GT'S LIVING FOODS, LLC VS. BAKERSBODEGA, INC.

Tentative Rulings

Case Number: ****6530    Hearing Date: May 18, 2021    Dept: C

GT’S LIVING FOODS, LLC v. BAKERSBODEGA, INC.

CASE NO.:  ****6530

HEARING:  5/18/21

#7

TENTATIVE ORDER

Plaintiff GT’s Living Foods, LLC’s motion for summary adjudication is DENIED.

Moving Party to give NOTICE.

Plaintiff GT’s Living Foods, LLC moves for summary adjudication pursuant to CCP ; 437c.

Defendant’s evidentiary objections are overruled. (CRC ; 3.1354(b).)

A Plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once met, the burden then shifts to the Defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP ; 437c(p)(1).)

Plaintiff’s complaint alleges that Plaintiff had property stolen from it by Erick Garcia, who sold the stolen property to Defendant Bakersbodega, Inc. The Complaint asserts causes of action for:

1. Violation of Penal Code ; 496

2. Conversion

Plaintiff moves for summary adjudication of the Conversion cause of action.

To succeed on a cause of action for Conversion, Plaintiff must prove that: 1) the plaintiffs ownership or right to possession of personal property; 2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiffs property rights; and 3) resulting damages." (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

"Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial. The basis of a conversion action ' "rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the action.” (Los Angeles Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1387.)

The rule of strict liability applies equally to purchasers of converted goods, or more generally to purchasers from sellers who lack the power to transfer ownership of the goods sold. That is, there is no general exception for bona fide purchasers. (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177,1181.)

Plaintiff submits the following evidence:

· GT"s Living Foods, LLC (formerly Millennium Products LLC) purchased, paid for and received the Royal Sugar brand from Pearson Sales, who is the only company that sells this brand and type sugar on the open market. (Plaintiff’s Separate Statement (PSS) 1-2; Dave Decl., Ex. A.)

· On 9/28/16, Plaintiff received an anonymous phone call indicating that Erick Garcia was stealing sugar from Plaintiff GT's Living Foods, LLC and selling the sugar to Coast 2 Coast. (PSS 3.)

· Between 3/18/15 and 9/27/16, Coast 2 Coast purchased Royal Sugar Brand from Erick Garcia. (PSS 4; Ex. 3, Rodriguez Depo; Fanucchi Decl., Ex. E.)

· In total, Defendant Coast 2 Coast purchased sugar in the amount of $225,931.48, via invoice from Erick Garcia to Defendant Coast 2 Coast, paid Erick Garcia via checks for this sugar, and received said sugar by signing the invoices. (PSS 5; Defendant Coast 2 Coast Reponses to Request for Production of Documents; Coast (08.22.18)-00153, Coast (08.22.18)-00232-(08.22.18)-00276); Fanucchi DecI., Ex. F.)

· Coast 2 Coast was forced to tum over all evidence of the sale and purchase of Royal Brand sugar form Erick Garcia to Coast 2 Coast. (PSS 7; Fanucchi Decl., Ex. H.)

· Coast 2 Coast assisted in setting up a sting operation that led to the arrest of Erick Garcia and his accomplices. (PSS 8-9; Fanucchi Decl., Ex. I.)

The court finds Plaintiff has met its initial burden of production.

Defendant now has the burden in opposition to produce evidence that would create a triable issue.

Defendant initially contends that Plaintiff has not established that it is the owner of the product because “Millennium Products LLC” appears on the invoices. However, on 6/8/17, Millennium Products, LLC legally changed its name to GT's Living Foods, LLC, and amended its registration with the California Secretary of State. (Dave Decl., ¶ 2.) Millennium Products, LLC is now known as GT's Living Foods, LLC and all debts, liabilities, claims, lawsuits, etc. belong to GT's Living Foods, LLC. (Id. at ¶ 3.)

Defendant also contends that there is no evidence that the bags of sugar that Defendant bought from Torus Trading, Inc. via Erick Garcia, were the same sugar that Plaintiff contends was converted. Defendant submits the following evidence:

· The white granulated sugar that Coast 2 Coast purchased and sold was commonly traded in its industry and readily available from several vendors so that the only way to tell where the sugar sourced from was the branding that a manufacturer or wholesaler used to label its package. (Lopez Decl., ¶¶ 3, 5, 6, and 14.)

· Absent the packaging branding, or some other unique identification of the supplier, it was impossible to tell where the product was sourced from; there was simply no difference between the white granulated sugar Coast 2 Coast purchased for resale from several different vendors including Torus Trading, Inc. via Mr. Erick Garcia and the white granulated sugar readily available in all local grocery stores. (Lopez Decl., ¶ 3.)

· There were no marks on the bags purchased by Coast 2 Coast from Torus Trading, Inc., that indicated it had purchased “Royal” brand from Torus Trading, Inc. via Mr. Erick Garcia. (Lopez Decl., ¶¶ 6, 7, and 15.)

· “Royal” brand white granulated sugar is sold through numerous distributors including via Mexico. (Id. at ¶ 15.)

· During the sting operation, there was also present fifty pound brown bags of white granulated sugar Defendant had purchased from Garcia and other vendors on prior occasions. (Id. at ¶ 6; Ex. 2.) Neither the Vernon Police Department or Plaintiff asked to inspect, recover, test, analyze, photograph, or otherwise took any interest in those bags of sugar Plaintiff now claims it owned and wants to recover against Defendant on its conversion claim. (Id. at ¶¶6, 7, and 9.)

The court finds that triable issues exist regarding whether Defendant Coast 2 Coast purchased “Royal” Brand sugar from Garcia. Most of the invoices in Ex. F to Fanucchi’s Declaration lists “Sugar Gran Cane Star,” and do not identify the sugar as “Royal” brand. Further, Lopez attests that the “Royal” brand white granulated sugar is sold through numerous distributors including via Mexico. (Lopez Decl., ¶ 15.)

Accordingly, motion for summary adjudication is DENIED.