Case Name: Singh v. MJ Food & Liquor, Inc. dba Shop N Save, et al.
Case No.: 1-13-CV-251926

The cross-complaint (“XC”) alleges that during cross-defendant Gurnam Singh’s (“Singh”) employment with cross-complainant MJ Food & Liquor, Inc. (“MJ”), MJ noted a significant and inexplicable loss in profits and an unaccounted-for decrease in inventory. (See XC, ¶ 11.) In May 2013, MJ reviewed its cash register receipts and noticed that the cash register receipts showed an unusually high amount of very small and identical transactions during the time when Singh was working. (See XC, ¶ 12.) After reviewing the tapes from the security camera, MJ noticed that the merchandise purchased by customers cost significantly more than the amount rung up on the register and that the amount of cash collected from customers was significantly greater than the amount Singh rang up on the register. (Id.) On May 25, 2013, MJ reported Singh’s conduct to the Mountain View Police Department and terminated Singh’s employment. (See XC, ¶ 14.) On March 11, 2014, MJ filed its cross-complaint against Singh for conversion. Singh demurs to the complaint on the grounds that it is uncertain and fails to state facts sufficient to constitute a cause of action for conversion because “MJ does not allege that any specific property or any specific amount of money was taken by Singh or even that it occurred on any particular date.” (Singh’s memorandum of points and authorities in support of demurrer, p.5:17-19.)

Singh notes that PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, states that “[m]oney cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.” (Id. at p. 395.) However, Singh conveniently omits PCO’s further discussion on the matter:

The California Supreme Court stated, ‘While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [citation], it is not necessary that each coin or bill be earmarked.’ [Citation.] This statement appears to be in conformity with the modern view of the law. As one authority wrote: ‘Identifiable, specific coins or bills are subject to conversion if they are identifiable as the particular coins or bills taken from the plaintiff. The old idea that money could be converted only if it was in a ‘bag’ now seems obsolete. Today, it might be plausible to say that when the defendant commits an affirmative act and physically takes control of particular paper monies he is guilty of conversion, even if the particular bills or coins cannot be identified. Certainly the plaintiff is entitled to recover on some theory, even if not on the basis of conversion’ [Citation.]

California cases permitting an action for conversion of money typically involve those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others. [Citations.] In each of these cases, the amount of money converted was readily ascertainable….

In this case, plaintiffs may have stated a cause of action for conversion by alleging, in effect, an amount of cash ‘capable of identification.’

(PCO, Inc., supra, 150 Cal.App.4th at p.396.)

Here, the XC alleges facts showing that the amount of monies converted is capable of identification. MJ will certainly be required to demonstrate that amount in order to prevail on its claim at trial. (See Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543-44.) However, Singh’s demurrer is OVERRULED in its entirety as the XC states facts sufficient to constitute a conversion claim and is not uncertain.