Case Number: BC510018    Hearing Date: July 17, 2014    Dept: J

Re: Wellendorf Performance, LLC, etc. v. Tiger Racing Performance Parts, LLC, etc., et al. (BC510018 C/W KC066063)

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Moving Party: Defendant Thomas Hollfelder

Respondent: Plaintiff Wellendorf Performance, LLC

POS: Moving OK; Opposing served by regular mail contrary to CCP §§ 437(b)(2) and 1005(c)

The Complaint herein alleges that Plaintiff loaned a 2011 Ford Mustang GT to late Paul Brown, a professional race car driver and husband of Carol Hollfelder, but that Defendants failed to return the vehicle and have disassembled and removed parts from the vehicle. The Complaint, filed on 3/24/13, asserts causes of action for:

1. Possession of Personal Property
2. Conversion

The Final Status Conference is set for 12/1/14. The Trial is set for 12/9/14.

Defendant Thomas Hollfelder (“Defendant” or “Mr. Hollfelder”) now moves for summary judgment of the entire action as against him and brought by Plaintiff Wellendorf Performance LLC (“Plaintiff”). Alternatively, Defendant moves for summary adjudication in his favor and against Plaintiff of the following: (1) First Cause of Action for Possession of Personal Property; and (2) Second Cause of Action for Conversion. The motion is made under CCP § 437c on the grounds that there is no triable issue of material fact and Defendant is entitled to summary judgment as a matter of law.

PLAINTIFF’S EVIDENTIARY OBJECTIONS:

Declaration of Thomas Hollfelder:

1. Overruled
2. Overruled (The prior declaration confirms that he does not presently have possession and claims no ownership or right to possession.)
3. Overruled

Declaration of Carol Hollfelder:

1-8. Overruled

A defendant moving for summary judgment must “show” that either one or more elements of the “cause of action … cannot be established,” or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) Once the moving party has met the initial burden above, the burden shifts to the opposing party to produce admissible evidence showing a triable issue of fact exists. (CCP § 437c(p)(2).)

FIRST CAUSE OF ACTION FOR POSSESSION OF PERSONAL PROPERTY:

In an action for tortious possession of personal property, plaintiff must demonstrate that plaintiff was at the time the action was commenced the owner of the chattel, coupled with a right to the immediate possession thereof, and that the property was at that time wrongfully in the possession of defendant. (Stockton Morris Plan Co. v. Mariposa County (1950) 99 Cal.App.2d 210, 213.)

Defendant contends that Plaintiff cannot prove that Mr. Hollfelder had or has wrongfully taken possession of the subject racecar. Defendant submits the following evidence:

Mr. Hollfelder was not a party to any agreement concerning the ownership rights of the champion racecar. (DSS ¶ 18: Thomas Hollfelder Decl. ¶ 8; Carol Hollfelder Decl. ¶ 8.) Mr. Hollfelder does not own any part of Tiger Racing Performance Parts. (DSS ¶ 24: Thomas Hollfelder Decl. ¶ 9; Carol Hollfelder Decl. ¶ 4.) Mr. Hollfelder neither possesses the champion racecar, nor claims any ownership interest in the champion racecar. (DSS ¶ 31: Thomas Hollfelder Decl. ¶ 8.)

Mr. Hollfelder granted permission to Paul Brown, Carol Hollfelder, and their racing team to park the champion racecar on his property temporarily and to work on the vehicle there, but upon Plaintiff’s filing suit, the champion racecar was promptly removed. (DSS ¶ 32: Thomas Hollfelder Decl. ¶ 8; Carol Hollfelder Decl. ¶ 9.) Mr. Hollfelder did not have possession of the champion racecar. (DSS ¶ 33: Thomas Hollfelder Decl. ¶ 8.) He left Paul Brown and Carol Hollfelder in possession and control over the champion racecar. (DSS ¶ 34: Thomas Hollfelder Decl. ¶ 8.)

Defendant has met his initial burden. The evidence demonstrates that the subject vehicle was not and is not in wrongful possession of Defendant.

Plaintiff, in opposition, contends that Defendant fails to meet his evidentiary burden because he failed to produce any evidence to either negate an element of the claim, or provide a complete defense. Plaintiff contends that Defendant’s ownership interest, for purposes of this claim, is not particularly relevant and that the issue is possession, not ownership. Plaintiff contends that whether Defendant had control of subject vehicle while it was on his property is a disputed fact; and that the court must assume that Defendant’s ownership of the facilities where the subject vehicle was stored, and physical custody of the subject vehicle, raises a triable issue with regard to possession.

However, Defendant, in his moving papers submits evidence that the subject vehicle was frequently parked, stored, or worked on at his property as a courtesy to his daughter Carol Hollfelder and Paul Brown; Defendant never claimed possession of the subject vehicle; Defendant was never given possession of the subject vehicle; and that Defendant left Paul Brown and Carol Hollfelder in possession and control over the subject vehicle. (DSS ¶¶ 18-21, 31-34: Thomas Hollfelder Decl. ¶ 8.) The evidence demonstrates that Defendant did not have possession and/or control of the subject vehicle, but rather, that he only allowed the subject vehicle to be parked, stored, or worked on at his property.

Plaintiff fails to raise a triable issue. Thus, the motion for summary adjudication of the first cause of action is granted in favor of Defendant.

SECOND CAUSE OF ACTION FOR CONVERSION:

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1404-1405.)

As discussed above, the evidence submitted by Defendant demonstrates that Defendant did not have possession of the subject vehicle and that there was no conversion by a wrongful act or disposition of property rights. (See DSS ¶¶ 25-34.)

Plaintiff, in opposition, contends that Defendant cannot escape liability because he had the subject vehicle removed from this property. However, the evidence submitted demonstrates that Defendant REQUESTED the removal of the subject vehicle from his premises. There is no evidence that Defendant himself removed the subject vehicle. Plaintiff does not submit any evidence raising a triable issue as to the issue of control and/or removal of the subject vehicle.

Plaintiff also submits the Declaration of Tracey Wellendorf, who attests that on November 10, 2012, he demanded that Hollfelder return the champion racecar to Plaintiff, but that Hollfelder refused and failed to return the champion racecar. (Opposition, Wellendorf Decl. ¶ 23.) However, it is unclear from Mr. Wellendorf’s Declaration whether such demand was made on Carol Hollfelder or Thomas Hollfelder. While Mr. Wellendorf also attests that Thomas Hollfelder has neither permitted him to retrieve the subject vehicle nor return the subject vehicle to Plaintiff, Plaintiff fails to submit any evidence demonstrating that Defendant had the authority to allow him to retrieve the subject vehicle and/or return the subject vehicle. As discussed above, the evidence submitted by Defendant demonstrates that Defendant did not have possession of the subject vehicle, but that he only allowed the subject vehicle to be on his premises as a courtesy to his daughter.

Plaintiff fails to raise a triable issue of fact. Thus, the motion for summary adjudication of the second cause of action is granted in favor of Defendant.

MOTION FOR SUMMARY JUDGMENT:

Motion for summary adjudication of both first and second causes of action is granted. Thus, motion for summary judgment is also granted.

REQUEST FOR CONTINUANCE:

If the opposing party shows by declaration that essential evidence “may exist but cannot, for reasons stated, then be presented, the court shall deny the motion” or continue it for a reasonable period, or “make any other order as may be just.” (CCP § 437c(h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) It is not enough to ask for a continuance at the time of oral argument or in opposing points and authorities. The statute requires that the opposition be accompanied by affidavits or declarations showing facts to justify opposition may exist; or that such showing be made by an ex parte motion on or before the date the opposition is due. (See CCP § 437c(h); Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

The opposing party’s declaration in support of a motion to continue the hearing should show the following: (1) facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion; (2) the specific reasons why such evidence cannot be presented at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) the specific steps or procedures the opposing party intends to utilize to obtain such evidence. (CCP § 437c(h); see Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254—merely stating that “further discovery or investigation is contemplated” not sufficient; Johnson v. Alameda County Med. Ctr. (2012) 205 Cal.App.4th 521, 532—declaration stating that “discovery is reasonably necessary to determine who” may be responsible for injury “is insufficient to support a continuance.”)

Plaintiff’s counsel’s declaration that she believes that “Thomas Hollfelder and Carol Hollfelder have information relevant to the issue of possession and also with regard to Hollfelder’s involvement with disassembly of the Mustang and removal of the Mustang from Hollfelder’s garage” is insufficient to support a continuance. Moreover, the motion was previously continued pursuant to Plaintiff’s Ex Parte Application on May 14, 2014. Thus, Plaintiff’s request for a further continuance is denied.