Medina vs. Hernandez

103 Medina vs.

1. Demurrer to Complaint Hernandez

25-01515721 2. Motion to Strike Portions of Complaint

Defendants ANDREW HERNANDEZ and EDEN CIARAMITARO seek an order sustaining their demurrer to the 5-7th causes of action of Plaintiffs’ Complaint.

Demurrer is overruled as to the 5th, and 6th causes of action for Private Nuisance and Intentional Infliction of Emotional Distress. There are sufficient facts pled to put Defendants on notice of the claims pleaded against them.

Demurrer is sustained with leave to amend as to the 7th cause of action for Violation of Penal Code§496.

“[S]ection 496, subdivision (a) may be violated in either of two ways: (1) by buying or receiving ‘any property that has been stolen’ or (2) by ‘conceal[ing], sell[ing], withhold[ing], or aid[ing] in concealing, selling, or withholding any property from the owner.’” (People v. Brown (2019) 32 Cal.App.5th 726, 732 [citing § 496, subd. (a)].) “[E]ach of the prohibited acts listed in section 496, subdivision ([a]) are separate and distinct offenses.” (Ibid.) “In particular, [r]eceiving stolen property and concealing stolen property are separate offenses.” (Ibid.)

“While section 496(a) covers a spectrum of impermissible activity relating to stolen property, the elements required to show a violation of section 496(a) are simply that (i) property was stolen or obtained in a manner constituting theft, (ii) the defendant knew the property was so stolen or obtained, and (iii) the defendant received or had possession of the stolen

property.” (Switzer v. Wood (2019) 35 Cal.App.5th 116, 126, as modified (May 10, 2019).)

“Theft, in turn, is defined in section 484, subdivision (a), as follows: ‘Every person who ... shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property ... is guilty of theft.’” (Johnson v. Connie, LLC (2025) 113 Cal.App.5th 850, 855.) “To prove theft, a plaintiff must establish criminal intent on the part of the defendant beyond ‘mere proof of nonperformance or actual falsity.’” (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361–362.) “This requirement prevents ‘[o]rdinary commercial defaults’ from being transformed into a theft.” (Id., 362.) “If misrepresentations or unfulfilled promises ‘are made innocently or inadvertently, they can no more form the basis for a prosecution for obtaining property by false pretenses than can an innocent breach of contract.’” (Ibid.)

“The statute’s subdivision (c) authorizes treble damages, ‘costs of suit, and reasonable attorney’s fees’ for ‘[a]ny person who has been injured by a violation of subdivision (a).’” (Johnson v. Connie, LLC (2025) 113 Cal.App.5th 850, 855 [citing § 496, subd. (c)].)

Here, Plaintiffs plead:

71. Plaintiffs can bring a civil suit against Defendants for damages since Defendants stole Plaintiff’s property by lying about repayment of two kids mattresses, one king bed mattress, kids bunk beds, kids blankets and toys, two sofas, and retaining money under the false claim that Defendants would pay, a sum of $1,415.91 for just the king mattress set alone, under the invoices, gorging money from Plaintiffs. Plaintiff has demanded return of the money owed, and all related fees and costs to be repaid. Defendants to date have refused to repay any of these amounts, all obtained through fraud,

breach of contract, conversion, misrepresentation, and violation of Penal Code 496(c).

[Complaint¶71.]

Here, the facts of the Complaint seem to suggest there may have been a disagreement over how much money is owed to Plaintiffs after they moved. Perhaps Defendants (at most) converted Plaintiffs’ deposit. While Defendants may have withheld Plaintiffs’ money or deposit, there do not seem to be sufficient facts that Defendants stole the money or committed theft with a criminal intent.

Defendants also seek an order striking out eight (8) items from the Complaint.

As to ¶¶63, 65, 66, 67, 68 the language relates to punitive damages associated with the 5th and 6th causes of action which are both intentional torts. Motion is denied as to ¶¶63, 65, 66, 67, and 68.

As to ¶71, this relates to the 7th cause of action and is therefore moot.

As to ¶75, Plaintiffs pled, “75. This refusal was a breach, and was done in bad faith, entitling Plaintiffs to treble damages pursuant to Code.” This ¶ is contained within the 8th cause of action for Violation of Civil Code 1950.5. Defendants essentially argue that Plaintiffs’ own facts establish that there was justification for the deductions. Yet this argument is something that should be made on demurrer, or even MSJ, not a motion to strike. Motion is denied as to ¶75.

Finally, as to the Prayer for Relief, Plaintiffs seek punitive damages generally in the prayer, not as to the 3rd cause of action, specifically. As such, Motion is DENIED.

Plaintiff to give notice.