CACI No. 2100. Conversion - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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2100.Conversion - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully exercised
control over [his/her/nonbinary pronoun/its] personal property. To
establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/possessed/had a right to possess]
[a/an] [insert item of personal property];
2. That [name of defendant] substantially interfered with [name of
plaintiff]’s property by knowingly or intentionally [insert one or
more of the following:]
2. [taking possession of the [insert item of personal property];] [or]
2. [preventing [name of plaintiff] from having access to the [insert
item of personal property];] [or]
2. [destroying the [insert item of personal property];] [or]
2. [refusing to return the [insert item of personal property] after
[name of plaintiff] demanded its return.]
3. That [name of plaintiff] did not consent;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2009, December 2010, May 2017
Directions for Use
The last option for element 2 may be used if the defendant’s original possession of
the property was not tortious. (See Atwood v. S. Cal. Ice Co. (1923) 63 Cal.App.
343, 345 [218 P. 283], disapproved on other grounds in Wilson v. Crown Transfer &
Storage Co. (1927) 201 Cal. 701 [258 P. 596].)
Sources and Authority
• “Conversion is the wrongful exercise of dominion over the property of another.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61
Cal.4th 1225, 1240 [191 Cal.Rptr.3d 536, 354 P.3d 334].)
• “It is not necessary that there be a manual taking of the property; it is only
necessary to show an assumption of control or ownership over the property, or
that the alleged converter has applied the property to his own use.” . . .’ ”
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(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1507 [85
Cal.Rptr.3d 268].)
• “[A]ny act of dominion wrongfully exerted over the personal property of another
inconsistent with the owner’s rights thereto constitutes conversion.” (Plummer v.
Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 50 [108 Cal.Rptr.3d 455].)
• “To prove a cause of action for conversion, the plaintiff must show the defendant
acted intentionally to wrongfully dispose of the property of another.” (Duke v.
Superior Court (2017) 18 Cal.App.5th 490, 508 [226 Cal.Rptr.3d 807].)
• “[Conversion] must be knowingly or intentionally done, but a wrongful intent is
not necessary. Because the act must be knowingly done, ‘neither negligence,
active or passive, nor a breach of contract, even though it result in injury to, or
loss of, specific property, constitutes a conversion.’ It follows therefore that
mistake, good faith, and due care are ordinarily immaterial, and cannot be set up
as defenses in an action for conversion.” (Taylor v. Forte Hotels Int’l (1991) 235
Cal.App.3d 1119, 1124 [1 Cal.Rptr.2d 189], original italics, internal citations
omitted.)
• “Conversion is a strict liability tort. The foundation of the action rests neither in
the knowledge nor the intent of the defendant. Instead, the tort consists in the
breach of an absolute duty; the act of conversion itself is tortious. Therefore,
questions of the defendant’s good faith, lack of knowledge, and motive are
ordinarily immaterial. The basis of a conversion action ‘ “rests upon the
unwarranted interference by defendant with the dominion over the property of
the plaintiff from which injury to the latter results. Therefore, neither good nor
bad faith, neither care nor negligence, neither knowledge nor ignorance, are the
gist of the action.” [Citations.]’ ” (Los Angeles Federal Credit Union v.
Madatyan (2012) 209 Cal.App.4th 1383, 1387 [147 Cal.Rptr.3d 768].)
• “ ‘ “Conversion is a strict liability tort,” ’ so the Bank cannot defeat the claim on
the grounds that it accepted a forged signature in good faith. Financial
institutions can be liable to their depositors for transferring money out of their
accounts on forged instruments.” (Fong v. East West Bank (2018) 19 Cal.App.5th
224, 235 [227 Cal.Rptr.3d 838], internal citation omitted.)
• “The rule of strict liability applies equally to purchasers of converted goods, or
more generally to purchasers from sellers who lack the power to transfer
ownership of the goods sold. That is, there is no general exception for bona fide
purchasers.” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177,
1181 [180 Cal.Rptr.3d 610], internal citations omitted.)
• “There are recognized exceptions to the general rule of strict liability. Some
exceptions are based on circumstances in which ‘the person transferring
possession may have the legal power to convey to a bona fide transferee a good
title,’ as, for example, when ‘a principal has clothed an agent in apparent
authority exceeding that which was intended.’ Another exception concerns goods
obtained by means of a fraudulent misrepresentation. If the party who committed
the fraud then sells the goods to ‘a bona fide purchaser’ who ‘takes for value
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and without notice of the fraud, then such purchaser gets good title to the chattel
and may not be held for conversion (though the original converter may be).’ ”
(Regent Alliance Ltd., supra, 231 Cal.App.4th at p. 1183, internal citation
omitted.)
• “[I]t is generally acknowledged that conversion is a tort that may be committed
only with relation to personal property and not real property.” (Munger v. Moore
(1970) 11 Cal.App.3d 1, 7 [89 Cal.Rptr. 323], disagreeing with Katz v. Enos
(1945) 68 Cal.App.2d 266, 269 [156 P.2d 461].)
• “The first element of that cause of action is his ownership or right to possession
of the property at the time of the conversion. Once it is determined that
[plaintiff] has a right to reinstate the contract, he has a right to possession of the
vehicle and standing to bring conversion. Unjustified refusal to turn over
possession on demand constitutes conversion even where possession by the
withholder was originally obtained lawfully and of course so does an
unauthorized sale.” (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 609 [218
Cal.Rptr. 15], internal citations omitted.)
• “ ‘To establish a conversion, plaintiff must establish an actual interference with
his ownership or right of possession. . . . Where plaintiff neither has title to the
property alleged to have been converted, nor possession thereof, he cannot
maintain an action for conversion.’ ” (Moore v. Regents of the Univ. of Cal.
(1990) 51 Cal.3d 120, 136 [271 Cal.Rptr. 146, 793 P.2d 479], internal citations
omitted.)
• “In a conversion action the plaintiff need show only that he was entitled to
possession at the time of conversion; the fact that plaintiff regained possession of
the converted property does not prevent him from suing for damages for the
conversion.” (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d
737, 748 [282 Cal.Rptr. 620], internal citation omitted.)
• “Neither legal title nor absolute ownership of the property is necessary. . . . A
party need only allege it is ‘entitled to immediate possession at the time of
conversion. . . .’ . . . However, a mere contractual right of payment, without
more, will not suffice.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal
citation omitted.)
• “The existence of a lien . . . can establish the immediate right to possess needed
for conversion. ‘One who holds property by virtue of a lien upon it may
maintain an action for conversion if the property was wrongfully disposed of by
the owner and without authority . . . .’ Thus, attorneys may maintain conversion
actions against those who wrongfully withhold or disburse funds subject to their
attorney’s liens.” (Plummer, supra, 184 Cal.App.4th at p. 45, internal citation
omitted.)
• “Where the conduct complained of does not amount to a substantial interference
with possession or the right thereto, but consists of intermeddling with or use of
or damages to the personal property, the owner has a cause of action for trespass
or case, and may recover only the actual damages suffered by reason of the
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impairment of the property or the loss of its use. As [plaintiff] was a cotenant
and had the right of possession of the realty, which included the right to keep his
personal property thereon, [defendant]’s act of placing the goods in storage,
although not constituting the assertion of ownership and a substantial
interference with possession to the extent of a conversion, amounted to an
intermeddling. Therefore, [plaintiff] is entitled to actual damages in an amount
sufficient to compensate him for any impairment of the property or loss of its
use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551-552 [176 P.2d 1], internal
citation omitted.)
• “[T]he law is well settled that there can be no conversion where an owner either
expressly or impliedly assents to or ratifies the taking, use or disposition of his
property.” (Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474
[139 P.2d 80], internal citations omitted.)
• “As to intentional invasions of the plaintiff’s interests, his consent negatives the
wrongful element of the defendant’s act, and prevents the existence of a tort.
‘The absence of lawful consent,’ said Mr. Justice Holmes, ‘is part of the
definition of an assault.’ The same is true of false imprisonment, conversion, and
trespass.” (Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552 [51 Cal.Rptr.
575], internal citations omitted.)
• “If a defendant is authorized to make a specific use of a plaintiff’s property, use
in excess of that authorized may subject the defendant to liability for conversion,
if such use seriously violates another’s right to control the use of the property.”
(Duke,supra, 18 Cal.App.5th at p. 506.)
• “[D]amages for emotional distress growing out of a defendant’s conversion of
personal property are recoverable.” (Hensley v. San Diego Gas & Electric Co.
(2017) 7 Cal.App.5th.1337, 1358 [213 Cal.Rptr.3d 803].)
• “ ‘Money cannot be the subject of a cause of action for conversion unless there
is a specific, identifiable sum involved, such as where an agent accepts a sum of
money to be paid to another and fails to make the payment.’ A ‘generalized
claim for money [is] not actionable as conversion.’ ” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,
395 [58 Cal.Rptr.3d 516], internal citations omitted.)
• “Generally, conversion has been held to apply to the taking of intangible
property rights when ‘represented by documents, such as bonds, notes, bills of
exchange, stock certificates, and warehouse receipts.’ As one authority has
written, ‘courts have permitted a recovery for conversion of assets reflected in
such documents as accounts showing amounts owed, life insurance policies, and
other evidentiary documents. These cases are far removed from the paradigm
case of physical conversion; they are essentially financial or economic tort cases,
not physical interference cases.’ ” (Welco Electronics, Inc. v. Mora (2014) 223
Cal.App.4th 202, 209 [166 Cal.Rptr.3d 877], internal citation omitted.)
• “[I]t is ‘well settled in California that shares of corporate stock are subject to an
action in conversion’ and ‘it is not necessary that possession of the certificate
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evidencing title be disturbed.’ Instead, it is sufficient that there is interference
with the owner’s ‘free and unhampered right to dispose of property without
limitations imposed by strangers to the title.’ ” (Applied Medical Corp. v.
Thomas (2017) 10 Cal.App.5th 927, 938 [217 Cal.Rptr.3d 169].)
• “[T]here is no special rule preventing a depositor from pursuing a conversion
action against the bank that holds his or her money. . . . ‘The law applicable to
conversion of personal property applies to instruments,’ which includes
certificates of deposit.” (Fong,supra, 19 Cal.App.5th at pp. 232-233.)
• “Credit card, debit card, or PayPal information may be the subject of a
conversion.” (Welco Electronics, Inc., supra, 223 Cal.App.4th at p. 212, footnote
omitted.)
• “One who buys property in good faith from a party lacking title and the right to
sell may be liable for conversion. The remedies for conversion include specific
recovery of the property, damages, and a quieting of title.” (State Farm Mut.
Auto. Ins. Co. v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1076,
1081-1082 [62 Cal.Rptr.2d 178], internal citations omitted.)
• “In order to establish a conversion, the plaintiff ‘must show an intention or
purpose to convert the goods and to exercise ownership over them, or to prevent
the owner from taking possession of his property.’ Thus, a necessary element of
the tort is an intent to exercise ownership over property which belongs to
another. For this reason, conversion is considered an intentional tort.” (Collin v.
American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812 [26 Cal.Rptr.2d
391], internal citations omitted.)
• “A conversion can occur when a willful failure to return property deprives the
owner of possession.” (Fearon v. Department of Corrections (1984) 162
Cal.App.3d 1254, 1257 [209 Cal.Rptr. 309], internal citation omitted.)
• “A demand for return of the property is not a condition precedent to institution
of the action when possession was originally acquired by a tort as it was in this
case.” (Igauye v. Howard (1952) 114 Cal.App.2d 122, 127 [249 P.2d 558].)
• “ ‘Negligence in caring for the goods is not an act of dominion over them such
as is necessary to make the bailee liable as a converter.’ Thus a warehouseman’s
negligence in causing a fire which destroyed the plaintiffs’ goods will not
support a conversion claim.” (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th
464, 477 [65 Cal.Rptr.2d 473], internal citations omitted.)
• “Although damages for conversion are frequently the equivalent to the damages
for negligence, i.e., specific recovery of the property or damages based on the
value of the property, negligence is no part of an action for conversion.” (Taylor,
supra, 235 Cal.App.3d at p. 1123, internal citation omitted.)
• “A person without legal title to property may recover from a converter if the
plaintiff is responsible to the true owner, such as in the case of a bailee or
pledgee of the property.” (Department of Industrial Relations v. UI Video Stores,
Inc. (1997) 55 Cal.App.4th 1084, 1096 [64 Cal.Rptr.2d 457], internal citation
omitted.)
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• “With respect to plaintiffs’ causes of action for conversion, ‘[o]ne is privileged to
commit an act which would otherwise be a trespass to or a conversion of a
chattel in the possession of another, for the purpose of defending himself or a
third person against the other, under the same conditions which would afford a
privilege to inflict a harmful or offensive contact upon the other for the same
purpose.’ ‘For the purpose of defending his own person, an actor is privileged to
make intentional invasions of another’s interests or personality when the actor
reasonably believes that such other person intends to cause a confinement or a
harmful or offensive contact to the actor, of that such invasion of his interests is
reasonably probable, and the actor reasonably believes that the apprehended
harm can be safely prevented only by the infliction of such harm upon the other.
A similar privilege is afforded an actor for the protection of certain third
persons.’ ” (Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060,
1072 [283 Cal.Rptr. 917], internal citations omitted [labeled “defense of
justification”]; see Rest.2d Torts, § 261.)
• “We recognize that the common law of conversion, which developed initially as
a remedy for the dispossession or other loss of chattel, may be inappropriate for
some modern intangible personal property, the unauthorized use of which can
take many forms. In some circumstances, newer economic torts have developed
that may better take into account the nature and uses of intangible property, the
interests at stake, and the appropriate measure of damages. On the other hand, if
the law of conversion can be adapted to particular types of intangible property
and will not displace other, more suitable law, it may be appropriate to do so.
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
124 [55 Cal.Rptr.3d 621], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 810-831
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Tort
Liability, ¶ 2:427.4 et seq. (The Rutter Group)
Rylaarsdam & Turner, California Practice Guide: Civil Procedure Before
Trial - Statutes of Limitations, Ch. 4-D, Actions Involving Personal Property
(Including Intangibles), ¶ 4:1101 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.40 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10,
150.40, 150.41 (Matthew Bender)
5 California Points and Authorities, Ch. 51, Conversion, § 51.21[3][b] (Matthew
Bender)
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