Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; writ of mandate. Super. Ct. No. RIC497123. Douglas E. Weathers, Judge.
Law Offices of Lorraine Howell and Lorraine Howell for Petitioner.
No appearance for Respondent.
Cihigoyenetche, Grossberg & Clouse, Richard R. Clouse and Ronak N. Patel for Real Parties in Interest.
OPINION
HOLLENHORST Acting P. J.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
There is no conversion and the statute of limitations does not start to run against an owner of property and in favor of a bailee until the bailee’s adverse claim is brought to the owner’s knowledge. Where an original taking is wrongful, the bar of the statute runs from the time of the unlawful taking. But, where the original taking is lawful, the statute is not set in motion until the return of the property has been demanded and refused or until a repudiation of the owner’s title is clearly and unequivocally brought to his attention. (Niiya v. Goto (1960) 181 Cal.App.2d 682, 688; Bufano v. San Francisco (1965) 233 Cal.App.2d 61, 70.)
A demurrer is properly sustained without leave to amend where the pleading discloses on its face that the action is barred by the applicable statute of limitations. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524.) Our task is to independently analyze the sufficiency of the pleading on its face while accepting that the allegations are true. (Foundation for Taxpayer & Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 135.) The issue we must decide is whether the pleadings show on their face that the statute of limitations began to accrue at the time petitioner was informed by the police that real party in interest Abbona believed that petitioner had picked up his property. In other words, was this statement a clear and unequivocal repudiation of petitioner’s ownership? We cannot conclude as a matter of law that it was. It might have been nothing more than an expression of Abbona’s confusion as to the location of the petitioner’s trucks. It is clear that petitioner did not interpret the statement as an unequivocal statement that his trucks were lost, stolen, or destroyed, and his interpretation and lack of action might have been perfectly reasonable given the surrounding circumstances. However, because the issue arises on demurrer, we do not have a complete factual context—what occurred before or after Abbona made his statement that was relayed by the police. Abbona may be able to establish a statute of limitations defense on summary judgment, but it has not been established from the face of the pleadings.
In addition, we note that real parties in interest All Commercial Towing and Craig Eversole joined in Abbona’s demurrer, although the trial court’s ruling did not address their joinder. Petitioner’s allegations do not show that either was making an adverse claim in 2004 or 2005. According to the face of the complaint, these two defendants did not come into the picture until 2007 when petitioner first had notice they were making a claim. This was well within the three-year statute for conversion claims. (Code Civ. Proc., § 338, subd. (c).) Insofar as the demurrer ruling was intended to apply to the claims against these two defendants, it was erroneous.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its ruling sustaining the demurrer without leave to amend as to certain causes of action and to issue a new and different order overruling the demurrer.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Each party to bear its own costs.
We concur: GAUT J., KING J.