Re: Panthera Financial, Inc. v. Sunrise Investment Enterprises, Inc., et al., and related cross-action

Superior Court Case No. 17CECG02756

Hearing Date:

February 28, 2018 (Dept. 402)

Motion:

Demurrer to cross-complaint

Tentative Ruling:

To overrule the special demurrer. (Code Civ. Proc. §430.10(f).) To overrule the general demurrer to the conversion cause of action; and to sustain, with leave to amend, the general demurer to all remaining causes of action. (Id. at subd. (e).)

Explanation:

Demurrer

It is “the established rule that as against a general demurrer a complaint will be liberally construed[…]; that any mere ground of special demurrer for uncertainty will be resolved in support of the complaint and the demurrer overruled, when the necessary facts are shown to exist, although inaccurately or ambiguously stated, or appearing only by necessary implication.” (Hunter v. Freeman (1951) 105 Cal.App.2d 129, 133; see Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [pursuant to rule of liberal construction, court draws inferences favorable to plaintiff, not defendant].) In testing a pleading against a demurrer, the facts alleged are deemed to be true, as it is “not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which [plaintiff] describes the defendant’s conduct.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) Pleadings are to be reasonably interpreted, read as a whole and in context. (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.) Plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate fact; the pleading is adequate if it apprises defendant of the factual basis for plaintiff’s claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; see Fundin, supra, 152 Cal.App. 3d at p. 955 [“All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief.”].)

“A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party. A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met[.]” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605, internal citations and quotation marks omitted.) A demurrer for uncertainty is strictly construed, “even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

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Code Civ. Proc. §428.10(b)

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth any cause of action it has against any of the parties who filed the complaint or cross-complaint against it; and/or any cause of action it has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in the cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against cross-complainant or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against cross-complainant. (Code Civ. Proc. §428.10(a), (b).)

In the case at bench, moving party demurs on the ground that the complaint is unclear whether the “subject titles” alleged in the cross-complaint are the same titles that are alleged in the complaint, or how the “subject titles” are related to the allegations of the complaint. Though Cross-Complainant does fail to allege that the “subject titles” are related to the loan agreement alleged in the complaint, taken as a whole it is clear enough that the “subject titles” are the same as those alleged in the complaint. The allegations are sufficient to withstand demurrer.

The complaint is also sufficiently clear that the cross-complaint is based on the same transaction, occurrence, or series of transactions or occurrences as the complaint. The cross-complaint was filed in the same action as the complaint; the complaint clearly alleges that the parties entered into a loan agreement for the purchase of vehicles, and that the titles to those vehicles were to be put in Plaintiff’s name as collateral for the loan. Cross-Defendant Adesa’s special demurrer is overruled.

Conversion

Conversion is the wrongful exercise of dominion over the property of another.

(Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The elements of a conversion claim are: (1)
plaintiff’s ownership or right to possession of the property; (2) defendant’s conversion by
a wrongful act or disposition of property rights; and (3) damages. (Ibid.)

Here, Cross-Complainants allege that they had the right of possession of certain vehicle titles; that Cross-Defendants wrongfully took possession of these titles, and refused to give them to Cross-Complainants; and that Cross-Complainants were damaged thereby. Cross-Complainants allege sufficient facts to withstand demurrer. Accordingly, Cross-Defendant’s demurrer to the conversion cause of action is overruled.

Other claims

Cross-Complainants appear to agree with moving party that all claims other than the claim for conversion, require amendment. Accordingly, Cross-Defendant’s demurrer to the remaining claims is sustained, with leave to amend.

The Court takes judicial notice as requested by Cross-Complainants.

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Counsel for Cross-Complainants is reminded that a demurring party is required to meet and confer in person or by telephone prior to filing a demurrer; meeting and conferring by letter is insufficient. (Code Civ. Proc. §430.41(a).)

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued by: JYH on 02/27/18
(Judge’s initials) (Date)