2018-00229132-CU-FR
Norman Masters vs. Sheri Lyn Sepanski
Nature of Proceeding: Hearing on Demurrer to Cross-Complaint
Filed By: Hunt, Terry R.
*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***
Plaintiff/Cross-Defendant Norman Masters’ (“Masters”) demurrer to Defendant/Cross-Complainant Sheri Sepanski’s (“Sepanski”) first amended cross-complaint (“FAXC”) is ruled upon as follows.
This action arises out of the past relationship between Masters and Sepanski, which apparently was rife with discord and alleged abuse. Sepanski alleges that she was the owner of an auto sales business, over which she claims that in December 2015 Masters “intentionally and substantially interfered with [Sepanski’s] property by preventing [her] from having access to [her motor vehicle inventory].” (FAXC, ¶ 9.) She alleges that Masters has “physical control” of the inventory” and “title paperwork.” (FAXC, ¶ 11.) She further alleges that Masters took control of Sepanski’s
business account and took the money for his own personal gain. (FAXC, ¶ 22.) Masters made statements that he would allow Sepanski access to the funds, knowing that she relied on those statements because of their “ongoing abusive relationship.” (FAXC, ¶ 23.) He also stole her identity and opened up other bank accounts in her name. (FAXC, ¶ 27.)
Sepanski filed her initial cross-complaint in pro-per. She has now obtained counsel who filed the FAXC.
The FAXC asserts causes of action for: (1) conversion, (2) claim and delivery, (3) fraud/false pretenses, (4) fraud/embezzlement, and (5) declaratory relief.
The Court did not consider the Declaration of Norman Masters filed in reply to the opposition. In ruling on a demurrer, the Court does not consider extrinsic evidence. This Court is limited to reviewing allegations in the FAXC or subject to judicial notice.
The Court notes that Masters demurs to a larceny cause of action. No larceny cause of action is alleged in the FAXC. Sepanski removed that cause of action when she filed the FAXC.
The Court also observes that Masters’ memorandum of points and authorities argues that there are no facts supporting a claim for punitive damages. This argument will not dispose of an entire cause of action. Masters did not file a motion to strike.
Masters’ request for judicial notice is granted.
Statute of Limitations
As an initial matter, the Court notes that Masters generally demurs to the entire FAXC and each cause of action on the ground that it is barred by the statute of limitations. The demurrer states that the causes of action are barred by the statute of limitations because the FAXC “does not specify the date” of the conversion/agreement/fraud.
Masters’ memorandum of points and authorities, however, fails to reference the statute of limitations or analyze the statute of limitations. Nonetheless, the Court OVERRULES the demurrer. Nothing on the face of the FAXC or matters upon which the Court may properly take judicial notice show the FAXC was filed outside of the applicable statute of limitations. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.)
Conversion
The demurrer for uncertainty and failure to state facts is OVERRULED. Sepanski alleges that she owned and possessed more than 300 automobiles, marine craft, or other motor vehicle, Masters interfered with her sole ownership by preventing from having access to her motor vehicle inventory. She alleges that Masters has “physical control” of the inventory” and “title paperwork.” At this stage of the proceedings, these allegations are sufficient.
Claim and Delivery
The demurrer is SUSTAINED without leave to amend. “Claim and delivery” is a pre-judgment remedy, not a cause of action. It “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.” ( Ananda Church of Self-Realization v. Mass. Bay Ins. Co., (2002) 95 Cal.App.4th 1273, 1281-1282; accord Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 127.)
Fraud/false pretenses
The demurrer on the ground of failure to allege with specificity is SUSTAINED with leave to amend. Sepanksi alleges that Masters made certain statements to her, she does not allege how or when those statements were made.
Fraud/embezzlement
“The essential elements of embezzlement are the fiduciary relation arising where one intrusts property to another, and the fraudulent appropriation of the property by the latter.” (Breceda v. Superior Court (2013) 215 Cal.App.4th 934, 956.) Sepanski’s allegations are sufficient. The demurrer for uncertainty and failure to state sufficient facts is OVERRULED.
Declaratory relief
Sepanski’s opposition did not address Masters’ demurrer regarding declaratory relief. The Court construes Sepanski’s failure to oppose as a concession on the merits. The demurrer is SUSTAINED without leave to amend.
Where leave to amend is granted, Sepanski may file and serve a second amended complaint (“SAXC”) by no later than October 3, 2019, Response to be filed and served within 30 days thereafter, 35 days if the SAXC is served by mail. (Although not required by any statute or rule of court, Sepanski is requested to attach a copy of the instant minute order to the SAXC to facilitate the filing of the pleading.)
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.