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-1 RANDY E. THOMAS, ESQ. / SBN: 78411
2
JONATHAN P. MARRS, ESQ. / SBN: 258525
JEANNINE I. MALDONADO, ESQ. / SBN: 285619
FILE-D 1‘
SAN MATEO COUNTY
LAW OFFICE OF RANDY E. THOMAS
3 18826 N. Lower Sacramento Road, Suite G JUL 2 7 2018
PO. Box 717
4 Woodbridge, CA 95258
Telephone: (209) 369—9255
5 Facsimile: (209) 369-9288
6 Attorney for Defendants
COURTESY TOW, ACTION TOWING,
7 BRIAN BANKS, TRACY KOEHLER, JOSE
BEDOLLA, DENNIS PERRY, AND DRIVER 62
/__ $2,
11— cur—115149
MPAS
Memorandum o! Polnts and Authorllies in Sup;
CALIFORNIA SUPERIOR COURT
”IIIIIIIIIIIIIIIIIIIIIIIIIIIII IN AND FOR THE COUNTY OF SAN MATEO
CHIAHO WU, an individual, on behalf Case No.: l7CIV05749
of those similarly situated,
13 ASSIGNED FOR ALL PURPOSES TO
Plaintiff THE HON. MARIE S. WEINER ,
14 COURTROOM 2E
V.
1 5 '
DEFENDANTS COURTESY TOW,
AARON K. WONG and JEREMY R. ACTION TOWING, TRACY
16 BRANDENBURG, individually and as KOEHLER, BRIAN BANKS, JOSE
members of the San Bruno Police BEDOLLA (INCORRECTLY
17 Department; DENNIS PERRY and JOSE NAMED JOSE BENDOLA), DENNIS
BENDOLA, employees of Action PERRY AND “DRIVER 62”’S
18 Towing or Courtesy Tow; “DRIVER MEMORANDUM OF POINTS AND
62”, an employee of Action Towing or AUTHORITIES IN SUPPORT OF
19 Courtesy Tow; ACTION TOWING, DEMURRER TO PLAINTIFF’S
‘
d.b.a San Bruno Auto Center, a SECOND AMENDED COMPLAINT
20 California Corporation, COURTESY
TOW, a California Corporation, BRIAN Case Filed: December 15, 2017
21 C. BANKS, owner of Action Towing; Hearing Date: September 10,2018
TRACY M. KOEHLER, owner of Time: 10:00am
22 Courtesy Tow; G. COOK, an individual; Department: 2E
I. KOHLVELD, an individual; SAN BY FAX
23 BRUNO POLICE DEPARTMENT, a
public entity; CITY OF SAN BRUNO, a :
24 municipal entity; and DOES 1- 100,
inclusive,
25
Defendants.
26
27
28
_i—
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT
TABLEOFCONTENTS
I
i
I. LEGALAUTHORITY.....................' ................ ....................... 1
II. iAIIIICIIJIVIIEJ\T1“ ........................................................................ 22
\DWQONM-bUJNv—I
A. STANDING
1. Plaintiff has noStanding to File a Cause of Action Against
Defendants Action Towing, Brian Banks, Dennis Perry
and Jose Bedolla Because Plaintiff is Not the Registered
OwneroftheAirstreamTrailer................; ................... 2
B.CLASSACTHNNCAUSESOFACTKEI
1. Plaintiffs Cause of Action for Conversion Fails Because
There Are Other Grounds for Which a Vehicle May be Legally
Towed Under Vehicle Code Section 22651 Other Than Expired
[\JHh—lb—‘HHHb—dl—‘HH
Registration (Count 10) ............................................. 3
2. Plaintiffs Cause of Action for Violations of Vehicle Code
Section 10652.5 is Subject to Demurrer as it Fails to Allege
Sufficient Facts for a Violation of Vehicle Code Section
10652.5 (Count 11) ................................................. 5
3. Plaintis Cause of Action for Vehicle Embezzlement
NM
and Concealment are Subject to Demurrer for Failing to
Allege Sufficient Facts to State a Cause of Action
(Count 12) ......... 7
4. Cause of Action Under Business and Professions Code
§ 1788.17 (Communication ofDebt to Third Parties Without
—ii—
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT
Consent) is Subject to Demurrer Because the Towing of Vehicles
does not Constitute a Consumer Credit Transaction under the
Business and Professions Code (Count 13) .................. 8
5. Cause of Action Under Business and Professions Code
\OOOQQM-RUJNH
§ 1788.17 (False Representation of Debt) is Subject to
Demurrer Because the Towing of Vehicles
does not Constitute a Consumer Credit Transaction
h
under the Business and Professions Code (Count 14) 9
6. Cause of Action Under Business and Professions Code
§ 1788.17 (Creating False Belief of Third Party
Debt Collection) is Subject to Demurrer Because
the Towing of Vehicles does not Constitute a Consumer
Credit Transaction under the Business and Professions
NNNNNr—lb—lb—dh—li—Ir—di—IHHt—d
#WMHOWWVQW—PWNHO
Code (Count 15) ................................................ 9
7. Cause of Action for violation of 18 U.S.C. 1962(0)
(Racketeering and Mail and Wire Fraud) is Subject to
Demurrer Because it Fails to Allege Sufficient Facts to
Constitute a Cause of Action (Count 16) ................... 1‘0
8. Plaintiff’ 3 Cause of Action for Violations of Business
and Professions Code § 17200 are Subject to Demurrer
MN
GNU]
for Failing to Allege Sufficient Facts to Constitute a
Cause of Action (Count 17) .................................. 12
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9. Plaintiff s Cause of Action for Violations of Business
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DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’5” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
and Professions code § 17200 are Subject to Demurrer
for Failing to Allege Sufficient Facts to Constitute a
Cause of Action (Count 18) .............................. , . .. 13
\OOOQO‘xUl-PLANb—I
10. Plaintiff’s Cause of Action for Violations of Business
And Professions Code § 17200 is Subject to Demurrer
As Tow Defendants are Not Implicated by Vehicle Code
Section 14602.6(a)(2) (Count 19) ........................... 13
C. INDIVIDUAL CAUSES OF ACTION
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1. Plaintiff 5 Cause of Action for Damage to Personal
..................... 15'
H Property is Subject to Demurrer (Count 1)
Plaintiff’s Cause of Action for Damage to Personal
>---
2.
Property is Subject to Demurrer (Count 2) ..................... 15
D—i.i—‘|-‘
III. CONCLUSION ....... .......................................................
,
15
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p...
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N
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DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’5” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
TABLE OF AUTHORITIES
Acre v. Kaiser Foundation Health Plan (2010) 181 Ca1.App. 4th 471, 487 10
Banks v. Department ofMotor Vehicles for Cal. (2006) 419 F.Supp.2d 1186, 1191 11
\OOO\IO\UIJ>U)[\)r—t
Barnett v. Fireman ’s Fund Ins. Co. (2001) 90 Ca1.App. 4th 500, 505
C& H [Foods Co. v. Hartford Insurance Co. (1984) 163 Ca1.App. 3d 596, 605
‘
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713
Dodd v. Citizens Bank of Costa Mesa (1990) 222 Ca1.App. 3d 1624, 1627
Doe v. Lincoln Unified School District (2010) 188 Ca1.App. 4th 758, 765
Falcon v. Long Beach Genetics, Inc. (2014) 224 Ca1.App. 4th 1263, 1281
Frantz v. Blackwell (1987) 189 Ca1.App. 3d 91, 94
George v. Automobile Club ofSo. Calif (2011) 201 Ca1.App. 4th 1112, 1130
Gouskos v. Aptos Village Garage Inc. (2001) 94 Ca1.App. 4th 754, 759
NNNNr—‘HHb—ib—IHHHh—Ir—l
Iae Vaccine Cases (2005) 134 Ca1.App.4th 438, 458
Javor v. Taggart (2002) 98 Ca1.App.4th 795, 810
Linder v. Thrifty Oil Co. (2000) 23 Cal. 4‘“ 429, 440
Mohebbi v. Khazen (2014) 50 F. Supp. 3d 1234, 1257
Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 CASth 1131, 1145-1146
Patrick v. Alacer Corp. (2008) 167 Ca1.App. 4th 995, 1015)
People v. Mercedes Benz Roadster (1963) 211 Ca1.App. 2d 842, 844
People v. Rodriguez (1986) 177 Ca1.App. 3d 174, 179
N
People v. Stuart (1969) 272 Ca1.App. 2d 653, 655
Ross v. Creel Printing and Publishing Co. (2002) 100 CA4th 736, 748
N
Scannell v. County ofRiverside (1984) 152 Ca1.App.3d 596, 605
‘V‘
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEI-ILER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
SecureInfi) Corp v. Telos Corp (2005) 387 F .Supp.2d 593,614 11
Thompson v. City ofPetaluma (2014) 231 Cal.App. 4th 101, 106—108 14
Tucker v. Pacific Bell Mobile Services (2012) 208 Ca1.App.4th 201, 211) 10
\DOONONUI-PUJNH
m
18 U.S.C. § 1962(c) 10
Business and Professions Code § 1788.17
Business and Professions Code § 1788.l7(e)
Business and Professions Code § 1788.17(f)
Civil Code -
§§ 3068 3072
Code of Civil Procedure § 367
Code of Civil Procedure § 431.30(a)
Nr—tt—Ib—Ip—Ii—Ii—Ii—Ip—Ih—Ii—n
Penal Code § 496(a)
-
Vehicle Code § 10652.5
Vehicle Code § 14602.6(a)(2) 13
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Vehicle Code § 22651(o)(1)(B)
Vehicle Code § 22852(a) 14
Vehicle Code '14
§ 2285205)
\
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VN
'VI-
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY,~AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES.
1.
LEGAL AUTHORITY
\OOONONUl-PUJNr—t
For purposes of a demurrer, the Court is compelled to accept the facts alleged on the
face of the complaint. CCP section 430.30(a); Scannell v. County of Riverside (1984) 152
Cal.App.3d 596, 605. A demurrer does not admit contentions, speculation or conclusions of fact
or law. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713; C & H Foods Co. v. Hartford
Insurance Co. (1984) 163 Cal.App.3d 1055, 1062. Therefore, conclusive allegations may be
"disregarded when the factual allegations and inferences indicate otherwise." Javor v. Taggart
(2002) 98 Cal.App.4th 795, 810. Where grounds for a demurrer exist, the burden is on the
plaintiff to demonstrate the manner in which the complaint may be amended to cure the defect.
Ross v. Creel Printing and Publishing Co. (2002) 100 CA4th 736, 748. Facts appearing in
exhibits attached to the complaint are given precedence over inconsistent allegations in the
NNNNNNl—‘HHHr—IHh—IHHb—l
complaint. Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 CA5th 1131, 1145-1146.
Our Supreme Court found it “settled” that courts are authorized to “weed['] out” legally
meritless class action suits prior to certification by demurrer. (Tucker v. Pacific Bell Mobile
Services (2012) 208 Ca1.App.4th 201, 211) When the substantive theories and claims of a
proposed class suit are alleged to be without legal or factual merit, the interests of fairness and
efficiency are furthered when the contention is resolved in the context of a formal pleading
(demurrer) (Id) Demurrers may serve “as a screening mechanism for improperly pleaded class
action allegations. (Id. at p. 212)
When a demurrer is sustained with leave to amend, the leave must be construed as
permission to the pleader to amend the causes of action to which the demurrer has been
-1-
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’s” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
sustained, not add entirely new causes of action. (Patrick v Alacer Corp. (2008) 167 CA4th
995, 1015. (Emphasis added). As noted, Plaintiff has added new causes of "action in his SAC for
which he is prohibited from doing. Consequently, in addition to the foregoing, all of Plaintiffs
\OOO\IO\U‘IJ>UJNt-‘
new causes of action are subject to demurrer on this ground as well.
11.
ARGUMENT
A. STANDING
1. Plaintiff has no Standing to File a Cause of Action Against
y—I
r—-
Defendants Action Towing,~ Brian Banks, Dennis Perry and Jose
)—I
Bedolla Because Plaintiff is Not the Registered Owner of the
Airstream Trailer
t—A
I—a
For all practical purposes, the registered owner is the real owner of the vehicle. (People
I—I
)—A
v. One (I 960) Mercedes Benz Roadster (1963) 211 Cal.App. 2d 842, 844) Code of Civil
)—d
Procedure section 367 states that “[e]very action must be prosecuted in the name of the real
b—l
party in interest, except as otherwise provided by statute.” A real party in interest ordinarily is
r—i
defined as the person possessing the right sued upon by reason of the substantive law. (Doe v.
N
Lincoln Unified School District (2010) 188 Cal.App. 4th 758, 765) [Emphasis Added]
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Attached as EXHIBIT A to Tow Defendant’s Request For Judicial Notice in Support of
N
[\J Demurrer to Plaintiff’s Second Amended Complaint is
a
copy of certified documents produced
N
by DMV in response to City Defendants’ subpoena. The page bates stamped 000006 entitled
N
DMV Vehicle Registration Information shows that Plaintiff Chiaho \7Vu sold the airstream
trailer for $500.00 to another person on 12/27/2016. As a result, Plaintiff was not the registered
owner on 7/6/ 17 and 7/7/17, the dates that Plaintiff’s vehicles were towed. Consequently, since
-
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DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM 01“ POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
t,
Plaintiff was not the registered owner of the airstream at the time it was towed, he has no
standing to sue concerning the airstream trailer. The only connection between Plaintiff and
Defendants Action Towing, Brian Banks, Dennis Perry, and Jose Bedolla was the towing of the
\DOO\IO\U‘I-I>U~)l\)»—‘
airstream trailer. Therefore, all causes of action as to these Defendants are subject to demurrer
without leave to amend pursuant to Plaintiffs lack of standing.
B. CLASS ACTION CAUSES OF ACTION
1. Plaintiff’s Cause of Action for Conversion Fails Because There Are
Other Grounds for Which a Vehicle May be Legally Towed Under
Vehicle Code Section 22651 Other Than Expired Registration (Count
‘
10)
Vehicle Code Section 22651 provides in pertinent part:
A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of
Part 2 of the Penal Code, or a regularly employed and salaried employee, who is
engaged in directing traffic or enforcing parking laws and regulations, of a city, county,
NI—IHF—‘HHHI—‘b—‘b—dr—l
or jurisdiction of a state agency in which a vehicle is located, may remove a vehicle
located within the territorial limits in which the officer or employee may act, under the
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following circumstances: .
.
(o)(l) When a vehicle is found or operated upon a highway, public land, or an offstreet
parking facility under the following circumstances:
(B) Displaying in, or upon, the vehicle, a registration card, identification card, temporary
receipt, license plate, special plate, registration sticker, device issued pursuant to
'
Section 4853, or permit that was not issued for that vehicle, or is not otherwise
lawfully used on that vehicle under this code. [Emphasis Added]
Vehicle Code Section 22651 provides numerous legal grounds for the towing of a
NM
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vehicle in addition to expired registration, such as the grounds set forth in Vehicle Code Section
22651(o)(1)(B). Consequently, the mere allegation in the SAC that Plaintiff had a vehicle that
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did not have a registration expired in excess of six months (Tow Defendants still deny that is the
. ~3-
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
case) does not necessarily mean there was not an independent legal ground for the towing of the
vehicle. ‘
In fact, Vehicle Section 22651(o)(1)(B) is directly on point with this case. Attached to
Plaintiffs original Verified Complaint as Exhibit C is a copy of the CHP-l80 regarding the
xoooumm-pwmp-l
Airstream Trailer. In the-notes at the bottom, it provides “Airstream Trailer parked next an
Orange LTL Trailer (CA# 4EZl491). Airstream (Unknown Plate) had other Trailer’s License
Plate, 4EZl491, Mounted to Rear. No Match on VIN.”
Further, Exhibit D to Plaintiffs original Verified Complaint is a copy of the CHP-180
regarding the utility trailer. In the notes at the bottom, it provides in pertinent part: “LTL Trailer
(CA# 4EZl49l) parked with no plate next an Airstream trailer that had LTL Trailer’s exp. Plate
mounted (plate switch) DMV records show LTL trailer exp 10/12. Towed for 22651(o) CVC.
Although for purposes of a general demurrer all allegations of the Complaint are treated
as true, facts appearing in exhibits attached to the complaint are given precedence over
inconsistent allegations in the complaint. (Moran v. Prime Healthcare Mgmt., Inc. (2016) 3
Cal.App. 5th 1131, 1145-1146) “Face of the Complaint” includes matters shown in exhibits
attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189
NNNNND—IHD—ih—lI—lb—lb—‘HHH
Cal.App. 3d 91, 94; Barnett v. Fireman ’3 Fund Ins. Co. (2001) 90 Cal.App. 4th 500, 505 ~ “We
rely on and accept as true the contents of exhibits and treat as surplusage the pleader’s
allegations as to the legal effect of exhibits”) “The trial court was not required to credit
plaintiff’s allegations that extrinsic evidence ‘renders the insurance contract at issue here
ambiguous’ where language of the policy attached to complaint showed otherwise”. (George v.
4th 1112,
Automobile Club ofSo. Calif (2011) 201 Cal.App. 1130.)
Here, Plaintiff‘s class action cause of action for conversion is subject to demurrer
because Plaintiffs own exhibits establish an independent basis for towing the vehicles under
Vehicle Code § 22651 (o)(1)(B), specifically that incorrect license plates were attached to
Plaintiffs trailers. Additionally, this cause of action is subject to demurrer because Vehicle
Code § 22651 provides numerous grounds for the towing of the vehicle and Plaintiff’s simple
allegation that he had a vehicle whose registration was not expired in excess .of 6.months towed
_
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DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
does not necessarily render to the tow illegal.
When themsubstantive theories and claims of a proposed class suit are alleged to be
without legal or factual merit, the interests of fairness and efficiency are furthered when the
contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on
\OOOQO‘xUl-D-UJNH
the pleadings, summary judgment, or summary adjudication) that affords proper notice and
employs clear standards. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440) As Plaintiffs
substantive conversion claim is without merit, the class action cause of action is properly
subject to demurrer.
2. Plaintiff’s Cause of Action for Violations of Vehicle Code Section
10652.5 is Subject to Demurrer as it Fails to Allege Sufficient Facts for a
Violation of Vehicle Code Section 10652.5 (Count 11)
Vehicle Code Section 10652.5(a) provides:
Whenever the name and address of the legal owner of a motor vehicle is
known, or may be ascertained from the registration records in the vehicle or
from the records of the Department of Motor Vehicles, no fee or service
charge may be imposed upon the legal owner for the parking and storage of
NMp—ir—AHHi—Ii—Ii—av—Ir—IH
the motor vehicle except as follows: (1) The first 15 days of possession and
(2) following that 15-day period, the period commencing three days after
written notice is sent by the person in possession to the legal owner by
certified mail, return receipt requested, and continuing for a period not to
aggagwlgeoxocoqmmhwwuo
exceed any applicable time limit set forth in Section 3068 or 3068.1 of the
Civil Code. [Emphasis Added]
Plaintiff alleges “Plaintiff, the legal owner of a vehicle, was charged at least 30 days of
storage without having ever received the required Antitheft Notices, exceeding the 15-day
period for which Owners or Tow Contractors may legally charge without having sent such
N Notices. (See Plaintiffs SAC, page 33, lines 26-28)
These allegations are inadequate for pleading a violation of Vehicle Code Section
10652.5, because the code section clearly provides that written notice is to be “sen ”; it says
nothing requiring that the notice be received. Further and more importantly, the allegation that
Plaintiff never received notices is contradicted by other allegations in Plaintiff’s Second
Amended Complaint as well as Exhibits attached to Plaintiff’s previous Complaints.
~5— .
DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
'
Plaintiff admits that he has received notice of lien sales from Tow Defendants, please
see page 38, lines 25 and 26 of Plaintiff’s SAC: “... and have attempted to charge him storage
fees beyond the 15‘h day by mailing him a Lien Sale Notices for storage fees in excess of 15
days.” [Emphasis Added] This clearly contradicts Plaintiffs allegation that he never received
the required “Antitheft Notices.” Defendants are unclear where Plaintiff comes up with the term
\OOOVQUl-tH
“Anti-theft Notices”, as that phrase does not appear in the language of Vehicle Code Section
10652.5, rather Vehicle Code Section 10652.5 provides that “written notice” is required. By
Plaintiff’s own admission, he has received the written notices required under Vehicle Code
-
Section 10652.5 by acknowledging that he received the Notice of Lien Sales.
Additionally, it is clear Plaintiff received said notices by his reference to them in the
Complaint and First Amended Complaint, please see EXHIBIT N and 0 attached to the
Complaint, and EXHIBIT W attached to the First Amended Complaint. All documents are
entitled “Notice of Pending Lien Sale For Vehicle Valued $4000 or Less”, and they represent
notices for the Airstream Trailer, Utility Trailer, and Toyota Tundra respectively. Facts
NNr—Ib—Ip—av-dt—Ap—AI—at—lr—Ai—I
appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to
gmgHOOOOQONUl-b-WNHO
the allegations in the pleading, will be given precedence. (Dodd v. Citizens Bank of Costa Mesa
(1990) 222 Ca1.App. 3d 1624, 1627) Under the sham pleading doctrine, the trial court may
disregard arnendrnentsthat omit harmful allegations in the original complaint or add allegations
inconsistent with it. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Ca1.App. 4th 1263, 1281)
Consequently, based on Plaintiff’s acknowledgement in the Second Amended Complaint
and based on Plaintiffs Exhibits from previous Complaints, Plaintiff did receive the required
notices under Vehicle Code Section 10652.5 and as a result cannot plead facts sufficient to
[\J constitute a cause of action under Vehicle Code Section 10652.5.
3. Plaintiff’s Cause of Action for Vehicle Embezzlement and Concealment
are Subject to Demurrer for Failing to Allege Sufficient Facts to State a
cxu:
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Cause of Action (Count 12)
Penal Code Section 496(3) provides:
OO\I
NM
Every person who buys or receives any property that has been stolen or that has
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DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE
BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF DEMURRER TO SECONDAMENDED COMPLAINT
been obtained in any manner constituting theft or extortion, knowing the
property to be so stolen or obtained, or who conceals, sells, withholds, or aids
in concealing, selling, or withholding any property from the owner, knowing the
property to be so stolen or obtained, shall be punished by imprisonment in a
'
county jail for not more than one year, or imprisonment pursuant to subdivision
(h) of Section 1170. [Emphasis Added]
This code section clearly requires that Defendants obtained property that was (1) stolen
\o'ooxio‘aJIAmmH
or obtained in a manner constituting theft and (2) knew that the property was stolen or obtained
by theft. Plaintiff alleges “Upon information and belief, Owners have knowledge that they are
required to mail the Antitheft Notices to the legal owners of vehicles to continue accumulating
storage fees past the 15th day. However, they knowingly do not mail such notices to accumulate
l—A‘b—l
storage fees. Owners have fraudulently apportioned vehicles entrusted to them by the SBPD, in
violation of Penal Code § 503, by knowingly failing to mail the Antitheft Notices.” (Plaintiffs
)-A
Second Amended Complaint, lines 16-20)
>—I
Preliminarily, Defendants incorporate the discussion under Count 11, supra. As
r—A
discussed at length, Plaintiff has acknowledged receiving the Notice of Lien Sales for his
>—I
vehicles both in his Second Amended Complaint as well as through Exhibits to previous
)—A
Complaints. As a result, this cause of action is subject to demurrer as Plaintiff cannot show that
EWsHOOmflQM-PWNHO
l—-l
Defendants “knowingly” failed to mail antitheft notices.
‘
>—-a
Although it is not a specific intent crime, a necessary element of the offense of receiving
h—I
stolen property is actual knowledge of the stolen character of the property; (People v.
N
Rodriguez (1986) 177 Cal.App. 3d 174, 179) [Emphasis Added] Possession of stolen property
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amp v ’L -1 RANDY E. THOMAS, ESQ. / SBN: 78411 2 JONATHAN P. MARRS, ESQ. / SBN: 258525 JEANNINE I. MALDONADO, ESQ. / SBN: 285619 FILE-D 1‘ SAN MATEO COUNTY LAW OFFICE OF RANDY E. THOMAS 3 18826 N. Lower Sacramento Road, Suite G JUL 2 7 2018 PO. Box 717 4 Woodbridge, CA 95258 Telephone: (209) 369—9255 5 Facsimile: (209) 369-9288 6 Attorney for Defendants COURTESY TOW, ACTION TOWING, 7 BRIAN BANKS, TRACY KOEHLER, JOSE BEDOLLA, DENNIS PERRY, AND DRIVER 62 /__ $2, 11— cur—115149 MPAS Memorandum o! Polnts and Authorllies in Sup; CALIFORNIA SUPERIOR COURT ”IIIIIIIIIIIIIIIIIIIIIIIIIIIII IN AND FOR THE COUNTY OF SAN MATEO CHIAHO WU, an individual, on behalf Case No.: l7CIV05749 of those similarly situated, 13 ASSIGNED FOR ALL PURPOSES TO Plaintiff THE HON. MARIE S. WEINER , 14 COURTROOM 2E V. 1 5 ' DEFENDANTS COURTESY TOW, AARON K. WONG and JEREMY R. ACTION TOWING, TRACY 16 BRANDENBURG, individually and as KOEHLER, BRIAN BANKS, JOSE members of the San Bruno Police BEDOLLA (INCORRECTLY 17 Department; DENNIS PERRY and JOSE NAMED JOSE BENDOLA), DENNIS BENDOLA, employees of Action PERRY AND “DRIVER 62”’S 18 Towing or Courtesy Tow; “DRIVER MEMORANDUM OF POINTS AND 62”, an employee of Action Towing or AUTHORITIES IN SUPPORT OF 19 Courtesy Tow; ACTION TOWING, DEMURRER TO PLAINTIFF’S ‘ d.b.a San Bruno Auto Center, a SECOND AMENDED COMPLAINT 20 California Corporation, COURTESY TOW, a California Corporation, BRIAN Case Filed: December 15, 2017 21 C. BANKS, owner of Action Towing; Hearing Date: September 10,2018 TRACY M. KOEHLER, owner of Time: 10:00am 22 Courtesy Tow; G. COOK, an individual; Department: 2E I. KOHLVELD, an individual; SAN BY FAX 23 BRUNO POLICE DEPARTMENT, a public entity; CITY OF SAN BRUNO, a : 24 municipal entity; and DOES 1- 100, inclusive, 25 Defendants. 26 27 28 _i— DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT TABLEOFCONTENTS I i I. LEGALAUTHORITY.....................' ................ ....................... 1 II. iAIIIICIIJIVIIEJ\T1“ ........................................................................ 22 \DWQONM-bUJNv—I A. STANDING 1. Plaintiff has noStanding to File a Cause of Action Against Defendants Action Towing, Brian Banks, Dennis Perry and Jose Bedolla Because Plaintiff is Not the Registered OwneroftheAirstreamTrailer................; ................... 2 B.CLASSACTHNNCAUSESOFACTKEI 1. Plaintiffs Cause of Action for Conversion Fails Because There Are Other Grounds for Which a Vehicle May be Legally Towed Under Vehicle Code Section 22651 Other Than Expired [\JHh—lb—‘HHHb—dl—‘HH Registration (Count 10) ............................................. 3 2. Plaintiffs Cause of Action for Violations of Vehicle Code Section 10652.5 is Subject to Demurrer as it Fails to Allege Sufficient Facts for a Violation of Vehicle Code Section 10652.5 (Count 11) ................................................. 5 3. Plaintis Cause of Action for Vehicle Embezzlement NM and Concealment are Subject to Demurrer for Failing to Allege Sufficient Facts to State a Cause of Action (Count 12) ......... 7 4. Cause of Action Under Business and Professions Code § 1788.17 (Communication ofDebt to Third Parties Without —ii— DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT Consent) is Subject to Demurrer Because the Towing of Vehicles does not Constitute a Consumer Credit Transaction under the Business and Professions Code (Count 13) .................. 8 5. Cause of Action Under Business and Professions Code \OOOQQM-RUJNH § 1788.17 (False Representation of Debt) is Subject to Demurrer Because the Towing of Vehicles does not Constitute a Consumer Credit Transaction h under the Business and Professions Code (Count 14) 9 6. Cause of Action Under Business and Professions Code § 1788.17 (Creating False Belief of Third Party Debt Collection) is Subject to Demurrer Because the Towing of Vehicles does not Constitute a Consumer Credit Transaction under the Business and Professions NNNNNr—lb—lb—dh—li—Ir—di—IHHt—d #WMHOWWVQW—PWNHO Code (Count 15) ................................................ 9 7. Cause of Action for violation of 18 U.S.C. 1962(0) (Racketeering and Mail and Wire Fraud) is Subject to Demurrer Because it Fails to Allege Sufficient Facts to Constitute a Cause of Action (Count 16) ................... 1‘0 8. Plaintiff’ 3 Cause of Action for Violations of Business and Professions Code § 17200 are Subject to Demurrer MN GNU] for Failing to Allege Sufficient Facts to Constitute a Cause of Action (Count 17) .................................. 12 OO\] [\JN 9. Plaintiff s Cause of Action for Violations of Business -iii- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’5” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT and Professions code § 17200 are Subject to Demurrer for Failing to Allege Sufficient Facts to Constitute a Cause of Action (Count 18) .............................. , . .. 13 \OOOQO‘xUl-PLANb—I 10. Plaintiff’s Cause of Action for Violations of Business And Professions Code § 17200 is Subject to Demurrer As Tow Defendants are Not Implicated by Vehicle Code Section 14602.6(a)(2) (Count 19) ........................... 13 C. INDIVIDUAL CAUSES OF ACTION H r—t 1. Plaintiff 5 Cause of Action for Damage to Personal ..................... 15' H Property is Subject to Demurrer (Count 1) Plaintiff’s Cause of Action for Damage to Personal >--- 2. Property is Subject to Demurrer (Count 2) ..................... 15 D—i.i—‘|-‘ III. CONCLUSION ....... ....................................................... , 15 >—- p... [0t N N NNN -iv- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’5” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT TABLE OF AUTHORITIES Acre v. Kaiser Foundation Health Plan (2010) 181 Ca1.App. 4th 471, 487 10 Banks v. Department ofMotor Vehicles for Cal. (2006) 419 F.Supp.2d 1186, 1191 11 \OOO\IO\UIJ>U)[\)r—t Barnett v. Fireman ’s Fund Ins. Co. (2001) 90 Ca1.App. 4th 500, 505 C& H [Foods Co. v. Hartford Insurance Co. (1984) 163 Ca1.App. 3d 596, 605 ‘ Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713 Dodd v. Citizens Bank of Costa Mesa (1990) 222 Ca1.App. 3d 1624, 1627 Doe v. Lincoln Unified School District (2010) 188 Ca1.App. 4th 758, 765 Falcon v. Long Beach Genetics, Inc. (2014) 224 Ca1.App. 4th 1263, 1281 Frantz v. Blackwell (1987) 189 Ca1.App. 3d 91, 94 George v. Automobile Club ofSo. Calif (2011) 201 Ca1.App. 4th 1112, 1130 Gouskos v. Aptos Village Garage Inc. (2001) 94 Ca1.App. 4th 754, 759 NNNNr—‘HHb—ib—IHHHh—Ir—l Iae Vaccine Cases (2005) 134 Ca1.App.4th 438, 458 Javor v. Taggart (2002) 98 Ca1.App.4th 795, 810 Linder v. Thrifty Oil Co. (2000) 23 Cal. 4‘“ 429, 440 Mohebbi v. Khazen (2014) 50 F. Supp. 3d 1234, 1257 Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 CASth 1131, 1145-1146 Patrick v. Alacer Corp. (2008) 167 Ca1.App. 4th 995, 1015) People v. Mercedes Benz Roadster (1963) 211 Ca1.App. 2d 842, 844 People v. Rodriguez (1986) 177 Ca1.App. 3d 174, 179 N People v. Stuart (1969) 272 Ca1.App. 2d 653, 655 Ross v. Creel Printing and Publishing Co. (2002) 100 CA4th 736, 748 N Scannell v. County ofRiverside (1984) 152 Ca1.App.3d 596, 605 ‘V‘ DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEI-ILER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT SecureInfi) Corp v. Telos Corp (2005) 387 F .Supp.2d 593,614 11 Thompson v. City ofPetaluma (2014) 231 Cal.App. 4th 101, 106—108 14 Tucker v. Pacific Bell Mobile Services (2012) 208 Ca1.App.4th 201, 211) 10 \DOONONUI-PUJNH m 18 U.S.C. § 1962(c) 10 Business and Professions Code § 1788.17 Business and Professions Code § 1788.l7(e) Business and Professions Code § 1788.17(f) Civil Code - §§ 3068 3072 Code of Civil Procedure § 367 Code of Civil Procedure § 431.30(a) Nr—tt—Ib—Ip—Ii—Ii—Ii—Ip—Ih—Ii—n Penal Code § 496(a) - Vehicle Code § 10652.5 Vehicle Code § 14602.6(a)(2) 13 gflgwigwlggocmummgmmwo Vehicle Code § 22651(o)(1)(B) Vehicle Code § 22852(a) 14 Vehicle Code '14 § 2285205) \ N N VN 'VI- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY,~AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER T0 SECOND AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES. 1. LEGAL AUTHORITY \OOONONUl-PUJNr—t For purposes of a demurrer, the Court is compelled to accept the facts alleged on the face of the complaint. CCP section 430.30(a); Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 605. A demurrer does not admit contentions, speculation or conclusions of fact or law. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713; C & H Foods Co. v. Hartford Insurance Co. (1984) 163 Cal.App.3d 1055, 1062. Therefore, conclusive allegations may be "disregarded when the factual allegations and inferences indicate otherwise." Javor v. Taggart (2002) 98 Cal.App.4th 795, 810. Where grounds for a demurrer exist, the burden is on the plaintiff to demonstrate the manner in which the complaint may be amended to cure the defect. Ross v. Creel Printing and Publishing Co. (2002) 100 CA4th 736, 748. Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the NNNNNNl—‘HHHr—IHh—IHHb—l complaint. Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 CA5th 1131, 1145-1146. Our Supreme Court found it “settled” that courts are authorized to “weed['] out” legally meritless class action suits prior to certification by demurrer. (Tucker v. Pacific Bell Mobile Services (2012) 208 Ca1.App.4th 201, 211) When the substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) (Id) Demurrers may serve “as a screening mechanism for improperly pleaded class action allegations. (Id. at p. 212) When a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been -1- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’s” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT sustained, not add entirely new causes of action. (Patrick v Alacer Corp. (2008) 167 CA4th 995, 1015. (Emphasis added). As noted, Plaintiff has added new causes of "action in his SAC for which he is prohibited from doing. Consequently, in addition to the foregoing, all of Plaintiffs \OOO\IO\U‘IJ>UJNt-‘ new causes of action are subject to demurrer on this ground as well. 11. ARGUMENT A. STANDING 1. Plaintiff has no Standing to File a Cause of Action Against y—I r—- Defendants Action Towing,~ Brian Banks, Dennis Perry and Jose )—I Bedolla Because Plaintiff is Not the Registered Owner of the Airstream Trailer t—A I—a For all practical purposes, the registered owner is the real owner of the vehicle. (People I—I )—A v. One (I 960) Mercedes Benz Roadster (1963) 211 Cal.App. 2d 842, 844) Code of Civil )—d Procedure section 367 states that “[e]very action must be prosecuted in the name of the real b—l party in interest, except as otherwise provided by statute.” A real party in interest ordinarily is r—i defined as the person possessing the right sued upon by reason of the substantive law. (Doe v. N Lincoln Unified School District (2010) 188 Cal.App. 4th 758, 765) [Emphasis Added] N Attached as EXHIBIT A to Tow Defendant’s Request For Judicial Notice in Support of N [\J Demurrer to Plaintiff’s Second Amended Complaint is a copy of certified documents produced N by DMV in response to City Defendants’ subpoena. The page bates stamped 000006 entitled N DMV Vehicle Registration Information shows that Plaintiff Chiaho \7Vu sold the airstream trailer for $500.00 to another person on 12/27/2016. As a result, Plaintiff was not the registered owner on 7/6/ 17 and 7/7/17, the dates that Plaintiff’s vehicles were towed. Consequently, since - -2- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM 01“ POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT t, Plaintiff was not the registered owner of the airstream at the time it was towed, he has no standing to sue concerning the airstream trailer. The only connection between Plaintiff and Defendants Action Towing, Brian Banks, Dennis Perry, and Jose Bedolla was the towing of the \DOO\IO\U‘I-I>U~)l\)»—‘ airstream trailer. Therefore, all causes of action as to these Defendants are subject to demurrer without leave to amend pursuant to Plaintiffs lack of standing. B. CLASS ACTION CAUSES OF ACTION 1. Plaintiff’s Cause of Action for Conversion Fails Because There Are Other Grounds for Which a Vehicle May be Legally Towed Under Vehicle Code Section 22651 Other Than Expired Registration (Count ‘ 10) Vehicle Code Section 22651 provides in pertinent part: A peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or a regularly employed and salaried employee, who is engaged in directing traffic or enforcing parking laws and regulations, of a city, county, NI—IHF—‘HHHI—‘b—‘b—dr—l or jurisdiction of a state agency in which a vehicle is located, may remove a vehicle located within the territorial limits in which the officer or employee may act, under the gmBBoocxmhwwwo following circumstances: . . (o)(l) When a vehicle is found or operated upon a highway, public land, or an offstreet parking facility under the following circumstances: (B) Displaying in, or upon, the vehicle, a registration card, identification card, temporary receipt, license plate, special plate, registration sticker, device issued pursuant to ' Section 4853, or permit that was not issued for that vehicle, or is not otherwise lawfully used on that vehicle under this code. [Emphasis Added] Vehicle Code Section 22651 provides numerous legal grounds for the towing of a NM ChUI vehicle in addition to expired registration, such as the grounds set forth in Vehicle Code Section 22651(o)(1)(B). Consequently, the mere allegation in the SAC that Plaintiff had a vehicle that NM OO\J did not have a registration expired in excess of six months (Tow Defendants still deny that is the . ~3- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’8” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT case) does not necessarily mean there was not an independent legal ground for the towing of the vehicle. ‘ In fact, Vehicle Section 22651(o)(1)(B) is directly on point with this case. Attached to Plaintiffs original Verified Complaint as Exhibit C is a copy of the CHP-l80 regarding the xoooumm-pwmp-l Airstream Trailer. In the-notes at the bottom, it provides “Airstream Trailer parked next an Orange LTL Trailer (CA# 4EZl491). Airstream (Unknown Plate) had other Trailer’s License Plate, 4EZl491, Mounted to Rear. No Match on VIN.” Further, Exhibit D to Plaintiffs original Verified Complaint is a copy of the CHP-180 regarding the utility trailer. In the notes at the bottom, it provides in pertinent part: “LTL Trailer (CA# 4EZl49l) parked with no plate next an Airstream trailer that had LTL Trailer’s exp. Plate mounted (plate switch) DMV records show LTL trailer exp 10/12. Towed for 22651(o) CVC. Although for purposes of a general demurrer all allegations of the Complaint are treated as true, facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. (Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App. 5th 1131, 1145-1146) “Face of the Complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 NNNNND—IHD—ih—lI—lb—lb—‘HHH Cal.App. 3d 91, 94; Barnett v. Fireman ’3 Fund Ins. Co. (2001) 90 Cal.App. 4th 500, 505 ~ “We rely on and accept as true the contents of exhibits and treat as surplusage the pleader’s allegations as to the legal effect of exhibits”) “The trial court was not required to credit plaintiff’s allegations that extrinsic evidence ‘renders the insurance contract at issue here ambiguous’ where language of the policy attached to complaint showed otherwise”. (George v. 4th 1112, Automobile Club ofSo. Calif (2011) 201 Cal.App. 1130.) Here, Plaintiff‘s class action cause of action for conversion is subject to demurrer because Plaintiffs own exhibits establish an independent basis for towing the vehicles under Vehicle Code § 22651 (o)(1)(B), specifically that incorrect license plates were attached to Plaintiffs trailers. Additionally, this cause of action is subject to demurrer because Vehicle Code § 22651 provides numerous grounds for the towing of the vehicle and Plaintiff’s simple allegation that he had a vehicle whose registration was not expired in excess .of 6.months towed _ -4- DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT does not necessarily render to the tow illegal. When themsubstantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on \OOOQO‘xUl-D-UJNH the pleadings, summary judgment, or summary adjudication) that affords proper notice and employs clear standards. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440) As Plaintiffs substantive conversion claim is without merit, the class action cause of action is properly subject to demurrer. 2. Plaintiff’s Cause of Action for Violations of Vehicle Code Section 10652.5 is Subject to Demurrer as it Fails to Allege Sufficient Facts for a Violation of Vehicle Code Section 10652.5 (Count 11) Vehicle Code Section 10652.5(a) provides: Whenever the name and address of the legal owner of a motor vehicle is known, or may be ascertained from the registration records in the vehicle or from the records of the Department of Motor Vehicles, no fee or service charge may be imposed upon the legal owner for the parking and storage of NMp—ir—AHHi—Ii—Ii—av—Ir—IH the motor vehicle except as follows: (1) The first 15 days of possession and (2) following that 15-day period, the period commencing three days after written notice is sent by the person in possession to the legal owner by certified mail, return receipt requested, and continuing for a period not to aggagwlgeoxocoqmmhwwuo exceed any applicable time limit set forth in Section 3068 or 3068.1 of the Civil Code. [Emphasis Added] Plaintiff alleges “Plaintiff, the legal owner of a vehicle, was charged at least 30 days of storage without having ever received the required Antitheft Notices, exceeding the 15-day period for which Owners or Tow Contractors may legally charge without having sent such N Notices. (See Plaintiffs SAC, page 33, lines 26-28) These allegations are inadequate for pleading a violation of Vehicle Code Section 10652.5, because the code section clearly provides that written notice is to be “sen ”; it says nothing requiring that the notice be received. Further and more importantly, the allegation that Plaintiff never received notices is contradicted by other allegations in Plaintiff’s Second Amended Complaint as well as Exhibits attached to Plaintiff’s previous Complaints. ~5— . DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT ' Plaintiff admits that he has received notice of lien sales from Tow Defendants, please see page 38, lines 25 and 26 of Plaintiff’s SAC: “... and have attempted to charge him storage fees beyond the 15‘h day by mailing him a Lien Sale Notices for storage fees in excess of 15 days.” [Emphasis Added] This clearly contradicts Plaintiffs allegation that he never received the required “Antitheft Notices.” Defendants are unclear where Plaintiff comes up with the term \OOOVQUl-tH “Anti-theft Notices”, as that phrase does not appear in the language of Vehicle Code Section 10652.5, rather Vehicle Code Section 10652.5 provides that “written notice” is required. By Plaintiff’s own admission, he has received the written notices required under Vehicle Code - Section 10652.5 by acknowledging that he received the Notice of Lien Sales. Additionally, it is clear Plaintiff received said notices by his reference to them in the Complaint and First Amended Complaint, please see EXHIBIT N and 0 attached to the Complaint, and EXHIBIT W attached to the First Amended Complaint. All documents are entitled “Notice of Pending Lien Sale For Vehicle Valued $4000 or Less”, and they represent notices for the Airstream Trailer, Utility Trailer, and Toyota Tundra respectively. Facts NNr—Ib—Ip—av-dt—Ap—AI—at—lr—Ai—I appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to gmgHOOOOQONUl-b-WNHO the allegations in the pleading, will be given precedence. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Ca1.App. 3d 1624, 1627) Under the sham pleading doctrine, the trial court may disregard arnendrnentsthat omit harmful allegations in the original complaint or add allegations inconsistent with it. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Ca1.App. 4th 1263, 1281) Consequently, based on Plaintiff’s acknowledgement in the Second Amended Complaint and based on Plaintiffs Exhibits from previous Complaints, Plaintiff did receive the required notices under Vehicle Code Section 10652.5 and as a result cannot plead facts sufficient to [\J constitute a cause of action under Vehicle Code Section 10652.5. 3. Plaintiff’s Cause of Action for Vehicle Embezzlement and Concealment are Subject to Demurrer for Failing to Allege Sufficient Facts to State a cxu: NN Cause of Action (Count 12) Penal Code Section 496(3) provides: OO\I NM Every person who buys or receives any property that has been stolen or that has -6- » DEFENDANTS COURTESY TOW, ACTION TOWING, TRACY KOEHLER, BRIAN BANKS, JOSE BEDOLLA, DENNIS PERRY, AND “DRIVER 62’S” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECONDAMENDED COMPLAINT been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a ' county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. [Emphasis Added] This code section clearly requires that Defendants obtained property that was (1) stolen \o'ooxio‘aJIAmmH or obtained in a manner constituting theft and (2) knew that the property was stolen or obtained by theft. Plaintiff alleges “Upon information and belief, Owners have knowledge that they are required to mail the Antitheft Notices to the legal owners of vehicles to continue accumulating storage fees past the 15th day. However, they knowingly do not mail such notices to accumulate l—A‘b—l storage fees. Owners have fraudulently apportioned vehicles entrusted to them by the SBPD, in violation of Penal Code § 503, by knowingly failing to mail the Antitheft Notices.” (Plaintiffs )-A Second Amended Complaint, lines 16-20) >—I Preliminarily, Defendants incorporate the discussion under Count 11, supra. As r—A discussed at length, Plaintiff has acknowledged receiving the Notice of Lien Sales for his >—I vehicles both in his Second Amended Complaint as well as through Exhibits to previous )—A Complaints. As a result, this cause of action is subject to demurrer as Plaintiff cannot show that EWsHOOmflQM-PWNHO l—-l Defendants “knowingly” failed to mail antitheft notices. ‘ >—-a Although it is not a specific intent crime, a necessary element of the offense of receiving h—I stolen property is actual knowledge of the stolen character of the property; (People v. N Rodriguez (1986) 177 Cal.App. 3d 174, 179) [Emphasis Added] Possession of stolen property [\J