2017-00219020-CU-FR

Fern L. Matin vs. Lon Lundgren

Nature of Proceeding: Hearing on Demurrer to First Amended Cross-Complaint for Damages

Filed By: Serlin, Mark A.

Cross-defendant Fern Matin’s demurrer to cross-complainant Lundgren’s First Amended Cross-Complaint (“1ACC”) is OVERRULED, as follows.

Factual Background

This action arises from a personal and professional relationship between plaintiff Matin

and defendant Lundgren. According to the complaint, defendant Lundgren owned and operated as sole proprietorship a business known as “Mr. Motorhome” through early 2011, when he met plaintiff Matin and allegedly urged her to quit her salaried job to become co-owner/co-manager of the Mr. Motorhome business in Elk Grove. Plaintiff states she relied on defendant Lundgren’s representations and in late 2012 began working at the Mr. Motorhome business for 50-60 hours per week without receiving any compensation prior to November 2016.

The 1ACC purports to assert against Matin and others causes of action for conversion, constructive trust and financial elder abuse.

Moving Papers. Cross-defendant Matin now demurs to the conversion cause of action on the ground it fails to allege the conversion of any specific sum of money, without which this claim is barred by California law.

Opposition. The opposition argues that the 1ACC adequately alleges a definite or specific sum of money was converted and that the authorities cited by the moving papers are inapposite.

Analysis

The parties agree that money cannot be the subject of a cause of action for conversion unless a specific, identifiable sum is involved but they disagree on the specificity which must be pled in order to survive a demurrer.

First, the decision of Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472 does not hold that a specific, identifiable sum must be alleged in the pleading in order to survive demurrer but rather, this decision merely stands for the general proposition that “[M]oney cannot be the subject of a conversion action unless a specific sum capable of identification is involved.” (Underline added for emphasis.) This court finds that the allegations of the 1ACC are sufficient to demonstrate that a specific, identifiable sum is involved in the present case and thus, the 1ACC does not run afoul of the rule in Software Design & Application.

Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229 also does not expressly address what must be pled in order to survive a demurrer. Instead, this decision affirmed the trial court’s granting summary judgment in part because “neither by pleading nor responsive proof did plaintiffs identify any specific, identifiable sums that the [defendant] club took from them,” thereby making “the generalized claim for money not actionable as conversion.” (Id., at 235.)

Similarly, in PCO, Inc. v. Christensen, Miller (2007) 150 Cal.App.4th 384, summary adjudication of the conversion claim was appropriate because the plaintiffs could not in response to motion identify a specific sum of cash but could only estimate the amount of cash claimed to have been converted. (Id., at 397.) By its own terms, this decision does not control the outcome of the present demurrer.

In the 1ACC, it is alleged that several different specific amounts of cash were converted. The fact that these amounts are currently pled only as approximations does not under any of the foregoing authorities render them fatally defective such that cross-complainant should be forever barred from pursuing these claims or from having a reasonable opportunity to conduct a further investigation and/or discovery relative to

the exact amounts of money of which he has been deprived.

Conclusion

Based on the foregoing, the present demurrer to the 1ACC is overruled.

If not already done, cross-defendant Matin to file and serve her answer to the 1ACC no later than 7/9/2018.