Lange v. Zambito
Filed 2/13/13 Lange v. Zambito CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ALEX LANGE,
Plaintiff and Appellant,
v.
SANDRA ZAMBITO et al.,
Defendants and Respondents.
D060896
(Super. Ct. No. 37-2010-00059676-
CU-OR-NC)
APPEAL from
a judgment of the Superior Court of
County, Timothy M. Casserly, Judge.
Affirmed.
This case
arises out of plaintiff Alex Lange's alleged loss of personal property after he
was arrested for trespassing and vandalism
at a property located in Valley Center, California (the subject property). In his third amended complaint, Lange, suing
in propria persona, attempted to plead causes of action for
intentional infliction of emotional distress against defendants PNC
Mortgage (PNC), its representative Kim Haynes, and Sandra Zambito, a
prospective purchaser of the property (collectively, defendants).
The
arguments advanced in Lange's four-page opening
brief are largely unintelligible and irrelevant to the appeal herein. However, it appears Lange is asserting that
the trial court erred in sustaining defendants' demurrer because Lange included
sufficient allegations to state his claims for conspiracy, conversion,
negligence, and intentional infliction of emotional distress against defendants
in the third amended complaint. We
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Because
this is an appeal from a judgment following an order sustaining a demurrer
without leave to amend, we take the factual background from the facts alleged
in Lange's third amended complaint and any exhibits thereto. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318 (Blank).)
On an
unknown date in 2010, Lange broke into the subject property. At that time, Lange brought items of his
personal property with him. At all times
relevant to Lange's third amended complaint, Mark and Jana Rabe owned the
subject property.
On May 30,
2010, Lange was arrested at the subject property and charged with trespassing
and vandalism. Lange alleges that after
the charges and related restraining order against him were dismissed, he sent a
letter to Zambito requesting the return of his personal property. In response, Lange allegedly received an
from Mark and Jana Rabe, informing him that his personal property had been
moved to a storage unit, to which he would be provided a key in exchange for
$2,240 for damage he caused to the subject property.
Lange
further alleges that on or about October 20, 2010, he received a letter from
Zambito's counsel informing him that PNC was the note holder for the subject
property. Lange alleges that on or about
October 28, 2010, he sent correspondence to Haynes, a representative of PNC,
requesting access to his personal property, but alleges that he did not receive
a response.
As will be
discussed in more detail, post, the
causes of action pled in the third amended complaint contained improper
conclusions and omitted elements essential to each claim.
After
several demurrers that were sustained with leave to amend, defendants filed
demurrers to the third amended complaint.
The court sustained the demurrers without leave to amend, finding that
none of Lange's causes of action stated sufficient facts to maintain a cause of
action for conspiracy, conversion, negligence, or intentional infliction of
emotional distress against defendants.
On November 17, 2011, the court entered a judgment of dismissal with
prejudice as to defendants.
DISCUSSION
I. STANDARD OF REVIEW
A demurrer
tests the legal sufficiency of the complaint, and the granting of leave to
amend involves the trial court's discretion.
Therefore, appellate courts employ two separate standards of review on
appeal. (Blank, supra, 39 Cal.3d
at p. 318.) First, the complaint is
reviewed de novo to determine whether it contains sufficient facts to state a
cause of action. (Hill v. Miller
(1966) 64 Cal.2d 757, 759.) In reviewing
the sufficiency of a complaint against a general demurrer, we assume the truth
of all properly pled material facts. (Blank,
supra, 39 Cal.3d at p. 318.)
However, we do not assume the truth of contentions, deductions, or
conclusions of fact or law. (Ibid.)
Second,
where the demurrer is sustained without leave to amend, reviewing courts
determine whether the trial court abused its discretion in doing so. (Kilgore v. Younger (1982) 30 Cal.3d
770, 781.) On review of a trial court's
refusal to grant leave to amend, the appellate court will only reverse for
abuse of discretion if it determines there is a reasonable
742.) The burden of proving that there
is reasonable possibility that the defect can be cured by amendment is on the
plaintiff. (Blank, supra, 39
Cal.3d at p. 318.)
II. ANALYSIS
A. The First Cause of Action for Conspiracy (Alleged Against Zambito)
Conspiracy itself is not a separate cause
of action; rather, it is a theory of vicarious liability under which certain
defendants may be held liable for torts committed by others. That is, all parties to a conspiracy are
jointly liable for tortious acts committed by any of them pursuant to the
conspiracy. (Okun v. Superior Court
(1981) 29 Cal.3d 442, 454.) The
complaint must allege acts that give rise to a tort cause of action without the
conspiracy; absent such allegation,
the conspiracy allegation is meaningless.
(Manor Investment Company v. F. W. Woolworth Co. (1984) 159 Cal.App.3d 586, 595.)
Conclusory allegations of a
"conspiracy" will not withstand demurrer. For example, merely pleading that
"defendants conspired to conceal improper loss valuations"
constitutes a bare legal conclusion as to which a demurrer lies. (State of California ex rel. Metz v. CCC
Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.)
Lange's conspiracy allegation in the
third amended complaint only alleges that "[d]efendants Sandra Zambito,
Jana Rabe, and Mark Rabe conspired to convert Plaintiff's property for
themselves and/or use the property to extort money from Plaintiff." Thus, Zambito's demurrer was properly
sustained as to this conclusory allegation of "conspiracy," because
there is no allegation of a separate tort cause of action upon which the
conspiracy claim is based.
B. The
Second Cause of Action for Conversion (Alleged
Against Zambito)
To state a cause of action for
conversion, a plaintiff must allege his or her
" ' "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." ' "
Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507 (Shopoff).) The foundation for
a conversion claim "rests upon the unwarranted interference by defendant
with the dominion over the property of the plaintiff from which injury to the
latter results. . . ."
(Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1065.)
In his third amended complaint,
Lange alleged he owns personal property, Zambito removed it from the subject
residence, and Lange suffered damages in the form of the loss of the
property. However, Lange's allegations
are insufficient to maintain a cause of action for conversion against Zambito,
as he has not alleged any facts showing that the alleged removal of property
was wrongful. (Shopoff,
supra, 167 Cal.App.4th at p. 1507.)
C. The
Third Cause of Action for Negligence (Alleged
Against Zambito)
To successfully plead a cause of
action for negligence, a plaintiff must allege the following elements: (1) the defendant had a legal duty of care to
the plaintiff; (2) the defendant breached the duty of care; (3) the defendant's
failure was the proximate or legal cause of the resulting injury; and (4) the
plaintiff was damaged. (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917.) A complaint is fatally defective if it fails
to sufficiently plead facts showing a duty of care, injury or damage. (Hegyes v. Unjian Enterprises, Inc.
(1991) 234 Cal.App.3d 1103, 1111.)
Lange failed to allege any facts
sufficient to establish Zambito owed him a duty of care. Lange only alleged in conclusory terms that
in causing harm to Plaintiff," and "It is difficult
for Plaintiff to comprehend that Defendants were not negligent in their
relationship to personal property they knew was not their own." There is no allegation that Zambito owed a
duty of care to Lange. Accordingly, Lange
has failed to state facts sufficient to maintain a cause of action for
negligence against Zambito.
D. The Fourth Cause of Action for Conversion (Alleged Against Haynes and PNC)
As stated,
to state a cause of action for conversion, a plaintiff must allege his
" ' "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." ' " (
Cal.App.4th at p. 1507, italics added.)
As with
Zambito, in the third amended complaint Lange fails to allege what wrongful act
was committed by Haynes and PNC with respect to his personal property. Rather, he only alleges that he has legal
ownership of his personal property and that after informing these defendants of
such, Lange received no response. Lange
then makes the conclusory allegation, without any underlying facts, that these
defendants converted his property by "preventing [Lange] from having
access to his property and/or by refusing to return the property after [Lange]
demanded its return." However, such
an allegation does not constitute a factual allegation that must be taken as
true on demurrer. Rather, exhibit 1 to
Lange's complaint specifically states that Lange's personal property had been
removed to a storage unit, and there are no allegations that defendants were
ever actually in control of Lange's personal property or the storage unit to
which the personal property had been purportedly removed. As alleged, PNC is the holder of the note on
the subject property, and Haynes is a representative of PNC. Lange has not alleged any wrongful acts by
either of these defendants and therefore the third amended complaint does not
allege the elements required to state a cause of action for conversion.
E. The
Fifth Cause of Action for Negligence (Alleged
Against Haynes and PNC)
Lange's
fifth cause of action alleges negligence by Haynes and PNC. Again, to successfully plead a cause of
action for negligence, a plaintiff must allege the
the defendant had a legal duty of care to the plaintiff; (2) the defendant
breached the duty of care; (3) the defendant's was the proximate or legal cause
of the plaintiff's injury; and (4) the plaintiff was damaged. (Ladd v. County of San Mateo, supra, 12
Cal.4th at p. 917.)
As with
Zambito, the third amended complaint does not allege Lange had a relationship
with PNC and Haynes which would give rise to a duty of care to Lange. Lange's negligence cause of action relies
solely on the allegation that these defendants knew that the personal property
belonged to Lange and did not arrange for its return. Accordingly, the trial court did not err in
sustaining PNC and Haynes's demurrer to the fifth cause of action for negligence.
Distress (Alleged Against All
Defendants)
To state a
cause of action for intentional infliction of emotional distress, a plaintiff
must allege the following elements: '' '
"(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff's suffering severe or extreme emotional distress;
and (3) actual and proximate causation of the emotional distress by the
defendant's outrageous conduct." ' "
(Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) For conduct to be outrageous, it " 'must
be so extreme as to exceed all bounds of that usually tolerated by a civilized
community.' " (Ibid.,
quoting Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209; also
see BAJI No. 12.74.)
Here, Lange
has failed to allege any facts to show that defendants' conduct with regard to
Lange's allegedly converted personal property was extreme and outrageous. Rather, Lange's sole allegation against
defendants is that they failed to respond to his request to regain possession
of his personal property. However, an
alleged nonresponse by defendants' to Lange's request for the return of his
personal property does not rise to the level of outrageous and extreme
defendants' demurrer to Lange's sixth cause of action.
DISPOSITION
The judgment is affirmed.
Defendants shall recover their costs
on appeal.
NARES,
Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
name="_ftn1" title="">[1]
He also named as defendants Mark
and Jana Rabe, who are not parties to this appeal.
