Danica Kalmbach vs Anna Davlantes et al

Case Number

24CV03445

Case Type

Hearing Date / Time

Mon, 03/10/2025 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

Danica Kalmbach  v. Anna Davlantes, et al.             

Case No. 24CV03445

Hearing Date: March 10, 2025                       

HEARINGS:           Defendants’ Demurrer to Plaintiff’s Complaint

                                   

ATTORNEYS:        For Plaintiff Danica Kalmbach: T. Wayne Harman, Megan S. Mallonee, Lavely & Singer

For Defendants Anna Davlantes and David Gamperl: Brant K. Berglund, Thyne Taylor Fox Howard, LLP

                       

TENTATIVE RULINGS:  

The demurrer of defendant to plaintiff’s complaint is overruled. Defendants shall file and serve their answers to the complaint no later than March 24, 2025.

Background:

This action commenced on June 20, 2024, by the filing of the complaint by plaintiff Danica Kalmbach (“plaintiff”) against defendants Anna Davlantes and David Gamperl (collectively “defendants”), for: (1) Rescission, (2) Declaratory Relief, (3) Common Count: Money Had and Received, and (4) Conversion.

As alleged in the complaint:

“Plaintiff is a mother of two . . . who was searching online for a vacation home rental so that her children could enjoy a mini-vacation on their spring break.” (Compl., ¶ 1.) “She found a number of homes on a vacation rental booking site, VRBO.com, including a home for rent that is owned by the Defendants . . ..” (Ibid.) Plaintiff “accidentally clicked on a button that reserved Defendants’ property” for $46,801.00. (Ibid.) Plaintiff immediately realized the mistake and immediately contacted Davlantes, explaining the mistake and requesting that Davlantes cancel the booking and notify VRBO of the mistake. (Ibid.) Defendants have refused to refund the money claiming that they had a no cancellation policy. (Ibid.)

Defendants demur to the complaint on grounds that: (1) The complaint improperly joins defendants as parties to this action; (2) The first cause of action for recission fails to plead the existence of a contract with requisite particularity, and (3) The fourth cause of action for conversion does not allege specific facts demonstrating ownership or any wrongful act by defendants.

Plaintiff opposes the demurrer.

Analysis:

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Defendants’ first grounds for demurrer is brought as to the entire complaint. The argument is that plaintiff has improperly named individual defendants despite the subject property being owned by an LLC. In support of this argument, defendants appear to rely on an attachment to the demurrer. There is no declaration regarding the document and no request for judicial notice.

Even if there had been a request for judicial notice, it would be denied.

“ ‘Judicial notice may not be taken of any matter unless authorized or required by law.’ ” (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.] Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.) StorMedia stated: “ ‘In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.]’ ” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 (Fremont).)

“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Freemont, supra, at p. 114.)

“In short, a court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Freemont, supra, at p. 115.)

Even if defendants are correct that the subject property is owned by an LLC, their argument fails because it is not a defect that appears on the face of the complaint. Further, defendants argument does not, in any way, negate independent liability on the part of defendants.

The demurrer based on defendants argument that the individual defendants were improperly named will be overruled.

Defendants’ next argument is that the first cause of action, for recission, does not plead the existence of a contract with the requisite particularity. Defendants rely on a flawed premise. The complaint makes clear that plaintiff does not believe that a contract was ever created. The allegations do, however, claim that defendants allege the existence of a contract.

“A party to a contract may rescind the contract in the following cases:

“(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.” (Civ. Code, § 1689, subd. (b)(1).)

The complaint alleges that, to the extent that a contract does exist, “recission of any such contract is warranted based on the unilateral mistake of material fact that existed at the time the contract was entered.” (Compl., ¶ 20.)

The pleading of the cause of action for recission is proper. As plaintiff explains: “If the fact-finder determines that a contract was formed, which Plaintiff disputes, then Plaintiff seeks to rescind it based on mistake.” (Opp., p. 8, ll. 9-10.)

The demurrer to the first cause of action will be overruled.

Defendants’ final argument is that the fourth cause of action for conversion fails to allege the necessary elements to sustain a claim for conversion.

“Conversion is generally described as the wrongful exercise of dominion over the personal property of another.  [Citation.] The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]” (Fremont, supra, 148 Cal.App.4th at p. 119.)

“ ‘A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]’ (see Haigler v. Donnelly (1941) 18 Cal.2d 674, 681; Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072–1074 [sales agent liable for conversion of proceeds from consignment sale of farm products]; Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 485 [“money cannot be the subject of a conversion action unless a specific sum capable of identification is involved”].) A “generalized claim for money [is] not actionable as conversion.” (Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 235; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 703, pp. 1026–1027.) (Id. at p. 395, (italics added); accord, Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202.)” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1042.)

Here, the complaint specifically alleges that plaintiff mistakenly paid $46,801.00 for the rental of defendants’ house. Defendants refused to return the funds.

The allegations are sufficient to constitute a cause of action for conversion. The demurrer to the fourth cause of action will be overruled.