Judge: Virginia Keeny, Case: 22VECV00712, Date: 2023-02-06 Tentative Ruling

Case Number: 22VECV00712    Hearing Date: February 6, 2023    Dept: W

USB LEASING LT V. BENJAMIN GABAYAN, et al.

DEFENDANTS’ DEMURRER TO PLAINTIFF’S firsT amended COMPLAINT

Date of Hearing:        February 6, 2023                   Trial Date:       None set.  

Department:              W                                            Case No.:        22VECV00712

Moving Party:            Defendant B&F Paradise Inc dba Star Motors

Responding Party:     Plaintiff USB Leasing LT

Meet and Confer:      Yes. (Omrani Decl. ¶¶3-6.)

BACKGROUND

This action arises from Defendants’ alleged repair and storage of a 2019 Range Rover (“the vehicle”). Plaintiff claims to be the lienholder and legal owner of the vehicle. Plaintiff alleges Defendants have been in possession of the vehicle since January 2022. On April 22, 2022, Plaintiff called Star Motors to negotiate for the release of the Vehicle and learned that the Vehicle was still located at Star Motors’s body shop location. Plaintiff then briefly chronicles its efforts to contact “Defendants’ employee … who handles impounds” and how Star Motors has not provided any invoices or authorizations to substantiate any costs related to the release of the Vehicle despite Plaintiff’s demand for them.

Plaintiff alleges seven causes of action against the defendants: for (1) claim and delivery; (2) violation of Civil Code section 3068; (3) violation of Vehicle Code section 10652.5; (4) violation of Civil Code section 3071; (5) violation of Vehicle Code section 22651.07; (6) conversion; and (7) declaratory relief (as to only the corporate defendant).

Plaintiff has sued Benjamin Gabayan, and individual, and B&F Paradise, Inc. d/b/a Star Motors (“Star Motors”). Plaintiff alleges Star Motors operates as an alter ego to Gabayan for the purposes of its complaint.

[Tentative] Ruling

Defendant B&F Paradise Inc dba Star Motors’s Demurrer to the first cause of action is overruled and sustained with leave to amend as to the sixth and seventh causes of action. Defendant’s Motion to Strike is Moot.

ANALYSIS

Defendant B&F Paradise Inc dba Star Motors demurs to the first amended complaint on the grounds the complaint does not state facts sufficient to constitute a cause of action against Defendant and is uncertain.

First Cause of Action – Claim and Delivery

Defendant demurs to the first cause of action on the grounds Plaintiff has not alleged why or how it is entitled to the Vehicle or that the Vehicle is wrongfully detained by Defendant.

“’[C]laim and delivery’” denominates a remedy rather than a tort, it too is grounded in the concept of interference with personal property rights. ‘Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.’ (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271, 82 Cal.Rptr.2d 241.)” (Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281–1282.) As a result, to the extent that Plaintiff is seeking the provisional remedy of “claim and delivery,” Plaintiff must comply with the statutory requirements for such relief. (See CCP sections 511.010, et seq.)

Defendant argues Plaintiff cannot meet Item 1 or 2 of Code of Civil Procedure section 512.010(b). Defendant contends Plaintiff does not allege why or how it is entitled to possession of the vehicle and if the basis for Plaintiff’s claim is a written instrument, Plaintiff fails to include a copy to the complaint. Moreover, Plaintiff does not allege that the property is wrongfully detained by the Defendant or even the manner in which the Defendant came into possession of the property.

When an action is brought for recovery of personal property, all that needs to be alleged is “(a) The plaintiff's right to possession of tangible property at the time of commencement of the action. (See infra, § 692 et seq.)[,] (b) The defendant's wrongful possession. (See infra, § 695 et seq.)[,] (c) The value of the property. (See infra, § 697.)” ((a) [§ 690] In General., 5 Witkin, Cal. Proc. 6th Plead § 690 (2022).)

For the purposes of the demurrer, the court finds Plaintiff has alleged facts sufficient to support a cause of action for specific recovery of personal property. Plaintiff alleges they are the lienholder of the Vehicle per the Certificate of Title. (FAC, Exh. 1.) Plaintiff further alleges Defendant is in wrongful possession of the vehicle as the lien Defendants have on the Vehicle is invalid. Plaintiff also alleges the value of the vehicle.

Accordingly, Defendant’s demurrer to the first cause of action is OVERRULED.  

Sixth Cause of Action – Conversion

Defendant demurs to the sixth cause of action on the grounds Plaintiff does not allege how Defendant’s possession was wrongful or how Defendant wrongfully came into possession of the vehicle.

“‘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).) 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.)  

Defendant argues Plaintiff has not alleged any of the requisite elements for conversion including how Defendant’s possession is a wrongful act, why or how Defendant wrongfully came into possession of the vehicle, or why the Vehicle was allegedly wrongfully impounded.

As noted above, Plaintiff has sufficiently alleged their right to possession of the Vehicle. Plaintiff alleges they are a lienholder on the Vehicle and the Vehicle is being stored at Defendant’s shop. However, Plaintiff has not sufficiently alleged how Defendant’s disposition of the property inconsistent with plaintiff’s rights or their damages. While the court may assume the truth of the allegations in the complaint, the court cannot “assume the truth of contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court cannot assume the reason Plaintiff can now repossess the car from the registered owner, how Defendant’s disposition of the Vehicle is inconsistent with their right, nor can the court assume Plaintiff’s damages as a result of Defendant’s possession of the Vehicle.

Accordingly, Defendant’s demurrer to the sixth cause of action is SUSTAINED WITH LEAVE TO AMEND. Plaintiff is given one more opportunity to properly plead a cause of action for claim and delivery.

Seventh Cause of Action – Declaratory Relief

Defendant demurs to the seventh cause of action on the grounds Plaintiff only recites the elements necessary for declaratory relief and does not allege any factual allegations.

Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

Defendant argues Plaintiff has not alleged fact sufficient to support a cause of action for declaratory relief. Defendant contends Plaintiff does not allege the existence of a written agreement and moreover, there is no controversy at issue.

The court finds Plaintiff’s allegations insufficient for the purposes of a demurrer. The seventh cause of action only recites the elements necessary for a declaratory judgment. Plaintiff did not change their allegations from the initial complaint.

Accordingly, Defendant’s demurrer to the seventh cause of action is SUSTAINED WITH LEAVE TO AMEND. Plaintiff is given one more opportunity to properly plead a cause of action for claim and delivery.

Uncertainty

Defendant demurs to the complaint and all seven causes of action on the grounds Plaintiff fails to set forth with specificity the requisite facts supporting its causes of actions.

A demurrer based on uncertainty only applies where the complaint is so bad that a defendant cannot reasonably respond—i.e., 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 Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Though California courts take a liberal view toward in artfully drawn pleadings, it remains essential a complaint set forth the actionable facts with sufficient precision to inform the defendant of what the plaintiff is complaining about and what remedies are being sought.  (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 636.)

While the causes of action are insufficiently pled, the court finds the allegations are not so uncertain that the pleading fails “as a whole apprise[ ] the adversary of the factual basis of the claim.” (4 Witkin, Cal. Proc. (6th ed. 2022) Pleading, § 392.)

Motion to Strike

Defendant moves to strike Plaintiff’s punitive damages allegations. Defendant contends Plaintiff has failed to support a cause of action for conversion to justify punitive damages.

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).)  Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)

In the instant matter, Plaintiff has not alleged any facts supporting a claim for punitive damages.  They conclusory allege that Defendant conduct was “outrageous, oppressive, made in bad faith, and in conscious disregard for the rights of Plaintiff.” (FAC ¶56.) That does not rise to the level of malice, oppression or fraud. Accordingly, the motion to strike is granted with leave to amend. 

The court notes Defendant at the end of their motion to strike provides that they are a corporation that has been suspended by the Franchise Tax board. This contention was not in the Notice. Moreover, it is not clear who is not in good standing.  The parties should be prepared to address this at the hearing.