This case was last updated from Los Angeles County Superior Courts on 04/21/2021 at 15:46:03 (UTC).

DONALD JUNCKER, ET AL. VS PREMIER WORLD TOURS, LLC

Case Summary

On 11/05/2020 DONALD JUNCKER filed a Contract - Business lawsuit against PREMIER WORLD TOURS, LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TIMOTHY PATRICK DILLON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2486

  • Filing Date:

    11/05/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TIMOTHY PATRICK DILLON

 

Party Details

Plaintiffs

JUNCKER DONALD

DAY MARGO

Defendant

PREMIER WORLD TOURS LLC

Attorney/Law Firm Details

Plaintiff Attorney

PLUMMER MARK

Defendant Attorney

SCHLICHTER KURT

 

Court Documents

Case Management Statement

4/15/2021: Case Management Statement

Case Management Statement

4/15/2021: Case Management Statement

Opposition - OPPOSITION TO DEMURRER AND MOTION TO STRIKE

4/15/2021: Opposition - OPPOSITION TO DEMURRER AND MOTION TO STRIKE

Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES DONALD JUNCKER AND MARGO DAY

4/15/2021: Notice of Posting of Jury Fees - NOTICE OF POSTING OF JURY FEES DONALD JUNCKER AND MARGO DAY

Notice of Case Reassignment and Order for Plaintiff to Give Notice

3/26/2021: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Motion to Strike (not initial pleading)

2/23/2021: Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike (CCP 430.10)

2/23/2021: Demurrer - with Motion to Strike (CCP 430.10)

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT

2/23/2021: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT

Stipulation and Order - STIPULATION AND ORDER STIPULATION OF THE PARTIES RE: PLAINTIFFS' AMENDED COMPLAINT' [PROPOSED] ORDER

1/27/2021: Stipulation and Order - STIPULATION AND ORDER STIPULATION OF THE PARTIES RE: PLAINTIFFS' AMENDED COMPLAINT' [PROPOSED] ORDER

Reply - REPLY DEFENDANT PREMIER WORLD TOURS, LLC'S JOINT REPLY TO PLAINTIFFS' JOINT OPPOSITION TO THE DEMURRER AND MOTION TO STRIKE

1/19/2021: Reply - REPLY DEFENDANT PREMIER WORLD TOURS, LLC'S JOINT REPLY TO PLAINTIFFS' JOINT OPPOSITION TO THE DEMURRER AND MOTION TO STRIKE

Opposition - OPPOSITION TO DEMURRER AND MOTION TO STRIKE

1/14/2021: Opposition - OPPOSITION TO DEMURRER AND MOTION TO STRIKE

Notice of Case Management Conference

11/12/2020: Notice of Case Management Conference

Proof of Personal Service

11/23/2020: Proof of Personal Service

Demurrer - with Motion to Strike (CCP 430.10)

12/4/2020: Demurrer - with Motion to Strike (CCP 430.10)

Summons - SUMMONS ON COMPLAINT

11/5/2020: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

11/5/2020: Civil Case Cover Sheet

Notice of Case Assignment - Unlimited Civil Case

11/5/2020: Notice of Case Assignment - Unlimited Civil Case

Complaint

11/5/2020: Complaint

15 More Documents Available

 

Docket Entries

  • 04/28/2021
  • Hearing04/28/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Why Action Should Not Be Reclassified To Limited Jurisdiction

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  • 04/28/2021
  • Hearing04/28/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 04/28/2021
  • Hearing04/28/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 04/15/2021
  • DocketCase Management Statement; Filed by PREMIER WORLD TOURS, LLC (Defendant)

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  • 04/15/2021
  • DocketOpposition (to Demurrer and Motion to Strike); Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 04/15/2021
  • DocketNotice of Posting of Jury Fees (DONALD JUNCKER and MARGO DAY); Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 04/15/2021
  • DocketCase Management Statement; Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 04/07/2021
  • DocketNotice (of Case Reassignment); Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 03/26/2021
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 03/02/2021
  • Docketat 08:30 AM in Department 73, Timothy Patrick Dillon, Presiding; Case Management Conference - Not Held - Continued - Stipulation

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13 More Docket Entries
  • 01/14/2021
  • DocketOpposition (to Demurrer and Motion to Strike); Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 12/04/2020
  • DocketProof of Service (not Summons and Complaint); Filed by PREMIER WORLD TOURS, LLC (Defendant)

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  • 12/04/2020
  • DocketDemurrer - with Motion to Strike (CCP 430.10) ((Res ID: 5970)); Filed by PREMIER WORLD TOURS, LLC (Defendant)

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  • 12/04/2020
  • DocketMotion to Strike (not initial pleading) ((Res ID: 5970)); Filed by PREMIER WORLD TOURS, LLC (Defendant)

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  • 11/23/2020
  • DocketProof of Personal Service; Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 11/12/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/05/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 11/05/2020
  • DocketSummons (on Complaint); Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 11/05/2020
  • DocketComplaint; Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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  • 11/05/2020
  • DocketCivil Case Cover Sheet; Filed by DONALD JUNCKER (Plaintiff); MARGO DAY (Plaintiff)

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Tentative Rulings

Case Number: 20STCV42486    Hearing Date: April 28, 2021    Dept: 73

DONALD JUNCKER, et al. vs. PREMIER WORLD TOURS, LLC 

Counsel for Plaintiffs/opposing parties:  Mark B. Plummer (Law Offices of Mark Plummer)

Counsel for Defendant/moving party: Kurt Schlichter, Steven Shonack, Natanel Safaradi (Schlichter & Schonack, LLP)

ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE RECLASSIFIED TO LIMITED JURISDICTION (issued 01/27/2021)

DEMURRER TO FIRST AMENDED COMPLAINT; Motion to Strike (filed 02/23/2021)

TENTATIVE RULING

OSC Ruling: The court finds that this case should be reclassified as a limited jurisdiction case and be transferred to a limited jurisdiction courtroom.

Demurrer: The demurrer is overruled as to the first, third, and fourth causes of action. The demurrer is sustained as to the second cause of action without leave to amend.

Motion to Strike: The motion to strike is granted in part and denied in part as follows (the court references the item numbers in Defendant’s notice of motion in this ruling):

· Granted/stricken: Item Nos. 1 (no right to general damages or emotional distress), 2 (not sufficient to allege punitive damages), 4 (section 3345 does not apply), 5 (conversion claim not viable), 6 (not sufficient to allege punitive damages), 7 (not sufficient to allege punitive damages), 9 (Plaintiff provides no basis for disgorgement damages on any remaining cause of action), 10 (section 3345 does not apply), 11 (no right to general damages on contract claim), 12 (not sufficient to allege punitive damages).

· Denied: Item Nos. 3 (attorney’s fees recoverable under §1770) and 8 (attorney’s fees recoverable).

DISCUSSION

On November 5, 2020 Plaintiffs Donald Juncker and Margo Day filed this action against Defendant Premier World Tours, LLC for:

C/A 1: Unlawful Business Practices

C/A 2: Conversion

C/A 3: Rescission

Plaintiffs, both over 70 years old, purchased a Great Lakes Tour from Defendant on January 29, 2020 for $6,940.00. The tour would take place on May 7, 2020. On April 13, 2020 Defendant cancelled the tour due to COVID-19, but only refunded $3,195.00. Defendant has refused to refund the remaining $3,745 to Plaintiffs despite numerous demands. Plaintiffs seek damages for the $3,745 plus attorneys’ fees, special damages, exemplary damages, and treble damages, fines, or civil penalties under Civil Code section 3345.

On December 4, 2020 Defendant filed a demurrer and a motion to strike. The court sustained the demurrer with leave to amend. On February 16, 2021, Plaintiff filed the operative first amended complaint, alleging an additional cause of action:

C/A 1: Unlawful Business Practices

C/A 2: Conversion

C/A 3: Breach of Contract

C/A 4: Recission

In the FAC, Plaintiff included a copy of the contract between the parties and reduced “refund” damages from $3,745 to $2,595.

On February 23, 2021, Defendant filed a demurrer and motion to strike. On April 15, 2021, Plaintiffs filed an opposition. On April 26, 2021, Defendant filed a reply.

ANALYSIS

I. This Court’s Jurisdiction

The court set an OSC why this action should not be reclassified to Limited Jurisdiction because on the face of the original complaint, this court (unlimited civil jurisdiction) does not have jurisdiction because Plaintiff’s claims do not exceed $25,000. The FAC has not reduced the unrefunded amount to $2,595. Despite Plaintiffs’ alleging various types of damages (most of which are stricken), on the face of the FAC, the allegations do not establish that Plaintiffs’ damages exceed $25,000. No party responded to the OSC. The court, therefore, finds that this case should be reclassified as a limited jurisdiction case and be transferred to a limited jurisdiction courtroom.

II. Legal Standard for Demurrer

A demurrer tests the sufficiency of whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)   A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Civ. Proc. Code §§ 430.30, 430.70.)  The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action.  (Hahn, supra, 147 Cal.App.4th at 747.)

III. First Cause of Action (Unlawful Business Practices- CLRA)

Defendant argues that Plaintiffs have not sufficiently pled their first cause of action because Civil Code § 1770(a)(5) and (16) do not apply based on the facts alleged since there are no misrepresentations. These sections paragraphs make it an unlawful business practice to:

· “Represent[_] that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.” Civ. Code § 1770(a)(5)).

· “Represent[_] that the subject of a transaction has been supplied in accordance with a previous representation when it has not.” (Civ. Code § 1770(a)(16)).

In the first amended complaint, Plaintiffs allege the following “false representations”

· “PREMIER WORLD TOURS, LLC had represented that if DONALD JUNCKER and MARGO DAY had purchased and paid for "Premier's Travel Protection Plan" whereby PREMIER WORLD TOURS, LLC guaranteed a full refund of all payments accept the TPP fee, but PREMIER WORLD TOURS, LLC now claims that the "Premier's Travel Protection Plan" that DONALD JUNCKER and MARGO DAY had purchased and paid for does not have that characteristic or use.” [FAC ¶ 11]

· “Attached hereto as Exhibit B to the First Amended Complaint is the April 13, 2020 letter from PREMIER WORLD TOURS falsely stating that the transaction had been supplied in accordance with a previous representation [i.e., a full refund] when it has not.” [FAC ¶ 12]

The statute states that CLRA “shall be liberally construed…” (Cal. Civ. Code §1760). Plaintiffs, therefore, have reframed their claims from Defendants not offering services (i.e., the tour) to Defendant making false representations that, if Plaintiffs had purchased the Premier's Travel Protection Plan, they would receive a full refund—which did not occur. Although thin, if all of Plaintiffs’ allegations are taken as true, the court finds that these allegations sufficiently allege a representation to induce a consumer to buy a good or service (the travel protection plan) and/or a false representation that a good or service had been provided (i.e., a full refund under Defendant’s representation under the travel protection plan. The demurrer is, therefore, overruled as to this cause of action.

IV. Second Cause of Action (Conversion)

Defendant argues that Plaintiffs have not alleged a claim for conversion because Plaintiffs have not alleged a specific sum nor do Plaintiffs sufficiently allege their immediate possessory right. The main issue that Defendant raises is that Plaintiffs’ claim is a claim based on contract for money, not a conversion (tort) claim.

Conversion is the wrongful exercise of dominion over the property of another. 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. Money can be the subject of an action for conversion if a specific sum capable of identification is involved.” (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)

The California Supreme Court has recently discussed and analyzed this issue in depth. (See Voris v. Lampert (2019) 7 Cal. 5th 1141, 1151). “The particular question before us concerns the applicability of the conversion tort to a claim for money.” (Id.) “Although the question was once the matter of some controversy, California law now holds that property subject to a conversion claim need not be tangible in form; intangible property interests, too, can be converted.” (Id.) “[W]here the money or fund is not identified as a specific thing the action is to be considered as one upon contract or for debt—or perhaps upon some other appropriate theory—but ‘not for conversion.”’ (Id.) This means that “[a] cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff’s possessory interest (Id.) “Were it otherwise, the tort of conversion would swallow the significant category of contract claims that are based on the failure to satisfy ‘mere contractual right[s] of payment.’” (Id. at 1151-52). “Contractual provisions may, of course, determine whether the plaintiff has a possessory right to certain funds in the defendant’s hands.” (Id. at 1152). “But to put the matter simply, a “plaintiff has no claim for conversion merely because the defendant has a bank account and owes the plaintiff money.” (Id.) “Consistent with this understanding, cases recognizing claims for the conversion of money “typically involve those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others.” (Id. at 1152). For example, therefore, a conversion claim does not lie for the non-payment of wages even though plaintiff is entitled to those wages. (Id. at 1152-53).

Defendant contends that the conversion claim fails because Plaintiffs have not sufficiently pled facts showing that: (1) Plaintiffs had an immediate right to possession of the subject funds, arguing that Plaintiffs do not even allege an underlying contract that would entitle them to a full cash refund; and (2) that Defendant converted a specific, identifiable sum (The allegedly owing (sic) money is a non-specific sum of money…It is not the kind of specific item that is properly the subject of a conversion claim.

(1) Immediate right to possession

A party need only allege it is ‘entitled to immediate possession at the time of conversion.’ However, a mere contractual right of payment, without more, will not suffice.” See Farmers, supra, 53 Cal.App.4th at 452 (italics in original) (citing to Imperial Valley Co. v. Globe Grain & Milling Co.[1] (1921) 187 Cal. 352 as an example).

This element has not been met. Under the reasoning of Voris, the gravamen of Plaintiffs’ claims, as presently alleged, are based on contract for the non-payment of an alleged debt, rather than the conversion of money. Once Plaintiffs paid for the tour, that money no longer belonged to Plaintiffs—Plaintiffs assert no legal possessory right to that money. Indeed, had the tour occurred, Plaintiffs would not be claiming that Defendant must return that money to Plaintiffs. Rather, Plaintiffs are alleging that, under the contract between them, because Defendant did not perform, Plaintiffs should be refunded. Like the plaintiff in Voris, even though the defendant may have owed plaintiff money, “the simple failure to pay money owed does not constitute conversion.” (Id.) There are no allegations that Plaintiffs entrusted their own money with Defendant, who agreed to hold or use it for Plaintiffs’ ultimate benefit. While a breach of contract claim may exist (which Plaintiffs curiously do not allege), Plaintiffs’ claims presently are not based in tort.

The cases that Plaintiffs cite to support their tort claim for conversion are inapposite. In those cases, the defendant held plaintiff’s money for plaintiff’s benefit—to be returned at a later date. In Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908 (1974), plaintiff engaged defendant, a common carrier, to transport her goods in interstate commerce in plaintiff’s van. The defendant in Schroeder, therefore, was holding and transporting, as bailee, plaintiff’s goods for plaintiff’s benefit. In Varela v. Wells Fargo Bank (1971) 15 Cal. App. 3d 741, 745, plaintiff alleged that a bank wrongfully repossessed plaintiff’s car, which contained plaintiff’s jewelry—i.e., the defendant wrongfully took, without plaintiff’s consent, property that belonged to plaintiff. Here, Plaintiffs do not allege that Defendant engaged in any act to try to take possession of Plaintiffs’ property without plaintiffs’ consent. Plaintiffs voluntarily gave Defendant their money in exchange for a tour.

(2) Specific, identifiable sum

“A plaintiff must specifically identify the amount of money converted, not that a specific, identifiable amount of money has been entrusted to the defendant . . . There is no requirement that the money have been held in trust—only that it be misappropriated.” See Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 216.

Plaintiffs have alleged conversion of a specific, identifiable sum, i.e., $2,595, the remainder of the funds not refunded.

Plaintiffs’ claim is ultimately premised on “a mere contractual right of payment” because the tour was cancelled. In the FAC, Plaintiff have clearly pleaded the terms of the contractual relationship which underlie their claim to an immediate possessory interest to the $2,595. Having already had an opportunity to amend, having made more clear in their FAC that their claim is premised on a mere contractual right of payment for which conversion is unavailable, and given that any further amendment would fall under the sham pleading doctrine, the court sustains the demurrer as to this cause of action without leave to amend.

V. Third Cause of Action (Breach of Contract)

Defendant argues that Plaintiff has failed to allege this cause of action because the express terms of the agreement establish that Defendant did not owe Plaintiff more than they refunded. Plaintiff argues that Defendant canceled the trip and had a right to do so under Covid-19. (FAC, ¶ 9). Plaintiff argues that this constitutes a medical reason due to Plaintiff’s health, such that the trip cancellation waiver may apply and Plaintiff would be entitled to a full refund. Again, although thin, the court finds that based on the allegations in the FAC, Plaintiff has sufficiently pled a cause of action for breach of contract. As for the merits of Plaintiff’s claims and/or Defendant’s defenses, that is an issue for discovery to uncover. On its face, the allegations are sufficient. The demurrer is overruled as to this cause of action.

VI. Fourth Cause of Action (Rescission)

Civil Code section 1689 provides various grounds on which a party may seek recission. Courts have considered recission a cause of action. (Paularena v. Superior Court of San Diego Cty. (1965) 231 Cal. App. 2d 906, 913 (“Obviously it is a cause of action to obtain relief on account of a rescission by the plaintiffs. The bringing of this action, as well as the allegations contained therein, constituted compliance with the requirements that the party rescinding must give notice of rescission and an offer to restore the benefits received under the contract.”))

While the previous complaint suffered because Plaintiffs have failed to allege the terms of the existence of an underlying, enforceable contract, Plaintiffs have now done so such that the right to rescission is available.

Defendant’s only argument is that the court previously found that “Plaintiffs do not allege that the parties agreed that if the tour were cancelled, Defendant promised to refund the amount to Plaintiff in its entirety.” In the FAC, however, Plaintiffs have alleged that if the tour were cancelled, they were entitled to a full refund under the trip cancellation waiver. The demurrer is overruled as to this cause of action.

VII. Motion to Strike

The court rules on Defendant’s items 1-12 of the notice of the motion to strike on pages v-vii as follows:

· Grant/stricken: 1 (no right to general damages or emotional distress), 2 (not sufficient to allege punitive damages), 4 (section 3345 does not apply), 5 (conversion claim not viable), 6 (not sufficient to allege punitive damages), 7 (not sufficient to allege punitive damages), 9 (Plaintiff provides no basis for disgorgement damages on any remaining cause of action), 10 (section 3345 does not apply), 11 (no right to general damages on contract claim), 12 (not sufficient to allege punitive damages).

· Denied: 3 (attorney’s fees recoverable under §1770), 8 (attorney’s fees recoverable).

First, Plaintiffs do not plead sufficient facts to constitute malice, oppression, or fraud and/or that Defendant authorized or ratified any wrongful conduct under California Civil Code §3294(b). The conduct about which Plaintiffs allege do not arise to the conduct necessary for punitive damages.

Second, Plaintiffs offer no basis for general/emotional distress damages for any of their remaining claims. The crux of Plaintiffs’ claim is a breach of contract claim, for which general/emotional damages are not generally available.

Third, Plaintiffs’ conversion claim fails such that any damages sought for conversion also fails.

Fourth, while Plaintiffs allege that they are entitled to treble damages under section 3294(b), they merely allege that they are seniors. They do not allege sufficient facts under section 3294(c) to be entitled to these damages—i.e., they do not plead that Defendant knew that the alleged $2,595 loss between the two plaintiffs caused the kind of life-changing financial injury to plaintiffs contemplated in Subdivision (c)(2), or that these plaintiffs were "substantially more vulnerable than other members of the public " per Subdivision (c)(3).

Finally, Plaintiff offers no legal basis for disgorgement damages.

The motion is granted in part and denied in part accordingly with leave to amend.


[1] In Imperial Valley, the plaintiff leased land to lessees, who were to grow cotton on the land and deliver ¼ of it to the plaintiff as rental. See Imperial Valley, supra, 187 Cal. at 353. The plaintiff sued several defendants, including a bank (First National Bank of Los Angeles), for conversion of ¼ of the cotton crop. Id. at 354. The California Supreme Court concluded that the complaint did not state a conversion cause of action against the bank “for the reason that it fails to allege that plaintiff owned [¼ of the cotton crop] alleged to have been converted by the bank,” and “because it is affirmatively alleged that [the bank] was holding warehouse receipts issued to one of the tenants entitled to its possession and delivered to [the bank] as security for an indebtedness owing to the bank, and this the bank had a right to do.” Id. at 354, 355. According to the California Supreme Court, “[t]he only cause of action stated is against [the tenants] for unpaid rent.” Id. at 355.

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