Case Number: BC587375??? Hearing Date: February 21, 2017??? Dept: 92




Case No.: BC587375


Defendants, B&H INGLEWOOD TOW, INC. and ROBERT VAN LINGEN?s Demurrer to First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

1. Background Facts

On July 8, 2015, Plaintiffs Roland Leroy Reese and Romanah Holmes-Bey (?Plaintiffs?) filed a complaint against Defendants B&H Inglewood Tow, Inc., Robert Van Lingen, and Does 1-10 for (1) grand theft; (2) illegal seizure; (3) conversion (theft); and (4) intentional infliction of emotional distress. On August 31, 2015, Defendants B&H Inglewood Tow, Inc. and Robert Van Lingen (?Defendants?) filed a demurrer to the complaint. On August 29, 2016, the Court sustained the demurrer with leave to amend, finding the complaint to be uncertain as to Defendants. Plaintiffs filed a First Amended Complaint (?FAC?) on September 16, 2016, alleging the same causes of action.

2. Demurrer Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) ?A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., ?? 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A ?demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.? (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc. ? 430.41.)

The Court notes Defendants have satisfied the meet and confer requirement. (See Stucker Decl., ?? 8-9, 13.)

3. Demurrer to FAC

Defendants demur on the grounds that the FAC is uncertain. Defendants contend the lack of clarity in pleading and inconsistency between allegations renders the FAC doubtful regarding the theory of liability as to Defendants, basis for recovery, and other material matters. Defendants argue that, as in the original complaint, the FAC is devoid of any factual allegations against Defendants indicating any wrongful action by Defendants. Defendants contend that Plaintiffs assert any alleged wrongdoing by the LA Sheriff?s Department in violating Plaintiffs? rights should be the responsibility of Defendants. Defendants argue that even if Plaintiffs could show violation of a right by the LA Sheriff?s Department, Defendants are contracted and act as agents of the LA Sheriff?s Department such that it cannot be held responsible to third persons as a principle for actions within the course and scope of his agency unless he is personally involved in the transaction or enters into a written contract in the name of his principal without authority, none of which are alleged by Plaintiffs. Defendants argue Plaintiffs admitted Defendants released the vehicle to Plaintiffs and thus it is unclear how Plaintiffs have been damaged at all, much less in the amount of $50,000. Defendants also contend that Plaintiffs fail to allege any facts indicating Defendants wrongfully withheld their property. Defendants argue that because they released the vehicle to Plaintiffs in accordance with the law, it is unclear what Plaintiffs? basis for recovery is. Defendants further contend that because Plaintiffs inconsistently refer to Defendants and LA Sheriff?s Department interchangeably, this lack of clarity and inconsistency renders the FAC doubtful as to material matters and creates uncertainty as to which parties the allegations are against. Defendants argue it is clear from the allegations that the LA Sheriff?s Department is the one who seized and impounded the vehicle.

Plaintiffs have not filed an opposition.

The Court finds the FAC is uncertain as to Defendants. Plaintiffs allege Defendants wrongfully withheld their vehicle for two days and required them to pay $198.00 before the release of their vehicle. (See FAC, ?? 21, 27.) Plaintiffs allege Defendants? seizure violated their Fourth Amendment right to be free from unreasonable seizures, their constitutional right to travel, and their right to due process. (See id., ? 22.) However, the Court finds Plaintiffs still fail to allege facts demonstrating Defendants? withholding of their vehicle for two days was indeed wrongful. All the factual allegations regarding misconduct pled by Plaintiffs refer to alleged wrongful actions by the LA Sheriff?s Department. Although Plaintiffs allege Defendants acted in concert with the LA Sheriff?s Department for unlawful towing of their vehicle by not doing their due diligence in seeking the registered owner?s information prior to towing Plaintiffs? vehicle, Plaintiffs also allege Defendants towed Plaintiffs? vehicle based on the LA Sheriff?s Department?s instructions and that the LA Sheriff?s Department?s impounding of the vehicle violated their right to travel and due process rights. (See id., ?? 22, 25.) Any alleged wrongful towing is thus still based on allegedly wrongful acts by the LA Sheriff?s Department, not Defendants. The allegations of failure to act with due diligence also do not go towards establishing Plaintiffs? causes of action for grand theft, illegal seizure, conversion, and intentional infliction of emotional distress. Furthermore, as Plaintiffs? allegations provide Defendants released the vehicle after payment of $198.00 to Defendants and $93.00 to the LA Sheriff?s Department, the basis for Plaintiffs? injury in excess of $50,000 is also uncertain. As such, the demurrer to the complaint is sustained.

Although the Court generally grants leave to amend, the Court will not grant leave to amend in this case. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) Plaintiffs were previously granted leave to amend after the Court sustained Defendants? demurrer to the complaint on grounds of uncertainty. As the demurrer is being sustained on the same grounds and Plaintiffs have failed to file an opposition, the Court finds there are no indications of a reasonable possibility of successful amendment.

Accordingly, Defendant?s demurrer to complaint is SUSTAINED WITHOUT LEAVE TO AMEND.