Judge Stephen Morgan, Case 23AVCV00066 2023-03-28 Tentative Ruling

This is an action stemming from the lease of real property located at 46645 60th St. West, Lancaster, CA 93536 (“the Property”). Plaintiff Leilani L. Antoine (“Plaintiff”) alleges that Defendants Charles E. Mosman (“Charles”[1]); Sandra Mosman (“Sandra”); Mosman’s Country Steakhouse & Bar, Zubie Enterprises, Inc. (“Zubie Enterprises”); and Charles E. Mosman DBA Mosman’s Town & Country Carpet & Construction (“Mosman’s Town & Country Carpet & Construction” and collectively “Defendants”) are former commercial tenants of hers. Plaintiff further alleges damages stemming from their time as her tenants.

On January 18, 2023, Plaintiff filed her Complaint alleging once cause of action for General Negligence and four causes of action labelled “Intentional Tort.”

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿ ¿¿¿¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿ ¿¿¿¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿¿ ¿

Standard for Motion to Strike – The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that the Moving Party has complied with the meet and confer requirement. (Decl. Karen M. Stepanyan ¶ 5.)

Request for Judicial Notice – Plaintiff requests judicial notice of five documents relating to criminal case MCO28137. The Court denies judicial notice as these documents are not relevant to the disposition of this motion.

Plaintiff’s Complaint, using forms approved by the Judicial Council of California, does not label her causes of action. Plaintiff repeats several facts within the various Intentional Torts causes of action. “The law respects form less than substance.” (Cal. Civ. Code § 3528.) It appears from the substance of Plaintiff’s Complaint that she is alleging: Intentional Infliction of Emotional Distress (“IIED”), Property Damage, Conversion, and a Violation of Cal. Pen. Code § 496.

Defense counsel, Karen M. Stephanyan (“Stephanyan”) interprets the Complaint similarly. For the purposes of this Demurrer, Stephanyan has labelled the causes of action as follows: (1) Second Cause of Action – IIED, (2) Third Cause of Action – Property Damage, (3) Fourth Cause of Action – Conversion, and (4) Fifth Cause of Action – Violation of Cal. Pen. Code § 496. Plaintiff labels her causes of action in her Opposition the same.

Defendants present that IIED cause of action fails as Plaintiff’s allegations are vague. Specifically, Defendants present that Plaintiff argues that Defendants made unauthorized alterations to her commercial property and that when Defendants were no longer in possession of the property, they left it in disarray and stole items, and when Plaintiff inquired about these events Defendants “yelled” and “cursed” at her. (See Complaint, 2nd COA, ¶¶ 2-4.) Defendants argue that the statements alone do not give rise to liability; that Plaintiff has failed to show that Defendants are guilty of extreme and outrageous conduct that was personally directed at Plaintiff; there are insufficient facts to indicate a heightened degree of outrageousness; and the Complaint fails to present specific statements, the identity of those yelling and cursing, and it is unclear whether such yelling and cursing could be considered insults.

In her Opposition, Plaintiff cites to her Complaint and seeks to clarify each allegation in the Complaint. For example, Plaintiff cites “When Plaintiff would inquire into these events in-person or telephonically Defendants, and each of them, would curse and yell at the elderly Plaintiff, who is of Vietnamese decent. Several times Defendants conduct escalated into an assault upon the elderly Plaintiff who feared for her personal safety and would hurriedly leave the property[]” (Complaint, 2nd COA, ¶ 4) then states who called acted, and what was said.

Plaintiff’s arguments are inappropriate for a Demurrer. In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿Plaintiff is attempting to present new information that is not incorporated into her Complaint.

Defendants Reply reiterates the standard for IIED. Defendants present that even accepting the allegations of the Complaint as true Plaintiffs’ allegations fail to meet the requirements for stating a cause of action for IIED. Defendants believe that (1) alterations to a commercial property, whether in compliance with building standards or not, cannot be regarded as outrageous conduct; and (2) , an ordinary emotional squabble between a landlord (Plaintiff) and its former tenant (Defendants) regarding the scope of use of a commercial property can hardly be called atrocious so as to warrant liability under IIED.

“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.)

4. When Plaintiff would enquire [sic] into these events in-person or telephonically Defendants, and each of them, would curse and yell at the elderly Plaintiff, who is of Vietnamese decent. Several times Defendants conduct escalated into an assault upon the elderly Plaintiff who feared for her personal safety and would hurriedly leave the property.

6. Defendants, and each of them, extreme and outrageous conduct at all times mentined [sic] herein intentionally or recklessly caused severe emotional distress to Plaintiff.

7. Plaintiff has suffered severe emotional distress as a direct and proximate cause of Defendants [sic] conduct and acts at all times mentioned herein.

9. Defendants, and each of them, set out to intentionally cause Plaintiff extreme emotional distress in destroying, stealing, taking, converting and removing Plaintiffs [sic] property at all times mentioned herein.

10. Defendants, and each of them, set out to intentionally cause Plaintiff extreme emotional distress in dumping environmental waste on Plaintiffs [sic] real property at all times mentioned herein.

12. Defendants, and each of them, conduct was oppressive and maliciously directed at Plaintiff in order to Cause her severe emotional distress and fear and Plaintiff should be awarded punitive damages to punish and deter Defendants, and each of them.

Plaintiff’s Complaint also states: “Defendants, and all of them, negligently and intentionally made unauthorized alterations to Plaintiffs commercial property located at 46645 60th St. West, Lancaster, CA 93536 at all times mentioned herein. Defendants, and each of them, failed to obtain landlord's approval or obtain any building permits or complied with any building standards at all times mentioned herein.” (Complaint, 2nd COA, ¶¶ 2-3.) The Court believes that this is context for the cursing and yelling which makes up a component of the IIED claim.

It appears that Plaintiff is alleging three types of conduct that make up the IIED claim: (1) cursing and yelling; (2) destroying, stealing, taking, converting, and removing Plaintiff’s property; and (3) dumping environmental waste on Plaintiff’s property.

Regarding yelling and cursing, “[l]iability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Rest.2d Torts, § 46, com. d.)’ (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122 [252 Cal. Rptr. 122, 762 P.2d 46], overruled on another ground in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 853, fn. 19; see Intel. Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1347 [1 Cal.Rptr. 3d 32, 71 P.3d 296] [harassing e-mails might constitute intentional infliction of emotional distress]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809 [52 Cal. Rptr. 3d 376] [anonymous e-mails graphically threatening physical harm insufficient]; see Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222, 229–230 [192 Cal.Rptr. 492] [threats of harm or death to plaintiff and his family for failure to sign new union agreement sufficiently “outrageous”].)” (Hughes v. Pair, supra, 46 Cal.4th at 1051.) “Severe emotional distress means ‘ “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” ’ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) There is no presentation of what the yelling and cursing is composed of within the Complaint. Alone, yelling and cursing does not rise to the level of an enduring quality that no reasonable person in civilized society should be expected to endure.

Regarding the property claims, Defendants only present that the Complaint fails to establish that that Defendants are guilty of extreme and outrageous conduct that was personally directed at her. The Court notes that there is an argument that no information is given as to the scale of the property alteration and whether Plaintiff was present at the time of the alteration. As mentioned, ante, the Court believes the alteration is the context for the yelling and cursing analyzed above.

The Court believes that Defendants argument is persuasive. The Complaint fails to allege that the destroying, stealing, taking, converting and removing Plaintiff’s property and dumping environmental waste on Plaintiff’s property was outrageous. Further, there is no connection as to how the alleged conduct was a substantial factor in causing Plaintiff’s severe emotional distress. From the allegations provided, the Court cannot determine whether the conduct at issue is in fact extreme and outrageous. (See Plotnik v. Meihaus (2012) 208Cal.App.4th 1590, 1614 [“[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”].)

Defendant presents that Plaintiff’s Third Cause of Action for Property Damage is uncertain as it is not clear what legal theory Plaintiff claims damage to her property. Defendant presents that such a claim for property damage can stem from trespass or encroachment or a breach of contractual duty.

Plaintiff’s Complaint lists actions taken by Defendants that Plaintiff believes constitutes property damage. Specifically, Plaintiff alleges Defendants engaged in the following action: unauthorized alterations to the Property, failure to obtain building permits for the alterations, failure to comply with building standards, failure to attain Plaintiff’s express written or oral approval for improvements, Charles’ commitment of a sexual battery at the Property, burying of concrete and brick throughout the Property, illegal subletting, tearing down of the existing enclosed restaurant patio, building of an illegal patio, illegal encroachment of neighboring property, tearing down of a vintage fireplace, and removing a decorative vintage horse wagon. (Complaint, 3rd COA.)

Defendants contend that Plaintiff’s argument does not shed light on the issue of authority as damage to Plaintiff’s personal and real property is only one element of a cause of action and, without stating what cause of action is being asserted and providing sufficient facts supporting each element thereof, a defendant cannot know what is being claimed and how to defend the action. Defendants also present that Plaintiffs statement that “Defendants obliterated Plaintiff’s personal and real property, they did not trespass it[]” makes the cause of action even more confusing. Finally, Defendants present that an alternate cause of action is breach of contract, but there are no alleged facts to support such a claim.

Plaintiff’s Opposition provides no insight as to what tort Plaintiff is proceeding under.

Plaintiff cites: “CACI 3903J (Personal Property) and CACI 3903F (Real Property). Plaintiff Leilani L. Antoine has succinctly pled "Property Damage" as Plaintiff's 3d [sic] cause of action because it involves both. Defendants obliterated Plaintiff s personal and real property, [sic] they did not trespass it.” (Opposition 6:21-23.)

CACI 3903J is the jury instructions to calculate economic damages stemming from damage to personal property. This does not provide any insight to Plaintiff’s underlying tort. As such, Plaintiff’s Opposition provides no insight except that the tort alleged is not trespass.

Plaintiff’s claim is still uncertain. The complaint must be alleged with sufficient certainty to “ ‘acquaint [the] defendant with what he must defend against.’ ” (Medical Marijuana Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 894, quoting Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832-833; see also Okun v. Superior Court (1981) 29 Cal.3d 442, 458 [discussing pleading requirements for slander; stating the complaint must "give[ ] notice of the issues sufficient to enable preparation of a defense"].)

Defendant presents that Plaintiff’s Complaint fails to sufficiently plead a claim for Conversion because it contains no factual allegations of Plaintiff’s ownership, when or how the wrongful conduct by Defendants occurred, and Plaintiff’s ownership or right to the restaurant items, decorations, fixtures, equipment’s, liquor license, or other allegedly converted property.

Plaintiff believes she has sufficiently pled conversion as she has stated that “Defendants, and each of them as principals and accessories, acted knowingly and designedly, in converting Plaintiffs lawfully owned property and concealing it[]” (Complaint, 4th COA, ¶ 8), included the dates of the conduct alleged, and quantified her damages.

Defendant reiterates that Plaintiff’s allegations are insufficient to establish a cause of action for conversion because she has not pled sufficient facts to show that Defendants committed any wrongful act or disposition of her personal property as the Complaint lacks factual allegations supporting Plaintiff’s ownership.

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim 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.” (Lee v. Hanley (2015) 61Cal.4th 1225, 1240.)

Plaintiff’s claims for Conversion are based on: conversion of restaurant items and decorations, conversion of property, embezzlement of Plaintiff’s ABC liquor license resulting in ultimately taking it away from Plaintiff, the taking of a vintage fireplace, and the conversion of a decorative vintage horse wagon. (Complaint, 4th COA.)

Though Plaintiff alleges that Defendants were her tenants and that the Property is hers (see Complaint, each COA at ¶ 1, 1st-3rd COA at ¶ 2) there is no clear statement of ownership. Plaintiff does not allege how each item that she claims was converted was inconsistent with her rights. That is, Plaintiff’s rights or ownership to each item that she claims was converted is not sufficiently delineated. Further, the act of taking and possessing property does not in itself constitute a conversion of personal property. (See Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 549-551 [description of conversion – taking possession of a building and locking it is not conversion, taking goods and placing them in storage is not conversion; “To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property.”].)

Defendants present that Plaintiff alleges the same facts in her Violation of Cal. Pen. Code § 496 claim as her Conversion claim. Defendant argues that Cal. Pen. Code § 496(a) prohibits “receiv[ing] any property that has been stolen[,]” that Plaintiff’s Complaint fails to state facts to support the contention that the property was stolen before Defendants acquired possession thereof, that a thief cannot receive stolen property because that is logically impossible, that a license or permit to sell liquor is a purely personal privilege and thus cannot be stolen and, as such, Plaintiff’s Complaint does not contain facts showing Defendants received or concealed/withheld stolen property.

Plaintiff first presents “Defendants erroneously demur to Penal Code §496, and not Penal Code §496(c).” (Opposition 8:22-23.) Cal. Pen. Code § 496 includes subdivision (c). “Fundamental rules of statutory interpretation require that a statute be read as a whole, and that the parts of a statute be read together and harmonized, when possible, in order to give effect to the intent of the Legislature.” (County of Orange v. Flournoy (1974) 42 Cal.App.3d 908, 914.)

Plaintiff argues that Defendants, and each of them, stole and received Plaintiff's lawfully owned property and gave it to Mosman's Country Steakhouse & Bar, Zubie Enterprises, and Mosman's Town & Country Carpet & Construction. This is not alleged in the Complaint. As mentioned, ante,¿Plaintiff’s attempt to supply Defendants and the Court with new information to explain her allegations in the Complaint are improper for this Demurrer.

Plaintiff states that a criminal conviction under Cal. Pen. Code § 496(a) is not a prerequisite to recovery of treble damages under §496(c) Bell v. Feibush (2013) 212 Cal.App.4th 1041 (“Bell”) under and then cites to her Complaint. Plaintiff argues that the Complaint, in conjunction with the Bell holding shows that the Complaint alleges sufficient facts to state this claim.

Defendant’s Reply focuses on the conviction aspect of Cal. Pen. Code § 496. Plaintiff presents that “section 496 simply does not apply to the thief who stole the property in question[,]” citing People v. Stewart (1986) 185 Cal.App.3d 197, 202-203. This argument is unavailing as Cal. Pen. Code § 496(a) specifically states “[a] principal in the actual theft of the property may be convicted pursuant to this section.” The Court notes that the statute continues to limits such a conviction: “However, no person may be convicted both pursuant to this section and of the theft of the same property.” (Ibid.) As Court is a civil court, conviction is not an issue in front of this Court. The question before this Court is whether Plaintiff has pled a civil claim under Cal. Pen. Code §496(c) stemming from either Cal. Pen. Code §496(a) or (b).

Defendant next argues that Plaintiff is incorrect to argue that she can plead a claim for violation of Penal Code section 496, subdivision (c), without regard for the remaining elements of section 496 and that Plaintiff’s allegations are conclusory as there is no alleged facts showing that Defendants stole or received or concealed stolen property. Defendant reiterates their belief that a thief cannot receive stolen property from himself because it is logically impossible.

Cal. Pen. Code § 496(c) provides that any person who has been injured by a violation of Cal. Pen. Code § 496 (a), may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney fees. This includes a a private right of action for any person who has been injured by the sale of stolen property. (Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal. App. 4th 1, 16-17 [overruled in part by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310].) The plain language of the statute clearly does not restrict the right to bring a civil action to the owner of the stolen property. (Ibid.)

To state a claim for receipt of stolen property in violation of Cal. Pen. Code § 496(a) a plaintiff must allege (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. (Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal.App.5th 955, 970 [elements of § 496 offense stated; questioned as to whether Cal. Pen. Code § 496(a) contemplates that property must already have been stolen when it comes into the defendant's hands].)

The Court applies these elements in this civil case for the purposes of this Demurrer. Here, the allegations of the pleadings are nearly identical to that of the Conversion claim. That is, Plaintiff alleges the same items were stolen by Defendants. (See Complaint, 5th COA.) The Complaint cites to Cal. Pen. Code § 496(c) to provide for her right to bring a violation of Cal. Pen. Code § 496 as a civil action. As pled, Defendants here were not a third party, but rather the principals who are alleged to be joint parties in a concerted effort to steal property from Plaintiff. Given Cal. Pen. Code § 496(a) specifically provides that a principal in the actual theft of the property may be held liable under section 496, the Court believes that Plaintiff has a claim for civil damages under Penal Code section 496(a) based on her allegations. However, as with the Conversion cause of action, there is no clear statement of ownership to the items allegedly stolen.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685). “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿

The Motion to Strike concerns the same causes of actions as the Demurrer. As the Demurrer is sustained, the causes of action, the Motion to Strike is, at this time, MOOT.

Defendants Charles E. Mosman; Sandra Mosman; Mosman’s Country Steakhouse & Bar, Zubie Enterprises, Inc.; and Charles E. Mosman DBA Mosman’s Town & Country Carpet & Construction’s Demurrer is SUSTAINED with leave to amend. Plaintiff is to file an amended Complaint within 30 days of this Court Order.

[1] Defendants Charles Mosman and Sandra Mosman share the same surname. The Court refers to each individually by their first name for the purpose of clarity. No disrespect is meant.