Case Name: ROBERT BORREGARD v. COUNTY OF SANTA CLARA, ET AL.
Case No.:? 2016-1-CV-292080
Demurrer to Complaint and Motions for Judgment on Pleadings as to Complaint
Plaintiff Robert Borregard asserts that unidentified items of personal property, some unspecified number of which he left on the blacktop outside a hangar at the Reid-Hillview Airport, were taken by various Defendants.? Some (unidentified) property was returned while other (unidentified) property allegedly remain in the possession of Defendants.? Four motions are currently before the court: (1) the demurrer to the complaint by Defendants County of Santa Clara and Kenneth Betts; (2) the motion for judgment on the pleadings (?JOP?) by Defendant Kregg Victory; and (3) the motion for JOP by Defendant Robert Suess.
Plaintiff has failed to comply with CCP ?430.41(a) by refusing to meet and confer with counsel for County in person or by telephone when such a meeting was requested.? (See Declaration of Deputy County Counsel Meghan Loisel and exhibits A and B.)? Plaintiff?s correspondence in response to counsel?s request exemplifies why the statute specifically requires the meet-and-confer to be in person or by telephone.? The statute does not exempt self-represented litigants such as Plaintiff unless the litigant is incarcerated.? ?[W]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.? Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.?? (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations omitted).? Plaintiff is admonished to comply with all applicable laws in the future.
California Rule of Court 2.112 states that: ?Each separately stated cause of action, count, or defense must specifically state: (1) Its number (e.g., ?first cause of action?); (2) Its nature (e.g., ?for fraud?); (3) The party asserting it if more than one party is represented on the pleading (e.g., ?by plaintiff Jones?); and (4) The party or parties to whom it is directed (e.g., ?against defendant Smith?).?? The failure to comply with this rule may, depending on the circumstances, render a pleading confusing and subject to a special demurrer for uncertainty.? (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, n.2.)
Plaintiff?s verified form complaint lists two causes of action.? The first is an unspecified ?Intentional Tort? and the second is a claim for General Negligence alleging ?[t]he failures of defendants to have properly cared for plaintiff?s property and to have properly notified him and properly disposed of his property,? citing Civ. Code ?2080 et seq.? While ?intentional tort? is a category of claims and not a recognized cause of action, this does not necessarily render the first cause of action so uncertain that Defendants cannot respond.? Even a total failure to label causes of action will not necessarily render claims uncertain.? ?[I]f the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: ?Although inconvenient, annoying and inconsiderate, the lack of labels does not substantially impair (defendant?s) ability to understand the complaint.?? (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2, internal citation omitted.? See also Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 [?[E]rroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.?])
It is reasonably clear that the ?intentional tort? claim is an attempt to state a claim for conversion of unidentified personal property, a claim for trespass to chattels (labeled ?Count Two,? Trespass to Personalty) which should be pled as a separate cause of action, and a claim for ?Claim and Delivery? (labeled ?Count Three?) which is pled as a remedy for a conversion claim and is not a separate claim or ?count.?
?The wrongful exercise of dominion over the personal property of another, whether it involves wrongful taking or lawful taking and wrongful withholding, constitutes the tort of conversion.? The injured party may elect either of two main types of actions: (1) specific recovery of the property, with damages, in a proper case, for its detention; or (2) damages for conversion based on the value of the property taken.?? (5 Witkin, California Procedure (5th ed. 2008) Pleading, ? 692.)? ?The first action, insofar as it needs a label or designation, might be termed ?specific recovery of personal property.?? [Citations.]? At an early date, however, California courts borrowed the statutory title of the provisional remedy of ?claim and delivery,? which gives immediate possession pending trial, and the suit is often called a ?claim and delivery action.?? . . . Proper or not, the use of the title ?claim and delivery? persists in complaints, judicial decisions, and form books.?? (Id.)? ?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.)
Trespass to chattels allows for recovery for interferences with possession of personal property not sufficiently important to be classified as conversion.? Though not amounting to conversion, the defendant?s interference, to be actionable, must nevertheless have caused some injury to the chattel or the plaintiff?s rights to it.? The plaintiff may only recover the actual damage suffered by reason of the impairment, rather than the full value of the chattel, as is the case with conversion.? (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350.? See also Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.)
The first cause of action for ?intentional tort? is not fatally uncertain since Defendants can reasonably determine whether to admit or deny the alleged conduct: each of the Defendants identifies what Plaintiff meant to allege as conversion even though that term did not appear in the Complaint.? However, the first cause of action does fail to state sufficient facts as Plaintiff has not identified any of the personal property at issue; has not identified which items are still unaccounted for and which items were allegedly taken and later returned to him (and therefore only ?trespassed? against rather than converted); and has not pled conversion and trespass to chattels as the separate causes of action they are.? Plaintiff?s argument that the challenges to his pleading must all be overruled or denied because Defendants have not specially demurred is rejected as incorrect.? Defendants may assert that the claims alleged fail to state sufficient facts.
- Demurrer by Defendant County and Defendant Betts
County demurs to the entire Complaint on the grounds that it fails to state sufficient facts because the Government Tort Claims Act (Gov. Code ?810 et seq.) bars claims against it and that no ground for vicarious liability has been adequately stated.? Betts demurs on the ground that both causes of action fail to state sufficient facts as alleged against him.
The Tort Claims Act states that a public entity is not liable in tort except as provided by statute.? (Gov. Code, ?815(a).)? Government Code section 815(a) ?abolishes all common law or judicially declared forms of liability? for public entities.? (See Legislative Cmt. to Gov. Code, ?815; In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688.)? ?In order to state a cause of action for government tort liability, ?every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.] Duty cannot be alleged simply by stating, ?defendant had a duty under the law?; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or ?enactment,? the statute or ?enactment? claimed to establish the duty must at the very least be identified.? [Citation.]? (Zuniga v. Housing Authority of the City of Los Angeles (1995) 41 Cal.App.4th 82, 96.)
Gov. Code ?815.2(a) states: ?A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.?? This makes the doctrine of respondeat superior applicable to public employers.? (See C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861; Eastburn v. Regional Fire Protection Auth. (2003) 31 Cal.4th 1175, 1183.)? However, when there is no showing that a public employee engaged in conduct that would render the employee liable to the plaintiff, there is no basis for imposing vicarious liability.
In addition to the other flaws described above, the first cause of action does not allege that either County or Betts specifically took possession of any of Plaintiff?s unidentified property, so no claim for conversion or trespass to chattels is presently stated against either of them.
The second cause of action for General Negligence also fails to state sufficient facts against these two defendants.? County can only be vicariously liable through Betts, and the Complaint has not established that Betts breached a duty of care owed to Plaintiff under Civ. Code ?2080.? Betts is not alleged to have ?found? and taken charge of ?a thing lost.? The Complaint alleges (at IT-1(g)) that Suess falsely told Betts that personal property belonging to some unknown person had been left blocking hangar M-8.? Civ. Code ?2080.7 states that ?[t]he provisions of this article have no application to things which have been intentionally abandoned by their owner.?
The argument by Plaintiff in opposition that Betts (and County) can be liable for aiding and abetting other defendants in taking his property is not a basis for overruling the demurrer.? Aiding and abetting is not alleged in the Complaint. ?California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted. . . .? ?The words ?aid and abet? as thus used have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained.??? (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145-1146, emphasis in original, internal citations omitted.)? ?In the civil arena, an aider and abettor is called a cotortfeasor.? To be liable as a cotortfeasor, a defendant must have knowledge and intent.? . . .? A defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he or she knew that a tort had been, or was to be, committed, and acted with the intent of facilitating the commission of that tort.?? Of course, a defendant can only aid and abet another?s tort if the defendant knows what ?that tort? is.? . . .? [T]he defendant must have acted to aid the primary tortfeasor ?with knowledge of the object to be attained.??? (Id. at 1146, emphasis in original, internal citations omitted.)? The Complaint?s verified allegations (at IT-1(g)) are that Suess falsely told Betts that an unknown person had abandoned property that was blocking hangar M-8.? If Suess and Betts were acting in concert, there would be no need for Suess to lie to Betts.
The boilerplate allegation in the Complaint at IT-1(d) that each of the defendants was a co-conspirator of the others is also not sufficient to warrant overruling the demurrer.? Conspiracy is a distinct cause of action that is not pled in the Complaint.? ?In order to maintain an action for conspiracy, a plaintiff must allege that the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage.?? (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.)? ?[I]n California a civil conspiracy to commit tortious acts can, as a matter of law, only be formed by parties who are already under a duty to the plaintiff, the breach of which will support a cause of action against them?individually and not as conspirators?in tort.? Restated, in cases where the plaintiff alleges the existence of a civil conspiracy among the defendants to commit tortious acts, the source of substantive liability cannot arise out of participation in the conspiracy alone.?? (Chavers v. Gatke Corp. (2003) 107 Cal.App.4th 606, 614, emphasis in original, internal citations omitted.)
Plaintiff?s Objection to Reply Points and Authorities urges that the court either ignore or grant Plaintiff leave to respond to section A of the Reply Memorandum arguing that Plaintiff?s Complaint does not plead a cause of action for conversion or trespass to chattels.? Plaintiff relies on Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, which deals only with appellate review.? The matters argued in section A do address Plaintiff?s opposition and are not new issues of the type which must be raised, if at all, in moving papers. ?In any event, Plaintiff?s 6-page surreply goes beyond stating an objection and addresses the substance of County?s demurrer, and in the interest of efficiency, the court has considered these substantive points, thus obviating the need for the relief sought by the Objection.
The demurrers by the County and Betts are both SUSTAINED with leave to amend.? Thirty (30) days? leave to amend is granted to conform to the rulings below.
- Motion for JOP by Defendant Victory
A motion for JOP is the functional equivalent of a general demurrer but it is made after the time for demurrer has expired.? Except as provided by statute (CCP ?438), the rules governing demurrers apply. ?A defendant’s motion for judgment on the pleadings should be granted if, under the facts as alleged in the pleading or subject to judicial notice, the complaint fails to state facts sufficient to constitute a cause of action. We accept the complaint’s properly pleaded factual allegations as true and give them a liberal construction. ?We do not accept as true ?any contentions, deductions or conclusions of fact or law contained therein.??? (County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32, internal citations omitted.? See also Southern Calif. Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.)
As to the first cause of action for ?intentional tort? as presently pled it fails to state sufficient facts as noted above.? If Plaintiff intends to allege both conversion and trespass to chattels they should be pled as separate causes of action.? Plaintiff should allege what items of personal properly (if any) Victory is alleged to have taken and retained or disposed of (i.e., converted) and what items of personal property (if any) he is alleged to have taken and returned (i.e., trespassed upon).
As to the second cause of action, it fails to state sufficient facts to support a claim for General Negligence against Victory.? ?In order to establish negligence, a plaintiff must demonstrate a duty on the part of defendant, breach of that duty, causation and damages.? (Strong v. State of Cal. (2011) 201 Cal.App.4th 1439, 1449.)? Whether a duty of care exists is a question of law for the court even at the pleading stage.? (Id.? See also Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.)? There is no general duty to take care of another?s property or to control the conduct of another person.? The only specific basis for a duty of care identified in the second cause of action, Civ. Code ?2080, imposes a duty of care on ?one who finds a thing lost? and also elects to ?take charge of it.?? This does not support a negligence claim against Victory as it is contradicted by Plaintiff?s verified factual allegations.? Plaintiff alleges that Victory was summoned to the location where Plaintiff had left his unidentified personal property by Betts, the Director of Airport Administration, who allegedly encouraged Victory to take whatever he wanted from the items left there.? (See Complaint at IT-1(i).)? Victory therefore did not ?find a thing lost? and elect to ?take charge of it.?
As with the sustaining of a demurrer with leave to amend, when a motion for JOP is granted with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, and not to add entirely new causes of action.? (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)? To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend.? Absent prior leave of court, an amended complaint raising entirely new and different causes of action may be subject to a motion to strike.? (See also Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [?Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.?])? Plaintiff is expressly authorized to plead Conversion and Trespass to Chattels as separate causes of action.
Moreover, a court may take judicial notice of admissions or inconsistent allegations by a plaintiff in earlier verified pleadings in the same lawsuit and may disregard conflicting allegations in the operative complaint.? ?The general rule . . . is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading.?? (Shoemaker v. Myers (1990) 52 Cal.3d 1, 12-13.)
Victory?s reply was filed on May 20, 2016, in violation of Code of Civil Procedure section 1005(b), and was served by mail in violation of Code of Civil Procedure section 1005(c).? For these reasons, the court has not considered the reply.
Victory?s Motion for JOP is GRANTED as to both causes of action with 30 days? leave to amend.? (See CCP ?438(h)(2), stating that if a motion for JOP is granted with leave to amend ?the court shall grant 30 days.?)
- Motion for JOP by Defendant Suess
The first cause of action fails to state sufficient facts against Suess under either a conversion theory or a theory of trespass to chattels, as it fails to identify any property of which Suess took possession and retained or took possession and later returned to Plaintiff.? The second cause of action also presently fails to state sufficient facts against Suess in that it does not establish that Suess owed Plaintiff any duty of care under Civ. Code ?2080 that he breached.? Suess did not ?find a thing lost? as the Complaint?s verified allegations are that he knew at all times that the unidentified property belonged to Plaintiff.? Nor did he ?take charge of? the unidentified property.? The verified allegations are that Suess instead contacted Betts and told him that the unidentified property was blocking access to hangar M-8.? No other basis for a duty of care is alleged.
The argument in Plaintiff?s opposition that the Complaint adequately states claims against Suess because he was a joint tortfeasor with the other defendants is not supported by the existing allegations.? The Complaint at present does not state sufficient facts against any of the named defendants.? Also as previously noted the theory that all defendants were acting in concert is inconsistent with the verified factual allegation that Suess falsely informed Betts that he did not know who owned the apparently abandoned property.
Suess? motion is GRANTED as to both causes of action with 30 days? leave to amend.? (CCP ?438(h)(2).)? Plaintiff?s request for permission ?to amend his complaint to add contract actions against Mr. Suess only,? Opp. to Suess JOP motion at 9:22-23, is granted.? The addition of any other new causes of action will require a noticed motion for leave to amend.