Judge: Robert S. Draper, Case: 22STCV36546, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCV36546    Hearing Date: March 6, 2023    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendants RHS Surani Inc. and Salima Surani’s Demurrer to the Complaint is SUSTAINED.

As no Opposition has been filed, the Court will consider whether leave to amend should be granted at hearing.

FACTUAL BACKGROUND

This is an action for conversion. The Complaint alleges as follows.

Plaintiff John Brosnan (“Plaintiff”) and defendants RHS Surani Inc. (“RHS”) and Salima Surani (“Surani” and together, “Defendants”) rent commercial space in neighboring properties. (Compl. ¶ 13.) On May 26, 2019, Plaintiff parked his trailer in a neighboring parking lot within view of Defendants’ security cameras. (Compl. ¶ 14.) Surani called a contractor doing work on the Property and informed him that she was uncomfortable with the trailer in the property’s parking lot. (Compl. ¶ 14.) The contractor informed Surani that the trailer was not parked in her property’s lot. (Ibid.) Surani entered the trailer and began moving things around. (Ibid.) While rummaging in the trailer, Surani caused the trailer to be moved to her property’s parking lot. (Ibid.) Surani then had the trailer towed. (Ibid.) When Plaintiff went to recover the trailer, he discovered that its contents were gone. (Compl. ¶ 16.)

Plaintiff alleges that the vehicle was towed in violation of California Vehicle Code § 22658(2). (Compl. ¶ 18.)

PROCEDURAL HISTORY

On November 17, 2022, Plaintiff filed the Complaint asserting three causes of action:

1.    Conversion;

2.    Fraud; and,

3.    Tort of Another.

On January 23, 2023, the case was reassigned to the instant Department 78.

On January 25, 2023, Defendants filed an Anti-SLAPP Motion to Strike. That motion is set to be heard on March 23, 2023.

Also on January 25, 2023, Defendants filed the instant Demurrer to the Complaint.

As of March 2, 2023, no Opposition has been filed. Any Opposition was due by February 27, 2023.

DISCUSSION

I.                DEMURRER

Defendants demur to all causes of action arguing that Plaintiff fails to allege facts sufficient to state a cause of action, and that the Complaint is uncertain.

A.   Failure to Allege Facts Sufficient to State a Cause of Action

First, Defendants argue that Plaintiff fails to allege facts sufficient to state any cause of action.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

1.    First Cause of Action - Conversion

Defendants demur to the First Cause of Action for Conversion.

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  

“‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’” (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 747 (quoting Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1329).) “‘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.’” (Id.) 

Here, Defendants contend that Plaintiff fails to distinguish whether it was RHS, Surani, or the towing company that improperly disposed of Plaintiff’s personal property. Additionally, Defendants argue that the Complaint fails to describe the property in question, or assert Plaintiff’s ownership of it.

Defendants’ arguments are well taken. While the Complaint alleges that Surani improperly had the trailer towed, there are no allegations stating that she personally removed any property from the trailer. Additionally, the Complaint fails to allege that Surani intentionally deprived Plaintiff of any of his property.

As to RHS, the Complaint does not allege any action, lawful or unlawful, on its part.

Accordingly, Defendants’ Demurrer to the First Cause of Action is SUSTAINED.

2.    Second Cause of Action - Fraud

Next, Defendants demur to the Second Cause of Action for fraud.

The elements of fraud 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.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  

Here, Defendants note that the only allegations supporting Plaintiff’s Fraud Cause of Action are that Defendants wrongfully reported Plaintiff’s trailer to the LAPD. Defendants contend this conversation is privileged, and that even were it not, Plaintiff fails to allege any facts constituting fraud.

Plaintiff alleges that “Salima lied to the LAPS when she informed the LAPD that the Trailer rolled into the PPL when Salima entered the trailer.” (Compl. ¶ 30.)

Plaintiff fails to show how he relied upon this alleged misrepresentation.

Moreover, as Defendants note, Civil Code section 47 “gives all persons the right to report crimes to the police, the local prosecutor, or an appropriate regulatory agency, even if the report is made in bad faith.” (Cabesuela v. Browning-Ferris Industries of California, Inc. (1998) 68 Cal.App.4^th 867, 875.) Accordingly, the allegations constituting Plaintiffs’ Second Cause of Action for Fraud are privileged.

Defendants’ Demurrer to the Second Cause of Action is SUSTAINED.

3.    Third Cause of Action – Tort of Another

Next, Defendants demur to the Third Cause of Action for Tort of Another.

“The tort of another doctrine holds that ‘[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.’” (Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1337 (quoting Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620).) “The tort of another doctrine is not really an exception to the American rule, but simply ‘an application of the usual measure of tort damages.’” (Id. (quoting Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310).) “The tort of another doctrine does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 80.) This doctrine “does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants.” (Id. (citing Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 57).) “[A] party seeking to recover attorney fees and costs as tort damages ordinarily should plead and prove them to the fact-finder . . . .” (Id. at 79.)  

Here, Defendants argue that Plaintiff’s Third Cause of Action is nonsensical, as the Complaint does not address any third party. Defendants’ argument is well taken.

Accordingly, Defendants’ Demurrer to the Third Cause of Action is SUSTAINED.

B.   UNCERTAINTY

Next, Defendants argue that the Complaint is uncertain as to RHS.

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (See Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “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.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)

Here, Defendants argue that the Complaint is too uncertain for RHS to be able to respond. Defendants notes that the Complaint refers to Defendants collectively without describing which Defendant was responsible for which action. Additionally, Defendants note that the Complaint does not contain any allegations as to RHS other than that it exists.

While Defendants’ Demurrer has already been sustained due to failure to allege sufficient facts, the Court notes that the Complaint is also uncertain as to RHS.

Accordingly, Defendants’ Demurrer is SUSTAINED as to RHS on this ground. 

C.   LEAVE TO AMEND

Finally, Defendants argue that leave to amend should not be granted.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Here, Defendants note that in previous cases, Plaintiff has filed substantially similar Complaints, but that the facts have been altered throughout the filings. Defendants contend that the Court should not grant leave to amend, as Plaintiff has demonstrated his inability to successfully allege a cause of action based on this incident.

As Plaintiff has not filed an Opposition, the Court has not considered any argument as to leave to amend. Accordingly, the Court will determine whether leave to amend should be granted at hearing.

DATED: March 6, 2023

__________________________

Hon. Robert S. Draper

Judge of the Superior Court