NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harold M. Hewell (Cal. SBN: 171210) hmhewell-hewell-lawfirm.com HEWELL LAW FIRM 501 W. Broadway, Suite 800 San Diego, California 92101 Tel: 619-235-6854 Fax: 888-298-0177 Attorney for Defendants, Janet Vohariwatt and Paul Vohariwatt
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION KEITH MATSON AND JOANNE MATSON,
Plaintiffs,
v.
JANET VOHARIWATT, PAUL VOHARIWATT, and DOES 1 through 5,
Defendants.
Case: 37-2011-00100977-CU-NP-CTL The Hon. Joel M. Pressman
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Civil Unlimited Lawsuit Filed: November 10, 2011 [Request for Judicial Notice]
Hearing Date: April 20, 2012 Time: 10:30 A.M. Department: C-66
_________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 1 of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES HEREIN: PLEASE TAKE NOTICE that, on April 20, 2012, at 10:30 a.m., counsel may be heard in Department C-66 of the above-captioned Court, the Hon. Joel M. Pressman presiding, located at 330 West Broadway, San Diego, California, 92101. Defendants Janet Vohariwatt and Paul Vohariwatt (Defendants) will, and hereby do, demur to the Complaint filed in this action by Plaintiffs Joanne Matson and Keith Matson (Plaintiffs). The demurrer will be based upon this notice, the Demurrer and Memorandum of Points and Authorities attached hereto, the Request for Judicial filed concurrently herewith, the file and record in this action, and such further and other matters as the Court may allow.
Respectfully submitted,
Dated: Thursday, January 19, 2012. HEWELL LAW FIRM
By: ___________________ Harold M. Hewell Attorney for Plaintiffs
(VIA FAX/ELECTRONIC TRANSMISSION)
_________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page of
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRERS DeIendants Janet Vohariwa tt and Paul Vohariwatt hereby dem ur to the Complaint in this action on the Iollowing grounds: 1. The Iirst Cause oI Action Ior malicious institution oI civil proceedings Iails to state I acts suIIicient to constitute a cause oI action. Cal. Civ. Proc. Code 430.10(e). 2. The Second Cause oI Action Ior co nversion Iails to state Iacts suIIicient to constitute a cause oI action Ior conversion. Cal. Civ. Proc. Code 430.10(e). 3. The Third Cause oI Action Ior intrusion into priva te aIIairs Iails to state Iacts suIIicient to cons titute a cause oI action Ior conversion. Cal. Civ. Proc. Code 430.10(e). 4. The Fourth Cause oI Action Ior unjust enrichment Iails to state Iacts suIIicient to constitute a cause oI action Ior conversion. Cal. Civ. Proc. Code 430.10(e). Respectfully submitted,
Dated: Thursday, January 19, 2012. HEWELL LAW FIRM
By: ___________________ Harold M. Hewell Attorney for Plaintiffs
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Tables - Page i of iii
I. Introduction............................................................................................................................ II. Facts as alleged in the Matson action................................................................................ III. Legal standard........................................................................................................................ IV. Argument................................................................................................................................ A. Plaintiffs have not stated a claim for malicious institution of civil proceedings................................................................................................................ 1. The Matsons have not established that the Vohariwatts lacked probable cause..................................................................................................... 2. The Matsons have not established a basis for the element of malice................................................................................................................ 3. The Matsons have not established that the wrongful foreclosure action terminated favorably for them........................................................... 4. The Matsons have not established that they suffered actual damages................................................................................................................ B. Plaintiffs have not stated a claim for conversion................................................ C. Plaintiffs have not stated a claim for intrusion into private affairs.................. D. Plaintiffs have not stated a claim for unjust enrichment................................... V. Conclusion..............................................................................................................................
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Tables - Page ii of iii
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Tables - Page iii of iii
Civil Code 47........................................................................................................... Civil Code 2323...................................................................................................... Code of Civil Procedure 430.10(e).................................................................... Code of Civil Procedure 430.30(a).................................................................... Code of Civil Procedure 430.50(a)....................................................................
Treatises:
1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts............................. 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 565 ..................................
11 2 2, 4 4 3
12 10
_________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On February 15, 2011, the Vohariwatts filed an action styled as Paul Vohariwatt vs. Washington Mutual Bank, Superior Court of California, County of San Diego, Case No. 37-2011-00085937-CU-OR-CTL (Wrongful Foreclosure Action), which is pending before the Honorable Gonzalo Curiel in Department C-60 of this Court. The original complaint filed by the Vohariwatts, who have been representing themselves in that matter, alleged various causes of action against Washington Mutual Bank and California Reconveyance Company. The claims were based on the Vohariwatts contention that property they owned at 31 Sandpiper Strand, Coronado, California 92118 (Property) had been wrongfully foreclosed upon and sold at trustees sale on February 3, 2011. On February 14, 2011, a Trustees Deed Upon Sale was recorded in the official records of the of the Recorders Office of San Diego County as Document No. 2011- 0084843. According to that document, the Property had been purchased for $1,150,000.00 at the trustees sale by KEITH & JOANNE MATSON HUSBAND AND WIFE AS JOING [sic] TENANTS. On March 30, 2011, the Vohariwatts filed a first amended complaint in which Keith Matson and Joanne Matson, the purchasers of the Property and the plaintiffs in the above-captioned action (Matson Action), were added as named defendants, in addition to Washington Mutual Bank and California Reconveyance Company. Subsequent to a hearing on a demurrer to the first amended complaint, the Vohariwatts filed a second amended complaint in which they named five defendants: California Reconveyance Company; Washington Mutual Bank; Keith Matson; Joanne Matson; and JP Morgan Chase Bank, N.A. Keith Matson and Joanne Matson were dismissed with prejudice from the Wrongful Foreclosure Action on October 7, 2011 pursuant to an order by the Honorable Lisa Foster following a hearing on a demurrer to the second amended complaint. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Complaint in the Matson Action arises from allegations made against the Matsons in the second amended complaint from the Wrongful Foreclosure Action, statements made in open court by Mrs. Vohariwatt at the hearing on the demurrer and related events. However, in pleading their Complaint, the Matsons have failed to state facts sufficient to support any cause of action alleged therein: malicious institution of civil proceedings, 1 conversion, intrusion into private affairs or unjust enrichment. Plaintiffs therefore bring this demurrer pursuant to Cal. Civ. Proc. Code 430.10(e). Plaintiffs respectfully contend that the demurrer should be sustained as to the whole Complaint, and that the Complaint be dismissed with prejudice in its entirety on the ground that the defects in pleading cannot be cured by amendment. II. FACTS AS ALLEGED IN THE MATSON ACTION According to the Complaint in the Matson Action, the Matsons purchased the Property owned by the Vohariwatts on February 3, 2011 at a trustees sale alleged in the Complaint to have been conducted pursuant to Cal. Civ. Code 2923. The Complaint states that the Vohariwatts received a Notice of Default for the Property on July 6, 2010, and a Notice of Trustees Sale on October 7, 2010. Complaint, 3-4. The Complaint further states that the Matsons went to the Property after purchasing it and found that a family was living as tenants in the home that was part of the Property, and that they were told by the tenants that they leased it from the Vohariwatts, who had collected one year of rent in advance based upon a monthly lease payment of $5,000.00. Complaint, 5-6. On February 15, 2011, the Vohariwatts filed the Wrongful Foreclosure Action against Washington Mutual Bank and California Reconveyance Company, asserting causes of action that included wrongful foreclosure and quiet title. The Vohariwatts
1 For the sake of clarity and simplicity, this cause of action will be referred to throughout this demurrer as malicious prosecution, even though it is out of favor with some courts because of its descriptive inadequacy. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amended the complaint on March 30, 2011 with a verified complaint that also alleged causes of action for wrongful foreclosure and quiet title. The Matsons had been added to the first amended complaint as defendants. On September 6, 2011, the Vohariwatts amended the complaint again. The verified second amended complaint (SAC), a copy of which is attached as an exhibit to the Matsons Complaint, retained the defendants named in the first amended complaint and added JP Morgan Chase Bank, N.A. as an additional defendant, Complaint, 7-9. On September 22, 2011, the Court joined the Matsons with California Reconveyance Company in a demurrer which was sustained on October 7, 2011; the Matsons were dismissed from Wrongful Foreclosure Action. Complaint, 10-11. The SAC contained an allegation that: The Matsons have been in contact with [California Reconveyance Company] prior to the trustee sale auction. Plaintiffs have learned further that The [sic] Matsons were also there to beg [California Reconveyance Company] to sell the property to them. SAC, p. 21, 39. Complaint, 12. The Complaint then alleges that the foregoing allegation from the SAC evidences the insinuation that permeates the SAC in that the MATSONS used illicit insider knowledge to collude with California Reconveyance Company and JP Morgan Chase to acquire the Property, and that this idea was baseless. It further states that: No reasonable person in the VOHARIWATTS circumstances would have believed this without some tangible supporting evidence and that the sole purpose of the allegation was to prop up the VOHARIWATTS lawsuit against the MATSONS. Complaint, 13. The Complaint admits that the Matsons do not know the motive behind the Vohariwatts decision to name them as defendants in the Wrongful Foreclosure Action, but goes on to speculates that, presumably it was retribution towards the people who purchased their old home. Building on this presumption, the Complaint further alleges that this strategy was effective in that it subjected the MATSONS to the stress, fright and expense of being personally sued and adds, without stating any facts to support the allegation, that [a]t the least, the VOHARIWATTS were simply indifferent to the fact _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that their claim against the MATSONS was unfounded. The Complaint continues to build on the admittedly presumed motive of retribution by stating that: Regardless, the suit was brought for an improper purpose. Complaint, 14. The factual allegations in the Complaint conclude with the claim that at the hearing on the demurrer, Ms. Vohariwatt: presented what she considered proof of the MATSONS collusion with the co-defendants. She read Keith Matsons personal financial information out loud to the court. This included information about his credit cards and a personal bank account that he held with JP Morgan & Co. in the 1990s (prior to its merger with Chase Manhattan Bank in 2000 and Washington Mutual in 2008). How she acquired this information is inexplicable and is deeply disturbing to the MATSONS. Complaint, 15. III. LEGAL STANDARD A complaint is subject to a demurrer if it fails to state facts sufficient to constitute a cause of action. Cal. Civ. Code 430.10(e). A demurrer may be taken to the whole complaint or to any of the causes of action stated therein. Cal Civ. Pro. Code 430.50(a); Skrbina v. Fleming Cos. (1966) 45 Cal. App. 4th 1353, 1364. When ruling on a demurrer, the Court looks to the face of the complaint, the exhibits attached to the complaint, and upon matters of which the Court may take judicial notice. Quick v. Pearsoll (2010) 186 Cal. App. 4th 371. For the purpose of ruling on a demurrer, material facts alleged in the complaint are treated as true. Serrano v. Priest (1971) 5 Cal. 3d 584, 591. The Court need not accept contentions, deductions or conclusions of fact or law. Id. Moreover, the Court need not accept factual allegations contradicted by matters of public record or other judicially noticeable facts. Cal. Civ. Proc. Code 430.30(a); Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal. App. 3d 369, 374-75. A demurrer must be sustained without leave to amend absent a showing by _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff that a reasonable possibility exists that the defect can be cured by amendment. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. IV. ARGUMENT A. Plaintiffs Have Not Stated a Claim for Malicious Institution of Civil Proceedings The elements of a cause of action for malicious prosecution are: (a) the institution of an action at the direction of the defendant ... (b) without probable cause and (c) with malice, (d) termination of the initial action favorably to the plaintiff ..., and (e) resulting damage. Drummond v. Desmarais (2009) 176 Cal. App. 4th 439, 449. The first element is not disputed. As noted above, the Vohariwatts are not represented by counsel in the Wrongful Foreclosure Action, so it is clear that their lawsuit was initiated by them and has been prosecuted by them to date. However, the Matsons have utterly failed to sufficiently plead the other elements of this cause of action. 1. The Matsons have not established that the Vohariwatts lacked probable cause Probable cause exists when a cause of action is, objectively speaking, legally tenable. [Citations.] (Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156, 161 [107 Cal.Rptr.2d 1].) The claim need not be meritorious in fact, but only `arguably tenable . . . . (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1019 [85 Cal.Rptr.3d 838], original italics (Paiva).) Drummond v. Desmarais, supra, 176 Cal. App. 4th 439, 453. Drummond goes on to note that the existence of probable cause is determined under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior case. Id. The Matsons only apparent attempt to establish lack of probable cause by the Vohariwatts is the SAC excerpt found in paragraph 12 of the Matson Complaint: The Matsons have been in contact with [California Reconveyance Company] prior to the trustee sale auction. Plaintiffs have learned further that The [sic] Matsons were also there to beg [California Reconveyance Company] to sell the property to them. SAC, p. 21, _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39. However, the Matsons offer no facts to refute this allegation. They just deny it and make unsupported and conclusory assertions: This idea was baseless. No reasonable person in the VOHARIWATTS circumstances would have believed this without some tangible supporting evidence.
Complaint, 13. 2
Given the lack of factual allegations refuting the excerpt from the SAC, it is ironic that the Matsons would even allege that No reasonable person in the VOHARIWATTS circumstances would have believed this without some tangible supporting evidence. (Emphasis added.) That is just what the Matsons are doing: they are asking the Court to believe that the excerpt from the SAC is baseless without providing some tangible supporting evidence. The truth or falsity of this particular allegation from the SAC is within the Matsons personal knowledge; the failure to plead any factual allegations to refute the excerpt speaks volumes. The allegations in the Complaint that [n]o reasonable person in the VOHARIWATTS circumstances would have believed this [the allegations in the excerpt from the SAC] without some tangible supporting evidence (Complaint, 13) is meaningless, as the Matsons were dismissed from the Wrongful Foreclosure Action on a sustained demurrer; the Vohariwatts never had an opportunity to present evidence that might have supported this allegation. Additionally, the allegation that No reasonable person in the VOHARIWATTS circumstances 3 would have believed that there were reasonable grounds to bring the lawsuit against the MATSONS (Complaint, 20) is completely absent of any supporting facts to support this conclusory allegation.
2 It is critical to note throughout this discussion that the Matsons were dismissed from the Wrongful Foreclosure Action after the Court sustained the demurrer. There were no findings of fact in the underlying case, and the Matsons make little effort to engage in any factually-driven pleading in the subject Complaint. 3 The Matsons make no effort to explain what they mean when they refer (twice) to a reasonable person in the VOHARIWATTS circumstances . . . , thereby rendering this allegation meaningless. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even the actual cause of action fails to plead facts in support of the claim that the SAC excerpt is baseless. Instead, the cause of action is little more than a collection of case law and short boilerplate allegations devoid of supporting facts; it is nothing more than unsupported conclusions of fact or law. The Matsons have utterly failed to plead sufficient facts to establish this second element of the malicious prosecution claim as set forth above in Drummond. 2. The Matsons have not established a basis for the element of malice Given the essential role of the malice element in a malicious prosecution claim, it is astounding that the Matsons plainly admit that they have no idea what prompted the Vohariwatts to sue them: The VOHARIWATTS motive in filing the lawsuit is currently unknown . . . . Complaint, 14. However that does not prevent them from speculating that the filing was motivated by retribution because the Matsons purportedly acquired the Vohariwatts Property. Id. The Matsons then take that sliver of pure speculation and plead it forward as if it was grounded in factual allegations: The VOHARIWATTS strategy was effective in that it subjected the MATSONS to the stress, fright and expense of being personally sued. At the least, the VOHARIWATTS were simply indifferent to the fact that their claim against the MATSONS was unfounded. Id. In one paragraph, the Matsons go from (a) an admission that they do not know the Vohariwatts motivation for suing them, to (b) making a motive up (retribution), (c) treating that speculative motive as established fact (the strategy was effective), and (d) asserting a backup motive of indifference, the polar opposite of malice, thereby undermining the malice element completely. Complaint, 14. (Emphasis added.) The Matsons then have the audacity to state, without any factual claims to support the allegations, that it is a fact that their claim against the MATSONS was unfounded and that [r]egardless, the suit was brought for an improper purpose. These fact-free assertions establish nothing but the Matsons predilection for conclusory contentions of purported fact. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The only fact that arises out of these allegations is that the Matsons have absolutely and completely failed to establish the element of malice (they even admit they dont know the motive for the lawsuit against them). All the case law cited in the pleading of the cause of action cannot rectify that; defining malice does not establish it. Neither do boilerplate statements such as The VOHARIWATTS initiated the lawsuit with malice. Complaint, 21. The Matsons have failed to establish malice, the third element of a malicious prosecution claim. 3. The Matsons have not established that the Wrongful Foreclosure Action terminated favorably for them The Matsons have not pleaded sufficient facts to establish that the underlying case was legally terminated in their favor as this concept is understood in the context of a malicious prosecution claim. In order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiffs innocence of the misconduct alleged in the lawsuit. [Citation.] The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort [of malicious prosecution]. [Citation.] Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if the termination reflects the opinion of either the court or the prosecuting party that the action would not succeed. [Citation.] Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827, emphasis added. As noted above, the Matsons dismissal from the Wrongful Foreclosure Action was achieved through a demurrer that was sustained by the Court. No fact-finder heard _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the evidence and dismissed the Matsons on the merits (or lack thereof) of the causes of action in the Wrongful Foreclosure Action. Apparently aware of this, the Matsons only make two obvious references to favorable termination: (a) The MATSONS demurrer was sustained on October 7, 2011 and the MATSONS were dismissed from the lawsuit (Complaint, 11); and (b) The lawsuit was dismissed in the MATSONS favor (Complaint, 19). They make no effort to plead facts that would establish that the termination reflect[s] the merits of the action and the plaintiffs innocence of the misconduct alleged . . . . This is entirely insufficient to establish a favorable termination of the Wrongful Foreclosure Action for the Matsons; they have failed to adequately plead the fourth element of a malicious prosecution claim. 4. The Matsons have not established that they suffered actual damages The only references in the Matsons Complaint to damages proximately caused by the alleged malicious prosecution are the following: that naming the Matsons as defendants in the Wrongful Foreclosure Action subjected the MATSONS to the stress, fright and expense of being personally sued (Complaint, 14) and the (again) boilerplate claim that [t]he MATSONS were harmed by the VOHARIWATTS lawsuit (Complaint, 22). But there are no facts alleged to support anything more than mild anxiety resulting from being a party to litigation. There is no reference to a need for medical intervention or treatment, or any claim of financial loss resulting from the alleged malicious prosecution. The Matsons have failed to establish the fifth and final element of their malicious prosecution claim. Given that they succeeded in establishing only the first element out of the five required to survive a demurrer, the Vohariwatts respectfully request that the Court dismiss this claim, and do so with prejudice, given that the Matsons have sufficiently pleaded only one of five elements necessary to establish a malicious prosecution claim. In light of this, Plaintiffs contend that the defects in the cause of action cannot be _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cured by amendment, and request that the malicious prosecution claim be dismissed with prejudice. B. Plaintiffs Have Not Stated a Claim for Conversion To plead a cause of action for conversion, a plaintiff must allege (1) plaintiffs ownership or right to possession of the property at the time of the conversion; (2) defendants conversion by a wrongful act or disposition of plaintiffs property rights; and (3) damages. See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, 565, pp. 2203- 2204. In paragraph 25 of the Complaint, the Matsons cite paragraph 46 of the SAC in support of their claim for conversion: The rent was prepaid to March 20, 2011. Together with the deposit, the tenant was entitled to stay in [the Property] until June 20 [2011]. Since the Matsons state in paragraph 5 of the Complaint that the tenants told them that the Vohariwatts had collected one year of rent in advance, it is reasonable to assume, based on the allegations in the Matsons Complaint, that the purported conversion took place in or around March 2010 when the Vohariwatts received the advance payment of one years rent. However, this would mean that the Matsons had no ownership or right to possession of the Property at the time of the alleged conversion; they claim to have acquired the Property on February 3, 2011 (Complaint, 26). Therefore, the facts alleged by the Matsons serve only to show that they had no ownership or right to possession of the property at the time of the conversion. Accordingly, they have failed to plead the first element of conversion. By that same token, the Matsons have failed to plead that the Vohariwatts engaged in conversion by committing a wrongful act or disposition of the Matsons property (the second element of conversion). According to the Matsons factual allegations, they had no ownership or right to possession of the Property until February 3, 2011, when they claim to have acquired the Property. That was, according to the allegations in the Complaint, approximately a year after the Vohariwatts received the _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 advance rent payment. Thus the Matsons have failed to establish the second element of a cause of action for conversion. Given the failure to establish the first two elements of a cause of action for conversion, there is no need for an analysis of damages, the third element. The Vohariwatts respectfully request that the Court dismiss this cause of action for conversion, and that it do so with prejudice, given that the Matsons have, in contrast to the cause of action for malicious prosecution, pleaded facts - very specific facts - that defeat this cause of action. Accordingly, it cannot be cured by amendment. C. Plaintiffs Have Not Stated a Claim for Intrusion Into Private Affairs The Matsons have asserted a claim for intrusion into private affairs based on their allegation that Mrs. Vohariwatt read Keith Matsons personal financial information out loud to the court (Complaint, 15). They plead this as evidence that Mrs. Vohariwatt penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, Mr. Matson. See Complaint, 33, quoting Sanders v. American Broadcasting Co. (1999) 20 Cal. 4th 907, 914-915. However, the Matsons admit that [h]ow she acquired this information is inexplicable . . . .; it cannot be known. Therefore, by their own pleading, the Matsons have conceded that they cannot show that Mrs. Vohariwatt committed any affirmative wrongful act by which she was exposed to the information read to the Court. They cannot even show that she actively obtained the information. Therefore this cause of action fails on the basis of the facts as pleaded. As for the fact that Mrs. Vohariwatt read the information in open Court, the Matsons have not pleaded any exception to Californias litigation privilege as set forth in Cal. Civ. Code 47. Thus, the privilege would bar any possible liability arising from that act. Since the Matsons have admitted that they cannot explain how the information came to Mrs. Vohariwatts attention, and they have not pleaded a viable exception to the litigation privilege, the Vohariwatts respectfully request that this cause of action also be _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dismissed, and that it be dismissed with prejudice, as the above demonstrates that the defective pleading cannot be cured by amendment. D. Plaintiffs Have Not Stated a Claim for Unjust Enrichment In California, [t]here is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, 1015, 1016, pp. 1104-1105.) McKell v. Washington Mut., Inc. (2006) 49 Cal. Rptr. 3d 227, 254. The Matsons have not pleaded a cause of action for restitution based on quasi- contract or imposition of a constructive trust, so this cause of action also should be dismissed. They cannot readily cure this aspect of the Complaint in light of other facts alleged therein, so the Vohariwatts respectfully request that the purported unjust enrichment cause of action be dismissed with prejudice. V. CONCLUSION Based on the foregoing arguments and authorities, Defendants respectfully request that the demurrer be sustained and the Complaint be dismissed with prejudice. Respectfully submitted,
Dated: Thursday, January 19, 2012. HEWELL LAW FIRM
By: ___________________ Harold M. Hewell Attorney for Plaintiffs