CONDIT vs ALVARADO-GIL, et al.

If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: The notice of demurrer does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not provide the correct address for this Court’s Dept. 53/54. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing, along with the correct address for this Court’s Dept. 53/54. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing in person, by Zoom or by telephone.

24CV017664: CONDIT vs ALVARADO-GIL, et al. 07/24/2025 Hearing on Demurrer to Cross-Complaint in Department 53

Plaintiff/cross-defendant Condit’s demurrer to the cross-complaint of Marie Alvarado-Gil and “Committee Alvarado Gil for Senate” (“Committee”) is ruled upon as follows.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific causes of action that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Moving counsel failed to comply with CRC Rule 3.1113(f), requiring a table of contents and a table of authorities when the memorandum exceeds 10 pages.

The cross-complaint at issue does not comply with CRC Rule 2.112(3) to the extent (1) the cross complaint appears to be brought on behalf of not only defendant Alvarado-Gil but also Committee and (2) the individual causes of action fail to specify which party or parties on whose behalf they are brought. Additionally, while there appears to be two separate cross-complainants (i.e., Alvarado-Gil and Committee), the body of the crosscomplaint uses throughout only the singular term “cross-complainant.”

Factual Background

This action arises out of plaintiff Condit’s employment with defendants Alvarado-Gil and the California State Senate. His complaint filed on 9/5/2024 asserts various causes of action for harassment, discrimination, retaliation as well as both injunctive and declaratory relief.

On 11/12/2024, the two named defendants each filed a separate answer to the complaint and defendant Alvarado-Gil, along with Committee, filed on the same date a cross-complaint against plaintiff Condit for assault, intentional infliction of emotional distress and conversion.

Plaintiff Condit now demurs both generally and specially to each cause of action in the cross-complaint. (Not. of Dem., pp.2-3.) An opposition was filed, ostensibly on behalf of defendant Alvarado-Gil only. (See, e.g., Opp. p.1:6, 12, footer; p.5:2-7.)

Legal Standards for Demurrer

A demurrer tests the legal sufficiency of the pleadings, raising issues of law, not fact, regarding the form or content of the opposing party’s pleading. (Code of Civil Procedure §422.10, §589.) A demurrer may only challenge defects on the face of the complaint or from matters that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) However, the face of the complaint includes facts contained in exhibits attached to the complaint. (Frantz v.

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Blackwell (1987) 189 Cal.App.3d 91, 94.) A demurrer can be utilized where a complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (Myers) (2001) 94 Cal.App.4th 963, 971-972.)

In reviewing the sufficiency of a complaint against a general demurrer, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. Matters which may be judicially noticed may also be considered. The complaint is to be given a reasonable interpretation, reading it as a whole and its parts in their context. (Farmers v. Zerin (1997) 53 CaI.App.4th 445, 451.) Consideration of extrinsic evidence or facts asserted in the memorandum supporting or opposing the demurrer is improper. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief, we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v.

Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Still, the plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action. (See, e.g. Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031; Sui v. Price (2011) 196 Cal.App.4th 933, 938.) The allegations must be factual and specific, not vague or conclusionary. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44.)

A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action - not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Finally, a demurrer may only be sustained where it disposes of an entire cause of action. (See, e.g., Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

Discussion

Worker Compensation’s “Exclusive Remedy.” Plaintiff Condit first contends that the cross-complaint’s causes of action for assault and intentional infliction of emotional distress (“IIED”) are barred by the “exclusive remedy” provision of the Worker Compensation Act (“WCA”) insofar as these alleged torts and the injuries allegedly resulting therefrom occurred while defendant Alvarado-Gil was in the course and scope of her employment and California worker compensation laws are to be liberally construed to maximize benefits for the protection of injured employees. (Mov. MPA,

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24CV017664: CONDIT vs ALVARADO-GIL, et al. 07/24/2025 Hearing on Demurrer to Cross-Complaint in Department 53

p.9:4-28.) According to the moving papers, any doubt is to be resolved in favor of the applicability of the WCA and against the right to sue for civil damages and as such, courts have held that a variety of workplace assault and battery claims are preempted by the WCA’s “exclusive remedy” provision. (Id., at p.9:28-p.10:25.) Still, plaintiff concedes there is an exception for “willful physical assault by the employer” but insists it is inapplicable here since plaintiff was not defendant Alvarado-Gil’s employer and since there was no specific intent to injure Alvarado-Gil. (Id., at p.10:25-p.11:25.)

The opposition counters by arguing that “a civil suit is permissible when an employee proximately causes another employee’s injury or death by a ‘willful and unprovoked physical act of aggression’” and that the WCA “does not shield an intentional tortfeasor from the consequences of his willful acts of violence and aggression merely because he is a coworker of his victim.” (Opp., p.8:10-20.) Instead, the WCA’s “exclusive remedy” clause “shields only employees who were “acting within the scope of employment” when they caused harm to their fellow co-worker” and thus, a “willful and unprovoked physical act of aggression” may be redressed through “a civil action for damages whenever an employee commits an intentional tort by physical conduct.” (Id., at p.8:20-25.)

According to the opposition, “[t]he aggressor need not commit a battery because bodily contact is not a significant factor” and thus, neither the assault nor IIED claims is barred by the WCA especially in light of the cross-complaint specific allegations about plaintiff Condit’s actions (i.e., a large former military officer who carries a concealed weapon, has a history of volatile behavior and drug use, had suggested playing a role in the disappearance and murder of another person, made various threatening remarks and engaged in other aggressive conduct toward Alvarado-Gil, etc. (Id., at p.8:25-p.9:20.)

The opposition further asserts that the two cases on which plaintiff Condit primarily relies are distinguishable inasmuch as neither involved any question about the sufficiency of a pleading but rather were appeals following jury trials. (Id., at p.11:1-9.)

After careful consideration of the factual allegations currently found in the crosscomplaint (which must be accepted as true for purposes of this demurrer) as well as the relevant case law bearing on the WCA’s “exclusive remedy” provision on which this demurrer relies, the Court overrules plaintiff Condit’s demurrer to the first two causes of action.

According to the cross-complaint, defendant Alvarado-Gil hired plaintiff Condit as her Chief of Staff in late 2022 and thereafter developed concerns about plaintiff Condit’s experience, judgment, job performance, physical limitations following an acute injury, possible abuse of medications and alcohol, absences from work and other conduct which resulted in a coaching/training program and later a report to the Human Resources Department of the State Senate. (X-Compl., ¶¶16-25.) Then in December 2023, plaintiff Condit came to a staff event apparently intoxicated and as a result of what transpired, defendant Alvarado-Gil asked for plaintiff Condit’s resignation in hopes

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of avoiding an involuntary termination. (Id., at ¶27.) It is alleged that in response, plaintiff Gill “became furious and loudly berated and threatened Cross-Complainant [sic], telling her “he knew ‘how to make people disappear’ and indicated he was personally responsible for the unsolved disappearance and murder of Chandra Levy.” (Id., at ¶28.) In light of prior threats plaintiff Condit had made toward defendant Alvarado-Gil, the latter believed the former was both close enough and angry enough that she reasonably feared she was about to be struck “in a fit of rage.” (Id.)

Additionally, given plaintiff’s physical size, history of carrying a concealed firearm and suggestion of being involved in the disappearance and murder of Chandra Levy, history of alcohol and drug abuse, and history of threats of violence, defendant Alvarado-Gil “began to fear for her life and for her family’s safety.” (Id., at ¶¶4-7, 29-30.)

In Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, the Fourth District Court of Appeal considered whether the plaintiff’s claims against her co-worker for assault and battery were barred by the WCA’s “exclusivity rule” found in Labor Code §3600. (Jones, at 1383.) The Court stated in pertinent part:

“As a general rule, an employee who sustains an industrial injury ‘arising out of and in the course of the employment’ is limited to recovery under the workers’ compensation system. [Citations.] We have observed that this rule of exclusivity is based on the ‘ “presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” ’ [Citation.] [¶] To prevent employees from circumventing the exclusivity rule by bringing lawsuits for work-related injuries against coemployees, who in turn would seek indemnity from their employers, the Legislature in 1959 provided immunity to coemployees. [Citation.]

For conduct committed within the scope of employment, employees, like their employers, should not be held subject to suit. [Citations.] [¶] There are, however, statutory exceptions to coemployee immunity. As relevant here, a civil suit is permissible when an employee proximately causes another employee’s injury or death by a ‘willful and unprovoked physical act of aggression’ [citation] . [Citation.] If an employee brings a lawsuit against a coemployee based on either of these exceptions, the employer is not ‘held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee.’ ” (Torres v.

Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001–1002, fn. omitted (Torres).) The term “aggression” suggests intentional harmful conduct. (Id. at p. 1005.) “[A]s a general rule a ‘willful and unprovoked physical act of aggression’ includes an intent to injure requirement.” (Id. at p. 1006.)

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In Torres, supra, 26 Cal.4th at p. 1008, the California Supreme Court ruled: “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer’s enterprise.” (Ibid.) It used as an example an earlier case that found “throwing [a] hammer at [a] person was within [the] scope of employment.” (Ibid.) Here, the wheelbarrow incident took place at the worksite, during the scope of McMinn's employment, and arose from a workplace dispute over use of the wheelbarrow.

The circumstances surrounding the wheelbarrow incident, and the injury Jones claims to have suffered, do not remotely approach the gravity of the hammer throwing example in Torres. “Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to ‘physical act[s] of aggression.’ [Citations.] ‘ “In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup.

These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.” ’ ” (Id. at p. 1009.) Accordingly, as a matter of law, the workers’ compensation exclusivity rule applies to Jones’s assault and battery cause of action. (Jones, at 1383-1384 (underline added for emphasis).)

As explained above, while the WCA’s “exclusive remedy” provision may be applicable to a party’s claim of injury against a co-worker, there are exceptions including “when an employee proximately causes another employee’s injury or death by a ‘willful and unprovoked physical act of aggression.’” Moreover, Torres confirms the “exclusive remedy” provision should apply to injuries stemming from carelessness and emotional flareups which are within the risks “inherent in the working environment” but the conduct described in the cross-complaint in the case at bar (which must be deemed true for purposes of this demurrer) go far beyond simple carelessness and a mere “emotional flareup” and a reasonably perceived threat to one’s life by one ostensibly capable of carrying out such an act cannot be fairly characterized as a risk “inherent in the working environment.” Accordingly, since both the assault and IIED causes of action are based at least in part on the above-cited allegations from Paragraphs 4-7 and 16-30 (see, X- Compl., at ¶¶34, 39), this Court finds plaintiff Condit’s reliance on the WCA’s “exclusive remedy” provision is unavailing in light of the current allegations which must be accepted as true here.

Assault. Plaintiff Condit contends this first cause of action for assault fails to set forth sufficient facts and is uncertain because “[w]ords alone can never constitute an assault” and all of the statements attributed to plaintiff amount to “nothing more than bloviating, venting, speculative puffery and tasteless remarks at best.” (Mov. MPA, p.12:4-16.) In

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short, coupled with the cross-complaint’s portrayal of plaintiff Condit as “a disabled and broken down person in physical distress who should not have even been working,” the facts alleged are insufficient to establish that defendant Alvarado-Gil could have had a reasonable belief about an “imminent threat of violence and physical injury” especially when “it was only after Condit was gone that she pieced together her theories and ‘subsequently’ became in fear.” (Id., at p.12:16-28.)

The opposition insists the above-cited quote, “[w]ords alone can never constitute an assault,” is not a statement of California law but rather mere dicta which plaintiff has taken out of its context which did not relate to the sufficiency of any pleading. (Opp., p.11:11-27.) Moreover, the cross-complaint alleges plaintiff Condit threatened physical harm to defendant Alvarado-Gil and based on the former’s conduct, statements, history of carrying firearms and his physical stature, the latter reasonably believed he was about to carry out his past threats, thereby establishing an actionable assault. (Id., at p.12:22-p.13:27.)

The demurrer to this cause of action is overruled as well. First, while the Tomblinson case cited in the moving papers indeed includes the phrase, “Mere words however threatening or profane will not amount to an assault,” the Court of Appeal did not intend this to be any self-standing statement of California law but rather it was merely quoting a portion of the jury instruction which had been given in the preceding trial. As such, plaintiff Condit’s reliance on this language as a basis for this demurrer is misplaced.

Second, the moving papers’ suggestion that the assault cause of action is premised on “mere words” ignores the totality of the allegations made in the cross-complaint which go well beyond mere words to encompass plaintiff Condit’s past conduct and threats against Alvarado-Gil, his physical size in comparison to hers, his history of carrying a firearm, his proximity to Alvarado-Gil and being “furious and loud[]” at the time of the incident, all of which could cause a person standing in the shoes of Alvarado-Gil to reasonably fear s/he was about to be struck “in a fit of rage” as alleged in Paragraphs 4-7 and 16-28.

These allegations must be accepted as true and when fairly construed as a whole, they are in this Court’s view sufficient to plead a prima facie claim for assault against plaintiff Condit.

While it is also suggested this assault cause of action is “uncertain,” the moving papers fail to provide any meaningful explanation why this is the case and thus, the demurrer on this ground shall be overruled. Still, the Court adds that current California law indicates that demurrers for uncertainty are disfavored and should be sustained only where the allegations are so muddled that the defendant cannot reasonably respond. (See, e.g., Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) However, the moving papers fail to persuade this Court that this assault cause of action is so muddled or unintelligible as to prevent plaintiff Condit from reasonably responding to same but to the extent he perceives any

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uncertainty or ambiguity in these allegations, plaintiff Condit remains free to conduct appropriate discovery in order to resolve it. (Id.)

Intentional Infliction of Emotional Distress. According to the moving papers, the IIED cause of action is uncertain and fails to set forth facts sufficient to state a cause of action because she failed to allege the “acts with great specificity” but instead offers “no facts describ[ing] the time, place, manner or setting of this December 2023 incident” and “the incident is described differently and unclearly between paragraphs 4 and 28.” (Mov. MPA, p.13:3-12.) Additionally, the statements attributed to plaintiff Condit are “exaggerated and inconsistent or are not sufficiently outrageous” nor do they demonstrate a threat against defendant Alvarado-Gil and in the end, the allegations “are simply too vague and not sufficient to be outrageous” especially liability for IIED ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ (Id., at p.13:16-p.14:5.)

According to the opposition, plaintiff Condit’s suggestion that the cross-complaint fails to describe the offensive conduct “with great specificity” ignores the fact that Paragraph 39 of this second cause of action incorporates all preceding allegations including those in Paragraphs 4-8 and 15-32, which provide “great specificity” as to the conduct on which the IIED cause of action is premised. (Opp., p.14:2-13.) With respect to plaintiff’s characterization that the statements attributed to him not being “sufficiently outrageous,” the opposition asserts that the authorities relied upon are inapposite and fail to establish that the IIED claim is subject to demurrer. (Id., at p.14:22-p.15:3.)

In any event, several courts including the California Supreme Court have held that threats of harm or death are indeed “outrageous” and thus, a sufficient basis for an IIED claim especially in light of the allegation that plaintiff knew defendant Alvarado-Gil had been in therapy and was known to be particularly susceptible to emotional distress. (Id., at p.15:4-27.)

Plaintiff Condit’s general and special demurrer to the IIED cause of action is overruled. As noted above, the moving papers primarily contend that the cross-complaint does not allege “with great specificity” the acts upon which this cause of action is based. The Court disagrees. Aside from the fact this purported heightened specificity standard for IIED claims appears to conflict with the general rule in California that a cause of action may permissibly be pled in “plain and concise language” which establish its prima facie elements (see, e.g., Code Civ.

Proc. §425.10(a); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), Paragraphs 4-7 and 16-30, as discussed above, describe with sufficient specificity the various acts which are attributed to plaintiff Condit and which are incorporated by reference into the IIED cause of action in Paragraph 39. These allegations, coupled with those found in Paragraphs 40-45, are specific enough to withstand demurrer but to the extent he desires greater clarity or specificity, plaintiff Condit remains free to pursue discovery through appropriate means.

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The Court also rejects plaintiff’s characterization that the December 2023 incident is described “differently and unclearly” in Paragraphs 4 and 28 but to the extent these paragraphs may have some variation, the moving papers fail to persuade the Court such variation is as a matter of law fatal to the IIED cause of action. After all, under well-established law, a court ruling on a demurrer must liberally construe the challenged pleading “with a view to substantial justice between the parties” (Ivanoff v.

Bank of America (2017) 9 Cal.App.5th 719, 726) and this rule of liberal construction means that the court draws inferences favorable to the pleading party, not the demurring party (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Moreover, the allegations of a challenged pleading are not to be read in isolation but rather construed as a whole in conformity with the rules found in Ivanoff and Perez. (See, e.g., Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) For these reasons, plaintiff’s claims that the statements attributed to him are “exaggerated and inconsistent” are unavailing and certainly do not justify an order sustaining the demurrer to this cause of action given that the cross-complaint’s factual allegations must be accepted true for purposes of ruling on this demurrer.

Finally, plaintiff Condit’s insistence that the statements attributed to him do not constitute a threat against Alvarado-Gil misses the mark insofar as this Court has already held that the cross-complaint adequately pleads a cause of action for assault and given the allegations of Paragraphs 4-7 and 16-28, this Court concludes that the statements and conduct now alleged in the cross-complaint are indeed sufficiently “outrageous” to plead a valid claim for IIED. As such, the Court rejects plaintiff’s suggestion this cause of action is premised on nothing more than “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”

Conversion. The moving papers maintain that this third cause of action also fails to plead sufficient facts and is uncertain since it does not set forth “the form or specific manner of currency or negotiable instrument, or the actual dollar amount allegedly converted” but rather an estimate of “approximately” $50,000 and since the alleged conversion in the form of “fraud” or “embezzlement” is not pled with heightened specificity applicable to fraud, including the “who, what, when, or where.” (Mov.

MPA, p.14:13-28.) It is further argued that this cause of action fails to state that Mr. Condit converted any money for his own use, as opposed to spending money on the campaign and regardless, as the cross-complaint identifies the money taken as belonging to the campaign rather than Alvarado-Gil herself, the latter does not have standing to bring this cause of action. (Id., at p.15:1-5.) According to plaintiff, “[e]ither Alvarado-Gil or the Committee should be dismissed from the third cause of action depending on who’s money it allegedly was.

This was not clearly pled.” (Id., at p.15:10-12.)

In response, the opposition contends the cross-complaint adequately pleads a claim for conversion especially when, according to the California Supreme Court, such a claim

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can be stated by “alleg[ing] that [defendant] is liable for conversion for simply refusing to return an identifiable sum of [plaintiff’s] money,” citing Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. (Opp., p.17:4-17.) While the moving papers suggest that a heightened pleading standard applies to the conversion claim, none of the authorities relied upon actually indicates this heightened pleading standard governs the conversion claim at issue here and none actually address a conversion claim. (Id., at p.17:18-22.) Finally, the opposition insists the question of whether plaintiff Condit converted the funds for his own use is to be resolved by the jury. (Id., at p.17:23-27.)

The Court will for the reasons explained below sustain the demurrer to the conversion cause of action. First, Paragraph 8 of the cross-complaint alleges plaintiff Condit “had stolen approximately $50,000 from [Alvarado-Gil’s] campaign,” while Paragraph 48 states that Alvarado-Gil and Committee “were deprived of property of which it [sic] would be in possession absent the conduct of Cross-Defendants ” The moving papers cite PCO, Inc. v. Christensen, et al. (2007) 150 Cal.App.4th 384 for the proposition that a conversion claim which is premised only on “estimates of money” is insufficient (Mov.

MPA, p.14:13-18) and notwithstanding the opposition’s response, the Court finds plaintiff has correctly cited current California law. Although discussed by neither side, the California Supreme Court in 2019 not only addressed the limitations of a conversion cause of action but also cited with approval the PCO, Inc. v. Christensen, et al. decision on which plaintiff Condit relief.

In Voris v. Lambert (2019) 7 Cal.5th 1141, the California Supreme Court considered whether the defendant’s failure to pay plaintiff’s wages gave rise to a claim for conversion, explaining in pertinent part:

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. [Citation.] But the law has been careful to distinguish proper claims for the conversion of money from other types of monetary claims more appropriately dealt with under other theories of recovery. Thus, although our law has dispensed with the old requirement that “each coin or bill be earmarked,” it remains the case that “money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved.” (Haigler, supra, 18 Cal.2d at p. 681; see PCO, Inc. v.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 (PCO).) “[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.” (Baxter v. King (1927) 81 Cal.App. 192, 194 (Baxter); see Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 231, 235 [rejecting conversion claim where the plaintiff could not identify specific sum but only approximate monetary losses]; PCO, at p. 397

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[same].)

Equally important, the “specific thing” at issue (Baxter, supra, 81 Cal.App. at p. 194) must be a thing to which the plaintiff has a right of ownership or possession—a right with which the defendant has interfered by virtue of its own disposition of the property. 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 in a specific, identifiable sum”; “the simple failure to pay money owed does not constitute conversion.” (Kim v.

Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284.) 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.’” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1041 (Sanowicz); see Imperial Valley L. Co. v. Globe G. & M. Co. (1921) 187 Cal. 352, 353–354.) (Voris, at 1151-1152 (underline added for emphasis).)

In light of the California Supreme Court’s approval of PCO, Inc. v. Christensen and affirmation that a conversion claim which does not identify a “specific thing” or amount of money but merely relies on an approximation of monetary losses, this Court sustains the demurrer to the cross-complaint’s third cause of action on this ground and need not address any of the parties’ other arguments bearing on this cause of action.

Disposition

For the reasons explained above, plaintiff Condit’s demurrer to the cross-complaint is OVERRULED except as to the conversion cause of action, the demurrer to which is SUSTAINED.

Where this demurrer has been sustained, leave to amend is GRANTED as this is the first challenge to the cross-complaint. An amended cross-complaint may be filed and served no later than 8/4/2025. Although not required by Court rule or statute, a copy of this order when the amended cross-complaint is presented for filing.

Cross-defendant to respond within 30 days if the amended cross-complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)