Judge: Stephen P. Pfahler, Case: 22CHCV00453, Date: 2022-12-07 Tentative Ruling

Case Number: 22CHCV00453    Hearing Date: December 7, 2022    Dept: F49

Dept. F-49

Date: 12-7-22

Case #22CHCV00453

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant, Omar Hernandez

RESPONDING PARTY: Plaintiff, Sally Motodani, Pro Per

 

RELIEF REQUESTED

Demurrer to the Complaint

·         1st Cause of Action: Money Had and Received

·         2nd Cause of Action: Fraud

·         3rd Cause of Action: Conversion

·         4th Cause of Action: Violation of Penal Code section 496(a)

 

SUMMARY OF ACTION

On an unspecified date, 13534 Mercer St., Pacoima, sold for an unspecified amount. On May 6, 2022, Plaintiff Sally Motodani received a $181,798.69 check from the escrow company. Because plaintiff is 96 years old, and depends on a caretaker, Plaintiff alleges an agreement with the buyers for a six (6) month stay on the premises in order to allow Plaintiff an opportunity to find a new residence. The stay over was set to end on September 14, 2022.

 

Meanwhile, Plaintiff agreed to certain construction work on the premises with Defendant Omar Hernandez. According to an exhibit attached to the complaint, a March 14, 2022, purported agreement represents that Plaintiff agreed to equally split sales proceeds with Defendant in exchange for said work. Following the close of escrow, Plaintiff tendered a $90,0000 check to Defendant, but then issued a stop payment on the check, due to the alleged failure to complete the contracted work, such as roof repairs. Plaintiff instead contends the $90,000 is necessary for relocation efforts. Notwithstanding the stop payment, a separate check was allegedly later cashed by Defendant under without the consent of Plaintiff.

 

On June 20, 2022, Plaintiff, in pro per, filed a complaint for Money Had and Received, Fraud, Conversion, and Violation of Penal Code section 496(a)

 

RULING: Sustained with Leave to Amend in Part/Overruled in Part.

Defendant Omar Hernandez brings the subject demurrer to all causes of action in the complaint on grounds of uncertainty, essentially challenging the factual veracity of the allegations. Plaintiff in opposition challenges the demurrer on grounds of reliance on extrinsic facts and inference, as well as a reiteration of the propriety of the claims.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

1st Cause of Action, Money Had and Received: Sustained with Leave to Amend.

Defendant challenges the common count claim on grounds that the complaint fails to allege a basis of indebtedness, or receipt of funds intended for Plaintiff. (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) A common count cause of action withstands general and special demurrer if the elements are stated: a statement of indebtedness, consideration, and nonpayment. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

 

The operative complaint lacks any specific basis of a common count in that the alleged check was obtained by fraudulent means and/or a denial of the scope of work completed. [Comp., ¶¶ 10-11.] Nothing in the operative complaint alleges the required elements establishing a basis of the debt, consideration, and actual nonpayment. The demurrer is sustained with leave to amend.

 

2nd Cause of Action, Fraud: Sustained with Leave to Amend.

Defendant challenges the factual basis of the fraud claim. “‘The elements of fraud, which give rise to the 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.’” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

 

Defendant relies on the lack of any copy of the allegedly cashed check, which the court declines to consider as a basis of argument, due to the reliance on extrinsic information and/or inference. As for the complaint itself, Plaintiff sufficiently alleges fraud on the basis of the check number 1021 (also identified as check number 2021) in that Defendant represented certain work performed, which Plaintiff later contends was not performed. Nevertheless, Plaintiff specifically alleges a stop payment on the check, which negates any claim for resulting damage, in that no funds were removed. [Comp., ¶¶ 14-15.] The alleged theft and cashing of check 2023 in no way supports fraud in that Plaintiff never voluntarily provided the check and therefore none of the elements of fraud are met for purposes of the subject claim. [Comp., ¶ 15.] The demurrer is sustained with leave to amend.

 

3rd Cause of Action, Conversion: Overruled.

Defendant challenges the subject claim on grounds that the contract undermines any claim for conversion. “‘A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved.’” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

 

The complaint sufficiently alleges the wrongful acquisition of the funds via an allegedly misappropriated check. The court declines to consider any extrinsic inference regarding the validity of the contract for purposes of determining the factual validity of the claim. The demurrer is overruled.

 

4th Cause of Action, Violation of Penal Code section 496(a): Sustained with Leave to Amend.

Defendant challenges the factual basis of the claim.

 

(a) Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.

 

Pen. Code, § 496

 

Nothing in the complaint alleges Defendant received stolen property in that Plaintiff alleges Defendant allegedly drafted and cashed the check with no indication the check was the result of receipt of theft. Furthermore, nothing in the complaint establishes a basis for a civil cause of action based on a criminal statute. The demurrer is sustained with leave to amend.

 

In summary, the court sustains the demurrer to the complaint, except for the conversion cause of action. Plaintiff is granted 30 days leave to amend. Plaintiff may not add any new causes of action without leave of court, but may add facts. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If Plaintiff fails to timely file an amended complaint, Defendant shall answer the remaining claims upon the lapse of the amendment deadline. If Plaintiff adds any new claims without leave of court, Defendant may bring a motion to strike on these items.

 

Defendant to give notice.