On 12/18/2017 a Other case was filed by DRAGO BARIC against US STORAGE CENTER, INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
US STORAGE CENTER INC
6/5/2019: Summons - Summons on Amended Complaint (1st)
6/5/2019: Complaint - Amended Complaint (1st) (Amended)
12/20/2017: Order on Court Fee Waiver (Superior Court)
12/18/2017: Summons - on Complaint
12/18/2017: Civil Case Cover Sheet
12/18/2017: Order on Court Fee Waiver (Superior Court)
12/18/2017: Notice of Case Assignment - Limited Civil Case
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
DocketAmended Complaint (1st); Filed by: Drago Baric (Plaintiff); As to: US Storage Center, Inc (Defendant)Read MoreRead Less
DocketSummons on Amended Complaint (1st); Issued and Filed by: ClerkRead MoreRead Less
DocketCase reassigned to Stanley Mosk Courthouse in Department 77Read MoreRead Less
DocketUpdated -- Request to Waive Court Fees: Result: Granted; Result Date: 12/20/2017Read MoreRead Less
DocketOrder on Court Fee Waiver (Superior Court); Filed by: Clerk; As to: Drago Baric (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: Drago Baric (Plaintiff); As to: US Storage Center, Inc (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Drago Baric (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketRequest to Waive Court Fees; Filed by: Drago Baric (Plaintiff)Read MoreRead Less
DocketCase assigned to Hon. Elaine Lu in Department 77 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 06/17/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 12/21/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
Case Number: 17STLC06013 Hearing Date: February 05, 2020 Dept: 26
Baric v. US Storage Center, Inc., et al.
DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT
(CCP §§ 430.10, 436)
Defendant US Storage Center, Inc.’s Demurrer to the First Amended Complaint is OVERRULED.
Defendant US Storage Center, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND WITH RESPECT TO THE LACK OF PLAINTIFF’S SIGNATURE AND THE ALLEGATIONS IN SUPPORT OF THE REQUEST FOR PUNITIVE DAMAGES. THE MOTION TO STRIKE IS DENIED AS TO THE CAUSE OF ACTION FOR “INTENTIONAL TORT.”
On December 18, 2017, Plaintiff Drago Baric (“Plaintiff”) filed this action for intentional tort against Defendant US Storage Center, Inc. (“Defendant”). On June 5, 2019, Plaintiff filed the First Amended Complaint.
Defendant filed the instant Demurrer to, and Motion to Strike Portions of, the First Amended Complaint on December 4, 2019. Plaintiff filed an opposition on January 23, 2020. Defendant filed replies on January 29, 2020.
The Court finds the Demurer and Motion to Strike are accompanied by a proper meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Dailey Decl., ¶¶2-7 and Exhs. A-B.) To the extent Plaintiff contends the meet and confer emails were sent to the wrong email address, he does not disavow receiving voice mail messages from defense counsel, to which he did not respond. (Opp., Baric Decl., ¶¶2-3.)
Defendant requests that the Court take judicial notice of The State Bar Court of California Review Department Opinion and Order in In the Matter of DRAGO CHARLES BARIC (Case No. 17-000030). The Court denies the request as irrelevant to the issues in the Demurrer and Motion to Strike.
Demurrer to First Amended Complaint
The First Amended Complaint sets forth a single cause of action for “Intentional Tort” based on the allegation that Defendant “fraudulently and maliciously” over-locked Plaintiff’s storage units in violation of the automatic stay of US Bankruptcy Court case number 2:17-bk-17346-VZ. (FAC, ¶IT-1.) Defendant allegedly deprived Plaintiff of access to his personal property for purportedly failing to pay storage fees, which were actually not owed, in order to run up a huge storage bill. (Ibid.) Thereafter, Defendant sold Plaintiff’s irreplaceable personal property, including family photos, videos and other mementoes. (Ibid.)
Defendant demurs to the First Amended Complaint on three bases: (1) failure to state a cause of action per Code of Civil Procedure section 430.10, subdivision (e); (2) uncertainty per Code of Civil Procedure section 430.10, subdivision (f); and (3) per Code of Civil Procedure section 430.10, subdivision (a), the Court lacks of jurisdiction to address violation of the bankruptcy court’s automatic stay, which must be addressed by the bankruptcy court.
As an initial matter, the special demurrers for uncertainty and lack of jurisdiction are not allowed in a Court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the special demurrers.
Regarding the failure to allege facts sufficient to state a cause of action, the Court notes that there is no such cause of action for “intentional tort.” However, the facts alleged do suggest certain torts that guard against injury to personal property including trespass to chattels and conversion.
Trespass to chattels may be alleged where the defendant’s intentional interference with the plaintiff’s possession of personal property caused the plaintiff injury. (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350-1351.) Similarly, the more serious cause of action for conversion involves (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1135.) The difference between the two torts, which seem nearly identical, is the degree of interference with the plaintiff’s property. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-1567.) Where for conversion the defendant will be responsible for the full value of the property and for trespass to chattles the defendant will be responsible only for the damage done if less than to the full value of the property. (Ibid.)
Here, the First Amended Complaint alleges that Plaintiff had a right of ownership and access to his personal property located in Defendant’s storage unit and that by wrongfully locking him out of the unit and thereafter selling the property, Defendant caused Plaintiff damages. (FAC, ¶IT-1.) This is sufficient to allege trespass to chattels or conversion.
Based on the foregoing, the demurrer to the First Amended Complaint is OVERRULED.
Motion to Strike
Defendant moves to strike both the entire First Amended Complaint and portions thereto, for the following reasons: (1) the First Amended Complaint is not signed by Plaintiff, in violation of Code of Civil Procedure section 128.7; (2) the punitive damages allegations fail to allege any facts constituting malice, fraud, or oppression; and (3) the cause of action for “intentional tort” is not recognized in California.
Lack of Signature
A motion to strike an unsigned pleading is improper in a court of limited jurisdiction. “Motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) “Under its plain meaning, section 92(d), by permitting only a particular type of motion to strike to be brought in a limited civil case, disallows all other motions to strike.” (1550 Laurel Owner's Assn., Inc. v. Appellate Division of Superior Court (2018) 28 Cal.App.5th 1146, 1154.)
However, the Court on its own motion may “strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) To the extent Plaintiff has not signed the First Amended Complaint as required by Code of Civil Procedure section 128.7, subdivision (a) and fails to correct the lack of signature promptly, the pleading may be struck. (Code Civ. Proc., § 128.7, subd. (a).)
Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code, § 3294, subd. (a).) A cause of action for conversion can support a request for punitive damages. (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.) However, the pleading must still include sufficient factual allegations to support the request.
The First Amended Complaint alleges in conclusory fashion that Defendant’s conduct was “fraudulent and malicious.” (FAC, ¶IT-1.) There are no facts alleged to support an assertion of fraud, such as a misrepresentation or concealment of material fact by Defendant. There is an allegation that Defendant “held Plaintiffs property ‘hostage’ for unpaid storage fees which were not actually owed.” (Ibid.) This might suggest fraud, but requires more detailed facts regarding what fees were charged and why they were not owed. Nor are there facts showing Plaintiff was subject to cruel and unjust hardship as required to show oppression. (Civil Code, § 3294, subd. (c)(2).) Finally, malice means conduct “which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (c)(1).) As there are no allegations that Defendant intended to injure Plaintiff, facts must be alleged to show that Defendant disregarded Plaintiff’s right to the personal property and that such disregard was despicable.
While the allegations show that Defendant acted willfully to prevent Plaintiff from accessing his personal property, the First Amended Complaint does not sufficiently allege that Defendant’s conduct was despicable. Despicable conduct is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 330.) Such conduct has been described as having the character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) More facts must be alleged to demonstrate that Defendant’s conduct was despicable, such as details regarding the unfounded charges.
Cause of Action for Intentional Tort
To the extent the Motion to Strike seeks to strike the cause of action for intentional tort, this is already raised in the Demurrer, and therefore an improper ground to strike the First Amended Complaint. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike.”].)
The Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND WITH RESPECT TO THE LACK OF PLAINTIFF’S SIGNATURE AND THE ALLEGATIONS IN SUPPORT OF THE REQUEST FOR PUNITIVE DAMAGES. THE MOTION TO STRIKE IS DENIED AS TO THE CAUSE OF ACTION FOR “INTENTIONAL TORT.”
Defendant’s Demurrer to the First Amended Complaint is OVERRULED.