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Civil Case
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PART
1. FORMS
§ 1 The Form Below is The General Form Complaint for damages for Conversion-
[1] CONVERSION: GENERAL FORM
____________________ Name (Attorney or Person in pro per)
(Telephone No.)
SUPERIOR
COURT OF CALIFORNIA,
COUNTY OF __________
[or other as appropriate]
CASE NO.
COMPLAINT FOR
vs.
[Amount
demanded
(exceeds or does
not exceed)
$10,0001
________________________[name(s)]
[LIMITED CIVIL CASE]
[and DOES I through ____________]
Defendant(s)
__________________________________/
Plaintiff
alleges:
1. ___________ [Allege defendant's
capacity and residence, e.g., Defendant
___________(name
) is, and at all times herein mentioned was, a resident
California], in the _________ (name)_______
2.
Plaintiff is ignorant of the true names and capacities of defendants sued
herein as
DOES I - ________, inclusive, and therefore sues these defendants by such fictitious
names.
ascertained. (Plaintiff is informed and believes and thereon alleges that each of
these
fictitiously named defendants is responsible in some manner for the
occurrences herein alleged, and that plaintiff's damages as herein alleged were
proximately
caused by their conduct.)]
3.
At all times herein mentioned, and in particular on or about
plaintiff
was, and still is, the _________ [describe
plaintiff's
interest in the property, e.g., owner]
and was, and still is, entitled to the possession of the following personal
property, namely:
________________________[describe property ].
4.
On or about [______________[date], and at _______________[city ],
_____________
County,
California, the property described above had a value of $ ___________.
5.
On or about __________[date], defendant____ [describe defendant's conversion of the
property, e.g.,
took
the property described above from plaintiff's possession and] converted the
same
to his/her own use.
[6.
If the property was initially acquired lawfully from plaintiff, include the
following allegation:
On or about
_____________(date), plaintiff (orally)
return of the above‑mentioned property but
to fail and refuse, to return
return of
of defendant's written refusal to return the property is attached hereto
as
Exhibit B and made a part hereof.)]
[7.
If seeking damages under the alternative damage provision of
Civ.
include the following allegation:
As a proximate result of defendant's conversion, plaintiff ______
(allege injuries suffered which
to
plaintiff's damage in the sum of $___________.]
[8.
Between the time of defendant's conversion of the above‑mentioned
property to his/her
own use and the filing of this action, plaintiff
pursuit of the converted property), all to plaintiff's further damage in the
sum of $ ________.]
9.
The defendant's acts alleged above were willful, wanton, malicious, and
oppressive,
[were undertaken with the intent to defraud,] and justify the awarding of
exemplary and
punitive damages.
WHEREFORE,
plaintiff prays judgment against defendant [s, and each of them,] as follows:
1.
For the value of the property converted;
2.
For interest at the legal rate on the foregoing sum pursuant to Section
3336
of the Civil Code, from and after _____________
[date];
[3.
For damages for the proximate and foreseeable loss resulting from
defendant's
conversion in the sum of $__________
;]
[4.
For damages for time and money properly expended in pursuit of the
converted property in the sum of _________;]
(5.
For punitive and exemplary damages;]
6.
For costs of suit herein incurred; and
7.
For such other and further relief as the court may deem proper.
Date: ________________ ______________________
(firm
name, if any ]
By:
____________________ [signature]
_______________________
[Typed name]
________________________Attorney
for Plaintiff [name ]
End of Form
VERIFICATION
I,
[ __________name ], am the plaintiff in the above‑entitled action.
I have
complaint and know the contents thereof. The same is true of my own knowledge,
except as to those matters that are therein alleged on information and belief,
and as to those matters, I believe it to be true.
I
declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
[date
] ____________ ___________________
[signature
]
(typed name]
[1]
Use of Verification
Although
verification of this complaint is not required, verification will
require any answer to be verified also, if the
action is in the superior court
and is not a limited civil case [Code
Civ. Proc. § 92(b), Code
Civ Proc § 446].
Verification will also preclude a general denial except in a limited civil
case, and will preclude a general denial even
in a limited civil case when the
action is a claim assigned to a third party for collection [Code Civ. Proc. §
431.30(d)].
For further discussion see Ch. ___, Answers.
[1]
Use of Form
The
form of complaint in [ 1 ], above, is a general form for use in an action for
damages
for conversion. Subsequent forms provide an allegation seeking punitive
damages [§ 150.51 ], complaints
and allegations based on various methods of
converting property [§§ 150.52‑150.65], complaints and
allegations for
use by particular plaintiffs [§§ 150.73‑150.76], and an allegation
alleging excuse from the
requirement of making a demand for the return of
property [§ 150.77].
[2]
Allegations
If
defendant's original possession was lawfully acquired, a demand for return of
the property must be made on defendant before action is brought [Flennaugh
v. Heinrich (1948) 89 Cal. App. 2d 214, 222, 220 P.2d 580; for discussion,
see § 150.13[7]]. Optional Paragraph 6 may be used to allege the demand and
defendant's refusal to comply. For a form of allegation that may be used in
lieu of this paragraph when no demand is required, for example, when demand
would be futile [see Scott's V. F. Exch. v. Growers Refrigeration Co., Inc.
(1947) 81 Cal. App. 2d 437, 450, 184 P.2d 183, disapproved on other grounds,
Hischemoeller v. Nat. Ice etc. Storage Co. (1956) 46 Cal. 2d 318, 328, 294
P.2d 4331, see § 150.77.
Civ.
Code § 3336, which provides for an alternative measure of damages, is
employed when damages based on the value of the property would yield an unjust
result [Myers v. Stephens (1965) 233 Cal. App. 2d 104, 116, 43 Cal. Rptr. 420;
for discussion, see § 150.16[2]]. To seek damages under this alternative
damage provision, include Optional Paragraph 7 in addition to the allegation
of damages based on the value of the property (Paragraph 4).
Optional
Paragraph 8 may be used to seek damages for expenditures properly made in the
pursuit of the property [see Civ. Code § 3336; for discussion, see §
150.16[3]].
Exemplary
damages [Civ. Code §
3294] may be recovered in a conversion action, given the
requisite showing of malice, fraud, or oppression [Haigler v. Donnelly (1941)
18 Cal. 2d 674, 681, 117 P.2d 331; for discussion, see § 150.16[5]]. Optional
Paragraph 9 may be used to seek exemplary damages. No claim for exemplary
damages may state an amount claimed [Civ. Code §
3295(e)]. For punitive
damages allegations that may be used as an alternative to Paragraph 9, see §
150.51.
[5]
Venue
For
purposes of venue, conversion is not considered an injury to person or
personal property as provided in Code
Civ. Proc. § 395(a) which would permit
trial in the county where the conversion took place since such an injury is
limited to physical or corporeal injury (Spangenberg v. Spangenberg (1932)
123 Cal. App. 387, 391, 11 P.2d 408]. Therefore, the residence of the
defendant is the proper county for the trial of an action for conversion [see
Code Civ. Proc. § 395(a); Haurat v. Superior Court (1966) 241 Cal. App. 2d
330, 333, 50 Cal. Rptr. 520].
[6]
Copies
The
following copies of the complaint in [ 1 ], above, should be prepared
• Original to be filed with the court;
• One copy, together with a copy of the summons, to be served on each
defendant
[different forms of service require different numbers of
copies;
for discussion see California Code of Civil Procedure and Civil Procedure
Manual Ch. ____, Service of Summons and Papers 1;
• One copy for the office file;
• Copy
for client, if desired; and
• Other copies as desired
[7]
Cross References
For
alternative allegations of capacity and residence, fictitious name
allegations, and agency allegations, see Ch. ______. Allegations Commonly Used
For
alternative forms of captions and introductions, see Ch. 108, Captions and
Introductions For alternative forms of prayers and verifications, see
Ch. 420, Prayers, and Ch. 572, Verification, respectively Witkin, California
Procedure, Vol. 5. Pleading. §§ 653‑656
§
150.51 Allegation‑Facts Justifying Punitive Damages
[1]
FORM
1.
At the time defendant converted the property, defendant was guilty of malice,
oppression, and a willful and conscious disregard for the rights of plaintiff
in that defendant, without making any investigation and with reckless
indifference and willful and conscious disregard for the rights of any person
who may have had an interest in the converted property, and particularly for
the rights of plaintiff, did convert the property.
2.
Further, after knowledge and notice of plaintiffs interest in the converted
property was given to defendant, defendant failed and refused, and continues
to fail and refuse, to return the property. By reason of these acts plaintiff
has been oppressed and seeks punitive and exemplary damages.
[2]
Use of Form
The
allegation in [1], above, states circumstances upon which an award of punitive
and exemplary damages is sought. Upon proper showing, punitive damages are
available in a conversion action [see Ferraro v. Pacific Fin. Corp.
(1970) 8 Cal. App. 3d 339, 351, 87 Cal. Rptr. 226; Civ. Code § 3294]. No
claim for exemplary damages may state an amount claimed [Civ. Code §
3295(e)].
When appropriate, these allegations may be
substituted for Paragraph 9 of § 150.50[ 1 ], thereby becoming Paragraphs 9
and 10.
§
150.52 Allegation‑Conversion by Unauthorized Sale of
Property‑General
Form
[1]
FORM
1.
At all times herein mentioned, the personal property described
above was in the
lawful possession of defendant. Defendant's
possession resulted from [describe circum
stances
that brought defendant into lawful possession of the
2.
On or about [date ], defendant,
without plaintiffs
consent, sold the above‑described
property and thereby converted it and
its proceeds to his/her own use.
[2]
Use of Form
The
form of allegation in [ 1 ], above, may be used in a complaint for conversion
by the
unauthorized sale of property [see Reynolds v. Lerman
(1956) 138 Cal.
App. 2d 586, 592,
292 P.2d 559]. It alleges the circumstances of defendant's
possession (Paragraph 1) and
defendant's unauthorized sale of the property
(Paragraph 2). When appropriate, it may be
substituted for Paragraph 5 of §
150.50[1] (general complaint for conversion), with
subsequent paragraphs
renumbered accordingly.