Case Number: 16. EC062221    Hearing Date: August 22, 2014    Dept: B

16. EC062221
VICKI CORONA v PETER BAER
Demurrer
Case Management Conference

The Plaintiff alleges she lost her real property in a non-judicial foreclosure sale. The Defendant, Peter Baer, entered the real property and confiscated and trashed the Plaintiff’s personal property. Further, the Defendant took some of the personal property and secreted it in unknown locations. The Plaintiff brought this action to seek damages.

The causes of action in the Complaint are for:
1) Access to Residence Denied; Unlawful Trashout
2) Confiscation and Concealment of Remaining Property
3) Hardship and Intentional Infliction of Emotional Distress

This hearing concerns demurrer filed by Defendant, Peter Baer. An initial issue is that the Plaintiff argues that she is entitled to a default judgment because the Defendant did not serve his demurrer within the thirty days after he was served. However, a review of the Court file reveals that the Plaintiff did not seek the entry of a default before the Defendant filed his demurrer. Since the Plaintiff did not seek the entry of a default, there are no grounds to enter a default judgment.

The Defendant argues that the Plaintiff’s Complaint is barred by the doctrine of res judicata because the Plaintiff has already litigated these claims in a small claims action against the Defendant. The principle of res judicata may be raised by demurrer where the facts which give rise to it appear in the complaint. Willson v. Security-First Nat’l Bank (1943) 21 Cal. 2d 705, 710-711. In addition, the Court may take judicial notice of another proceeding for the purpose of determining whether res judicata bars to the pending suit. Id.

1. Small Claims Case, 13V10196
The Defendant requests that the Court take judicial notice of Court records in 13V10196, which was the Plaintiff’s case against the Defendant in Small Claims Court. Under Evidence Code section 452(d)(1), the Court may take judicial notice of the records of any California Court.
Exhibit 5 to the request for judicial notice contains the Plaintiff’s claim. The Plaintiff alleged in paragraph 3 that the Defendant owed her $10,000 because the Defendant had “Trashed, Stolen, Confiscated Personal Property” on various dates starting in July 2013.
Exhibit 6 contains the transcript for the proceedings on May 22, 2014 in the Small Claims Court. The testimony indicates that the property was allegedly converted in July of 2013 and October of 2013 (see pages 4 to 5).
The Defendant testified that the real property was purchased in November 2012 and that possession was obtained in June of 2013 after an eviction. The Defendant testified that a lockout occurred on June 27, 2013 and that a phone number was left for the Plaintiff to contact him. When no one contacted the Defendant after 18 days, the Defendant hired a company to perform a trash-out on July 19, 2013. The Plaintiff was present and the crews put aside anything that she did not want thrown away. The Defendant testified that he then waited three months and then he obtained three pods in October 2013 to store the personal property. The Defendant testified that six months later, the remaining personal property was auctioned off. Throughout his testimony, the Defendant repeatedly stated that he did not want the Plaintiff’s property and that he wanted her to take it so that he did not have to incur the costs of hiring a company to remove and store it.
Exhibit 7 contains the case summary for the Plaintiff’s claim Small Claims Court. The case summary indicates that the Court entered a judgment on June 23, 2014 in favor of the Defendant that found that the Defendant did not owe any money to the Plaintiff’s on the Plaintiff’s claim.

2. Pending Case, EC062221
In the pending case, the Plaintiff commenced the action by filing the Complaint on March 12, 2014. The Complaint pleads that the Defendant trashed, confiscated, and secreted her personal property at 6659 Radford Avenue, North Hollywood, CA, in July and October of 2013. The personal property included tools, furniture, dance flooring, household items, a cat, and birds.
The Plaintiff alleges in paragraph 3 of the first cause of action that the Defendant’s employees converted her personal property on July 17, 2013. The Plaintiff alleges in paragraph 7 of the second cause of action that the Defendant’s employees confiscated the remainder of her property on October 16, 2013. The Plaintiff alleges in paragraph 18 of her third cause of action that as a result of the Defendant’s conversion of her property, she suffered extreme financial and emotional distress. Each cause of action is based on the conversion of property in July and October of 2013.

3. Res Judicata
The doctrine of res judicata applies when the following is established:

1) the issue decided in the prior adjudication is identical with the one presented in the action in question;
2) there is a final judgment on the merits; and
3) the party against whom the plea is asserted is a party or in privity with a party to the prior adjudication.
Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal. App. 3d 622, 628.

a. Issue Decided in Prior Action is Identical
A comparison of the claim from the Small Claims Court to the Complaint in the pending action reveals that the issues decided in the prior adjudication are identical to the claims in the pending litigation. In both actions, the Plaintiff seeks damages for the conversion of her personal property that occurred in and after July 2013.
Accordingly, the Court finds that the first prong of the res judicata test exists.

b. Final Judgment on the Merits
As noted above, the Court in 13V10196 entered a judgment in favor of the Defendant and found that the Defendant did not owe any money to the Plaintiff. This was a final judgment on the merits of the Plaintiff’s claim that the Defendant converted her personal property in July and October of 2013.
Accordingly, the Court finds that the second prong of the res judicata test exists.

c. Identical Parties or Parties in Privity
The pending action is brought by the Plaintiff, Vicki Corona, against the Defendant, Peter Baer. These are the same parties in the small claims action, 13V10196.
Accordingly, the Court finds that the third prong of the res judicata test exists because the parties in the two actions are identical.

Accordingly, the Defendant has demonstrated that there are grounds to sustain the demurrer to the Complaint based on res judicata because the judgment in case 13V10196 bars the Plaintiff from re-litigating the issues arising from the claim that the Defendant converted her personal property in July and October 2013.

Therefore, the Court sustains the demurrer to the Complaint. It does not appear possible to correct this by amendment because the Plaintiff is barred from re-litigating her claim that the Defendant caused her damages by converting her personal property.
Further, California law imposes the burden on the Plaintiff to demonstrate the manner in which he can amend his pleadings to correct the defects identified in the demurrer. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff did not offer no basis to find that she can plead around the defense that the doctrine of res judicata bars her Complaint.
Therefore, the Court does not grant leave to amend.