Filed 3/29/22 Hajj v. Zahabian CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Reversed and remanded.

Mahoney & Soll and Paul M. Mahoney for Plaintiff and Appellant.

Law Office of Paul D. Toepel, Jr., and Paul D. Toepel, Jr., for Defendant and Respondent.

* * *

This appeal arises from the judgment entered in favor of defendant attorney, Sharona Zahabian, after the trial court sustained her demurrer against plaintiff Ahmad Hajj’s complaint alleging conversion. In an earlier litigation, Zahabian had, on behalf of her client, levied upon a default judgment against Hajj. Although the judgment was subsequently vacated and the money ordered returned, Hajj now alleges that the money has still not been returned.

We review the demurrer ruling de novo and conclude Hajj has sufficiently stated a claim against Zahabian. Accordingly, we reverse and remand this matter for further proceedings.

I

Factual and Procedural History

In 2017, Zahabian represented a client who is not a party to this case and levied on a default judgment against Hajj, obtaining $65,028 from an account owned by Hajj in 2018. It is undisputed the judgment was later set aside, in April 2019. Hajj alleges that Zahabian received and retained all or a portion of the levied sums.

Five months after the judgment was set aside, the trial court ordered Zahabian’s client to return the money to Hajj. According to Hajj’s complaint allegations in this case, Zahabian “failed and refused, and continues to fail and refuse” to return the money.

Hajj’s complaint in this case asserts two causes of action against Zahabian: for restitution and conversion. Zahabian’s demurrer to the complaint asserted Hajj’s allegations were uncertain, barred by the doctrine of res judicata, failed due to defect or misjoinder of parties, and failed to state facts sufficient for a conversion cause of action. Zahabian also filed a motion to strike Hajj’s allegations and requested the trial court to take judicial notice of portions of the earlier lawsuit’s court record. In his opposition to the demurrer, Hajj argued, among other things, that he had a right to restitution for the levied money, after the default judgment was vacated.

The trial court granted Zahabian’s request for judicial notice, sustained her demurrer, and granted Hajj leave to amend. In its minute order, the court stated that “the basis for both [of Hajj’s] causes of action is Ms. Zahabian’s conduct as counsel. Specifically, that she submitted documents to the court and to the sheriff’s office [to levy upon the earlier lawsuit’s default judgment before it was set aside], as counsel for a judgment creditor attempting to enforce a default judgment.” The court stated it appeared both causes of action were barred by the litigation privilege of Civil Code, section 47, subdivision (b), but that it was sustaining its demurrer on the basis of uncertainty because neither cause of action was clearly alleged. Although Hajj was granted leave to amend, he elected not to and the court subsequently entered the judgment from which Hajj now appeals.

II

Discussion

A. Standard of Review

“‘In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.’” (Mathews v. Becerra (2019) 8 Cal.5th 756, 768; see Code of Civ. Proc., § 589 [demurrers raise questions of law].)[1] “[W]e give the complaint a reasonable interpretation” and, unless its allegations are refuted by “judicially noticeable sources” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6), “we treat the demurrer as an admission by [the] defendant[] of all material facts properly pled in [the] plaintiff[’s] complaint—but not logical inferences, contentions, or conclusions of fact or law.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152 (Winn); see § 452 [“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties”].) “[W]hen a demurrer is sustained with leave to amend, but the plaintiff elects not to amend, it is presumed on appeal that the complaint states the strongest case possible” (Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 10.)

Although a demurrer can be sustained based on a defense appearing from the complaint’s allegations or any matter of which the court can properly take judicial notice (§ 430.30, subd. (a)), a bar must be shown on the face of the complaint to justify sustaining a demurrer on that basis. (See Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182-183 [concluding demurrer should have been sustained because statutory immunity necessarily barred plaintiff’s single claim]), citing CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 [a demurrer is not “the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible”]; accord, Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [“‘“In order for [a statute of limitations] bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ [Citation.]”].)

We affirm or reverse regardless of the trial court’s stated reasons (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry)) and reverse if a complaint states a cause of action under any possible legal theory. (See City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870; see also Aubry, supra, 2 Cal.4th at pp. 966-967; see also Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 [“‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond’”]; accord, Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [“‘A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures’”].)

B. Hajj Sufficiently Alleged a Conversion Cause of Action

“Today, the tort of conversion is understood more generally as ‘the wrongful exercise of dominion over personal property of another.’ (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 810, p. 1115; see, e.g., Steele v. Marsicano (1894) 102 Cal. 666, 669.) [¶] As it has developed in California, the tort comprises three elements: ‘(a) plaintiff’s ownership or right to possession of personal property, (b) defendant’s disposition of property in a manner inconsistent with plaintiff’s property rights, and (c) resulting damages.’ (5 Witkin, supra, Torts, § 810, p. 1115; Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.) Notably absent from this formula is any element of wrongful intent or motive; in California, conversion is a ‘strict liability tort.’ (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 144 (Moore); id. at p. 144, fn. 38 [‘“‘conversion rests neither in the knowledge nor the intent of the defendant’”’]; accord, Poggi v. Scott (1914) 167 Cal. 372, 375 [‘neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action. “. . . [T]he tort consists in the breach of what may be called an absolute duty”’].)” (Voris v. Lampert (2019) 7 Cal.5th 1141, 1150.)

In this case, Hajj alleges he owned the money levied upon, that Zahabian received but “failed and refused, and continues to fail and refuse” to return the money to Hajj, and that Hajj suffered dispossession of his money as a result. These allegations are adequate to withstand Zahabian’s demurrer.[2] The complaint contains factual allegations sufficient to apprise Zahabian of Hajj’s claims that he owned the money she obtained on behalf of her client; that the levy was wrongful; and that Hajj was harmed by her failure to return the money.

Lee v. Hanley (2015) 61 Cal.4th 1225 (Lee) is instructive. The complaint there alleged that, after an earlier litigation had ended, the defendant attorney wrongfully failed to return fees that had been advanced by his client, the plaintiff. (Lee, supra, 61 Cal.4th at p. 1230.) The California Supreme Court construed a statute of limitations[3] and applied it to affirm the reversal of a judgment following a sustained demurrer. (See id. at pp. 1229-1230, 1232-1237.)

The high court held the attorney’s demurrer had been erroneously sustained because the plaintiff’s allegations reasonably could be construed as supporting a conversion theory of liability that was not necessarily barred as a matter of law. (See Lee, supra, 61 Cal.4th at pp. 1229-1230 [“on at least one reasonable construction of the complaint, at least one of Lee’s claims is not time-barred” under the statute of limitations at issue there].) This was the case notwithstanding the fact that the attorney’s actions that allegedly justified liability were committed as plaintiff’s counsel. (Id. at pp. 1229-1230, 1236-1237 [no time bar because complaint allegations could be construed to assert conversion theory that did not depend on an asserted violation of the attorney’s professional obligations].) Thus, the fact that a defendant was acting as an attorney at the time of alleged wrongdoing is not by itself dispositive of liability at the demurrer stage of litigation.

The same reasoning applies here. Despite substantial questions as to whether some or all of Hajj’s allegations are ultimately barred—for example, by the litigation privilege, a statute of limitations, or theory of estoppel—the complaint, as reasonably construed, supports a conversion theory of liability against Zahabian. The allegations, on their face, and considering the facts properly judicially noticed, do not conclusively demonstrate a bar to recovery.[4] (Winn, supra, 63 Cal.4th at p. 152.) Accordingly, the demurrer should not have been sustained.

III

Disposition

The judgment is reversed and the matter is remanded for the trial court to conduct further proceedings consistent with this opinion. Appellant is entitled to his costs on appeal.

ZELON, J.*

WE CONCUR:

MOORE, ACTING P. J.

SANCHEZ, J.

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further undesignated statutory references are to the Code of Civil Procedure.

[2] On Hajj’s asserted first cause of action for restitution, although “we ignore ‘[e]rroneous or confusing labels . . . if the complaint pleads facts which would entitle the plaintiff to relief’” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387), we note that Hajj incorrectly attempts to distinguish the concept of “restitution” from “unjust enrichment.” None of his briefing citations support the point. “[T]here is no cause of action in California for unjust enrichment. ‘The phrase “Unjust Enrichment” does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.’ [Citation.] Unjust enrichment is ‘“a general principle, underlying various legal doctrines and remedies,”’ rather than a remedy itself. [Citation.] It is synonymous with restitution. [Citation.]” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.)

[3] Section 340.6, subd. (a).

[4] In the same vein, neither judicially noticeable sources nor the allegations in the complaint show grounds to conclude the demurrer could be properly sustained on any of the alternative bases Zahabian presented to the trial court. For example, without deciding whether all of the other requirements for claim preclusion can be satisfied in this case, we note that at least one of them implicate a factual issue not resolved in this case’s present posture. (See, e.g., DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 826 [“Joint and several liability alone does not create such a closely aligned interest” to satisfy the privity requirement of claim preclusion].)