Defendant Jean Hargrove, as trustee of the Robert A. Hargrove Revocable Trust, (“Defendant”) demurs to the first cause of action in the Third Amended Complaint (“TAC”) filed by plaintiff Huong Thi Nguyen (“Plaintiff”).

Plaintiff’s request for judicial notice is DENIED. Although a court may judicially notice a variety of matters, only relevant material may be noticed. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal. 4th 1057, 1063, overruled on other grounds.) Plaintiff requests that the Court take judicial notice of a proposed amended pleading, but that document has no bearing on the demurrer before the Court.

The first cause of action is for conversion of life insurance proceeds and imposition of resulting trust.

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.

(Oakdale Vill. Group v. Fong (1996) 43 Cal. App. 4th 539, 543-544.)

The Court previously held, in connection with the demurrer to the First Amended Complaint:

Defendant contends that the first cause of action fails to state a claim against her in her capacity as trustee because life insurance policies fall outside the purview of the Trust and its administration. This argument is well-taken. Here, as Defendant notes, there are no allegations that the Trust was a beneficiary of the life insurance proceeds. “It is well settled that a beneficiary under an insurance policy takes by virtue of the contract of insurance rather than by the law of succession; that the proceeds do not become part of the estate of the insured; and the law of descent and distribution has no applicability to such cases.” (See Estate of Welfer (1952) 110 Cal.App.2d 262, 265.) A trustee has a duty to “take reasonable steps under the circumstances to take and keep control of and to preserve the trust property.” (See Prob. Code, § 16006.) Absent allegations that the insurance policy is Trust property, the FAC fails to plead a basis for conversion against Jean in her capacity as trustee. Accordingly, the demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The Court sustained Defendant’s demurrer to the Second Amended Complaint for essentially the same reason. Defendant argues that Plaintiff has not cured the defect and that Plaintiff must allege that the Trust was a beneficiary of the insurance policy, but cannot do so. Plaintiff’s only argument now is that the elements of conversion have been alleged. Plaintiff alleges that the proceeds of the insurance policy were placed under the dominion, control, and possession of Defendant in her capacity as trustee, but this is just a legal conclusion, entitled to no weight on demurrer. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1037.)

Plaintiff has not materially changed the allegations of the first cause of action in the TAC from the allegations of the Second Amended Complaint. Further, Plaintiff has not explained how the operative pleading can be amended to cure the defect. Accordingly, Defendant’s demurrer to the first cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

In the opposition papers, Plaintiff requests leave to file a Fourth Amended Complaint with a new cause of action for “Fraud, Intentional and Negligent Misrepresentation and Constructive Trust.” If Plaintiff wishes to file an amended pleading, Plaintiff must file a formal motion for leave to amend in compliance with Cal. Rules of Court, rule 3.1324.