC alleges that plaintiff stopped payment on the check issued by plaintiff. Defendant also argues that plaintiff has failed to allege that plaintiff sustained damages resulting from any alleged breach.

The cause of action in the SAC is confusing with respect to whether it is based on the original contact for moving services, not mentioned in the cause of action, or upon some later alleged contract based on some promise to send a crew to move the items remaining in the original residence and reassemble a bed. Again, the cause of action is ambiguous in this respect. In any case, the cause of action does not allege that any of the discernable terms of agreement set forth in the cause of action were in fact breached, that plaintiff performed or was excused from performance, or that any breach caused damage to plaintiff.

The opposition argues that there was an oral agreement to move household goods, that plaintiff made partial payment, and that there was evidently a subsequent oral agreement concerning sending a crew to pick up remaining items, which was breached when defendant’s representative informed plaintiff the crew was not coming.

Much of this is not clearly alleged in the pleading, and, in any case, the specific contract, or successive oral contract, or both, are not sufficiently alleged in terms of the terms agreed to and breached, and the cause of action fails to sufficiently allege plaintiff’s performance or excuse for non-performance, causation or damages. The demurrer accordingly is sustained.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.

(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.

(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.

“(a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney's fees and costs. The term "costs" includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.”

Defendant also relies on case law under which it is recognized that because elder abuse is a statutory cause of action, it must be alleged with factual particularity. See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

The cause of action here alleges that plaintiff received a phone call stating that “We’re not coming,” which left plaintiff shaking, broken down and crying, leaving her with the task of completing the move defendant refused to complete, and that defendant went into plaintiff’s bank account without plaintiff’s consent to take the remaining $762.50, evidently the amount due on to defendant under the moving agreement. [SAC, Fourth Cause of Action].

It is not alleged which provisions of the statutory cause of action are invoked, the cause of action is not alleged with factual particularity, and it is not clearly alleged that plaintiff is an elder, in effect, age 65 or older, subject to protection under the act.

Plaintiff in opposition argues that plaintiff is a single 83-year-old disabled woman, which is not alleged in the SAC. Plaintiff also argues that, due to defendant refusing to complete the move, plaintiff’s niece, who has medical issues, had to travel from Orange County to help retrieve plaintiff’s artwork, and plaintiff was forced to carry clothing by going up and down stairs. These allegations do not appear to pertain to allegations of financial elder abuse, and these allegations are for the most part not alleged in the pleadings. The demurrer is sustained.

To state a cause of action for fraud, plaintiff must plead the following elements: A false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose, or a promise made without intent to perform; defendant’s knowledge of the falsity; defendant’s intent to induce another into relying on the representation; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1, 7-12.

Generally, in a fraud cause of action, a plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation. Stansfield v. Starkey (1990, 2nd Dist.) 220 Cal.App.3d 59, 73, citation omitted. When such a claim is made against a corporation, the level of specificity required is even higher. Under Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, in fraud complaints against a corporation, a plaintiff must allege all of the following:

“Plaintiff was charged with thirteen (13) hours of work of which five (5) hours were overtime. Defendant did not deduct the two (2) hour lunch break. Also Defendant charged four and one-half hours (4 ½) for an additional two men. Defendant could not and would not complete the move.”

These allegations fail to allege any false representation, concealment, or promise without intent to perform, knowledge of falsity, reasonable reliance, or damages to plaintiff actually caused by any alleged fraud. The claim fails to allege with particularity who said what to whom, what was said, where, when, by what means, and any authority of the speaker to speak on behalf of the corporate defendant, Redondo Van & Storage, Inc.

Plaintiff in opposition indicates that defendant refused to complete the move, charged plaintiff improperly, and refused to give plaintiff the final bill. Plaintiff also indicates that plaintiff’s grandson took a photocopy of the bill along with the check. It is not clear how a photocopy of the bill could have been made if defendant refused to give a bill to plaintiff. In any case, plaintiff fails to explain how these facts support a claim of fraud. The demurrer is sustained.

Defendant argues that theft is a crime governed by the California Penal Code. Defendant also argues that to the extent the cause of action seeks to assert a civil claim for conversion, the cause of action is insufficient. Defendant argues that the pleading fails to set forth factual allegations concerning any items of property plaintiff alleges defendant “stole,” the circumstances thereof or why plaintiff believes that any alleged theft occurred.

To state a cause of action for conversion, plaintiff must allege the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.

The pleading does not allege each of these elements but alleges broadly that “many items were stolen from Plaintiff.” [SAC, sixth cause of action]. It is not clear that plaintiff owned or had the right to possession of any particular property, and plaintiff fails to allege that she suffered damages.

Plaintiff in opposition identifies specific boxes involved in the move and their contents and indicates that the items never showed up at the new residence. Plaintiff also attaches to the opposition copies of a police report and a complaint form with the State Department of Consumer Affairs with details concerning her allegations that items were missing. [Opposition, Exs. C, D]. These facts are not alleged in the pleading, and the documents are not attached to the SAC. The demurrer is sustained.

Defendant requests that plaintiff has the burden to demonstrate there is a reasonable possibility that the defects in the pleading can be cured by further amendment, but plaintiff cannot establish some of her claims and others are lacking in factual allegations necessary to constitute a claim for relief.

Where a complaint is successfully challenged on a demurrer, it is plaintiff’s burden to demonstrate how the complaint might by amended to cure it of the defect. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302. Where a plaintiff will be unable to correct the flaws in a pleading, leave to amend should be denied. La Vista Cemetery Association v. American Savings & Loan Association. (1970, 2nd Dist.) 12 Cal.App.3d 365, 369.

However, the court recognizes that this is the first demurrer by the moving defendant to have come to a hearing, that the previous demurer brought by defendant’s then co-defendant was brought on different grounds, and that a major defect in the pleading is a lack of details, and plaintiff has referred to new facts and exhibits in the opposition which can be added to the pleading on amendment. One final opportunity to amend is permitted.

Demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND on the grounds the cause of action is uncertain and fails to allege facts sufficient to state a cognizable cause of action. Plaintiff on amendment is ordered to fully comply with CRC Rule 2.112, and to clearly allege the nature of the first cause of action, e.g., “for fraud,” and plead each element of a legally recognized cause of action. To the extent the opposition appears to argue that the cause of action is a claim for breach of oral contract, all elements of such a claim must be appropriately alleged.

Demurrer to the second cause of action for forced overtime is SUSTAINED WITH LEAVE TO AMEND on the grounds it is not clear that forced overtime is a recognized cause of action. To the extent the opposition appears to argue that the cause of action is one for overcharging for contracted services, all elements of a breach of contract claim are not alleged.

Demurrer to the third cause of action for breach of contract is SUSTAINED WITH LEAVE TO AMEND on the grounds the cause of action is confusing with respect to on what agreement it is based, fails to sufficiently allege the terms of any agreement or agreements, fails to allege that any terms of the agreement were breached, and fails to allege that any such breach caused damage to plaintiff. On amendment, if more than one contract is sued upon, plaintiff must separately allege the cause of action as to each alleged contract, preferably in separate causes of action, which each clearly and sufficiently state each element of a breach of contract claim.

Demurrer to fourth cause of action for financial and emotional elder abuse is SUSTAINED WITH LEAVE TO AMEND on the grounds plaintiff fails to identify the statute or statutes upon which plaintiff relies, and, to the extent plaintiff intends to state a claim for financial elder abuse, the cause of action fails to allege sufficient facts to allege that plaintiff is an elder or dependent adult subject to the statute, and fails to allege with factual particularity the basis for the claim.

Demurrer to the fifth cause of action for fraud is SUSTAINED WITH LEAVE TO AMEND on the ground the cause of action fails to clearly state each element of a fraud cause of action, as plaintiff fails to allege any false representation, concealment, or promise without intent to perform, fails to allege that defendant had knowledge of falsity, fails to allege plaintiff’s reasonable reliance on any representation, concealment, or promise, and fails to allege damages to plaintiff caused by any alleged fraud. In addition, the demurrer is sustained on the ground the cause of action is not alleged with sufficient specificity. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation); See also Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (in fraud complaints against a corporation, a plaintiff must allege all of the following: the names of the persons who made the misrepresentation; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written).

Demurrer to sixth cause of action for theft is SUSTAINED WITH LEAVE TO AMEND. Plaintiff has failed to demonstrate that there is a recognized civil cause of action for “theft.” Plaintiff is permitted leave to amend only to allege a cause of action for conversion, if possible. Plaintiff must on amendment sufficiently allege each element of a civil conversion cause of action, and the court expects that plaintiff will also include with any amended pleading the documents attached to the opposition in support of this cause of action.

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