SUSAN BRYAN VS. THE GREAT STAR THEATER ET AL

Matter on the Law & Motion / Discovery calendar for Friday, September 12, 2025, Line 10. [Part 1 of 2 of the tentative ruling.] CROSS DEFENDANT SUSAN BRYAN's DEMURRER to CROSS COMPLAINT.

Cross-defendant Susan Bryan's demurrer to the Cross-Complaint of The Great Star Theater ("GST") is sustained in part and overruled in part.

The issue under section CCP 430.10(e) is, taking the facts properly pleaded and properly noticed as true, does the challenged cause of action necessarily fail to state a claim for relief. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In assessing whether the complaint or cross-complaint states a cause of action, the court accepts all properly pleaded material facts, but not contentions, deductions, or conclusions of fact or law. (Minton v. Dignity Health (2019) 39 Cal.App.5th 1155, 1161.) The court liberally construes the pleading per CCP 452.

The demurrer to the first cause of action for conversion is overruled. The Cross-Complaint incorporates by reference the allegations of Bryan's complaint. (Cross-Complaint, par. 4; Pine Terrace Apartments, L.P. v. Windscape, LLC (2009) 170 Cal.App.4th 1, 17 ["[F]acts alleged in other pleadings in the same case may be incorporated by reference in subsequent pleadings therein."].) "The elements of a claim for conversion are (1) the plaintiff's ownership or right to possession of the property, (2) the defendant's wrongful act or disposition of the property that interferes with the plaintiff's possession, and (3) damages. (Archer v.

Coinbase, Inc. (2020) 53 Cal.App.5th 266, 276.) GST sufficiently alleges its ownership interest in the drinks and Bryan's wrongful disposition. (Complaint, par. 23 ["GST provided all of the bar supplies, the alcohol and other beverages"]; Cross-Complaint, pars. 6, 8 [Bryan gave away free drinks without GST's permission].) GST alleges damages. (Cross-Complaint, par. 10.) Bryan's concerns regarding GST's drink policy, whether Bryan or others actually purchased the drinks, etc. are matters for discovery.

In addition, while the parties argue about whether the tips were also converted, one cannot demurrer to part of a cause of action. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 856 fn. 14 ["Ordinarily, a general demurrer does not lie as to a portion of a cause of action and if any part of a cause of action is properly pleaded, the demurrer will be overruled."].)

The demurrer to the second cause of action for embezzlement is sustained with 20 days leave to amend. "[T]here is no civil claim for embezzlement under California law." (Mohebbi v. Khazen (2014) 50 F.Supp.3d 1234, 1257.) GST has leave to plead a cause of action for restitution. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 ["[R]estitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct."].)

The demurrer to causes of action three for tort of another and four for equitable indemnity are sustained with 20 days leave to amend. The First Amended Complaint alleges that GST converted electronic tips that were supposed to be paid to the bartenders. (First Amended Complaint, pars. 51-67.) The First Amended Complaint does not seek recovery for misapplied cash tips. The Cross-Complaint alleges that Bryan improperly pocketed cash tips. Since the First Amended Complaint does not seek to impose liability based on cash tips, there is no basis for these claims. GST has leave to amend to allege ultimate facts regarding how Bryan is jointly liable for the electronic tips.

Lastly, the court concludes that the DOE allegations are sufficient. In any event, movant does not represent the DOES and those parties can attack the pleadings if they become parties to the case. [End of part 1 of 2 of the tentative ruling.] =(301/CFM) | |