Voris v. Lampert

Filed 3/28/17 Voris v. Lampert CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BRETT VORIS,
Plaintiff and Appellant,
v.
GREG LAMPERT,
Defendant and Respondent.
B265747
(Los Angeles County
Super. Ct. No. BC408562)
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Michael L. Stern, Judge. Reversed in
part and remanded with directions and affirmed in part.
Anderson Yeh, Edward M. Anderson and Regina Yeh for
Plaintiff and Appellant.
Paul Kujawsky for Defendant and Respondent.
_________________________

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Plaintiff and appellant Brett Voris (Voris) appeals a
judgment entered following the grant of a motion for judgment on
the pleadings brought by defendant and respondent Greg
Lampert (Lampert). Voris also appeals a postjudgment order
awarding attorney fees to Lampert.
The essential issue presented is whether Voris’s causes of
action for conversion of wages and conversion of stock were well
pled.
We conclude unpaid wages do not give rise to a cause of
action for conversion. However, Voris’s claims for conversion of
stock are well pled. Therefore, we reverse the judgment on the
pleadings with respect to Voris’s stock conversion claims. We
also reverse the attorney fee award because Lampert is not the
prevailing party at this juncture.
FACTUAL AND PROCEDURAL BACKGROUND1
1. Earlier proceedings.
This case arises out of the business relationship between
Voris and defendants Lampert and Ryan Bristol (Bristol) (not a
party to this appeal). In November 2005, Voris joined with
Bristol and Lampert to form Premier Ten Thirty One Capital
(PropPoint), a real estate investment company. Voris helped
PropPoint with marketing and advertising and was promised an
ownership share in the company as compensation for his services.
Voris eventually began receiving a salary of $3,000 per month
from PropPoint. Voris alleged similar involvement in two other
1 This summary is based in part on this court’s prior opinion
in Voris v. Lampert (May 22, 2014, B234116) [nonpub. opn.]
(Voris I).

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entities, Liquiddium Capital Partners, LLC (Liquiddium) and
Sportfolio, Inc. (Sportfolio).
In the fall of 2006, Voris discovered alleged financial
improprieties by Bristol and Lampert, including commingling of
the funds of PropPoint, Liquiddium, Sportfolio and other
companies for the individual defendants’ personal benefit, and
use of company funds to pay individual defendants’ personal
expenses. Voris also alleged that Bristol and Lampert failed to
observe corporate formalities such as keeping minutes of board
meetings and notifying shareholders of meetings.
Upon learning of the alleged financial improprieties, Voris
confronted Bristol and Lampert, who then retaliated against
Voris by criticizing his work performance and accusing him of
stealing money from the company. Voris ultimately was
terminated in January 2007.
Voris filed the operative first amended complaint on July 7,
2009, alleging 24 causes of action, based on these and other
alleged improprieties. All 24 causes of action were asserted
against Lampert, in addition to other defendants.
On September 22, 2009, the trial court sustained Lampert’s
demurrers to Voris’s 8th through 11th and 21st through 24th
causes of action with leave to amend. Voris did not amend his
pleadings. Thus, following the sustaining of the demurrers, the
surviving causes of action against Lampert were Voris’s 1st
through 7th and 12th through 20th causes of action.
On April 19, 2011, Lampert obtained summary judgment
on the ground that no triable issue of fact existed as to Voris’s
alter ego allegations against him. Voris appealed.2
2 As for the remaining defendants, Voris proceeded to trial
against Bristol, Sportfolio and Liquiddium, the action against

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In Voris I, this court reversed in part and affirmed in part.
We concluded Voris failed to raise a triable issue with respect to
his alter ego allegations against Lampert, because in resisting
summary judgment, Voris filed an opposing separate statement
that failed to specify the evidence on which he would rely to
establish alter ego liability. However, we also concluded the
viability of Voris’s causes of action for conversion did not depend
on Lampert’s alter ego liability, because Lampert could be held
individually liable for acts of conversion, without regard to
whether the corporate veil should be pierced. Therefore, we
reversed the judgment in favor of Lampert with respect to the
14th through 20th causes of action, and otherwise affirmed.
2. Proceedings on remand.
On remand, Lampert filed a motion for judgment on the
pleadings on Voris’s stock conversion claims (14th, 15th, 17th,
18th and 19th causes of action), on the ground that Voris had
failed to state a claim for conversion. Lampert contended that
Voris had failed to allege that he was deprived of his ownership
interests, there was no allegation by Voris that Lampert had
declared his shares forfeited, and “[a]t most Mr. Voris alleges he
was deprived of some of the benefits of ownership.” According to
Lampert, Voris alleged “he was not issued share certificates, but
he fails to allege facts even tending to show that he suffered any
harm from not having them.”
PropPoint having been stayed due to its bankruptcy. Bristol
successfully moved for nonsuit. On October 19, 2011, Voris
obtained a judgment following jury trial, which determined that
Liquiddium and Sportfolio were liable for the conversion of his
ownership interests in the amounts of $55,599.32 and $52,631.58,
respectively.

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Lampert filed a separate motion for judgment on the
pleadings with respect to the 16th and 20th causes of action, on
the ground that “California law does not recognize a cause of
action for conversion of money or wages due under a contract.”
Voris also filed a motion seeking a pretrial determination
as to “whether and to what extent the October 19, 2011
Judgment in this action has res judicata and collateral estoppel
effect on the parties.” Voris’s motion also sought an order
enabling him to present his case against suspended corporation
PropPoint to the jury without opposition. Voris argued that if he
were to establish PropPoint’s liability for conversion, Lampert
would have the opportunity to present his evidence and argument
that he was not personally liable for PropPoint’s conversion.
On January 15, 2015, the motions came on for hearing.
The trial court granted Lampert’s motions for judgment on
the pleadings with respect to Voris’s stock conversion and wage
conversion claims, as requested.
The trial court then denied Voris’s motion, which (1) sought
a determination as to whether and to what extent collateral
estoppel or res judicata applied to Voris’s claims against Lampert
based on Voris’s October 2011 judgment against Sportfolio and
Liquiddium, and (2) an order enabling Voris to present his case
against PropPoint without opposition. The trial court reasoned
Voris’s motion was moot because “Lampert, based on these
rulings, is out of the case.”
Voris proceeded to a bench trial against PropPoint and was
awarded damages of $171,951.02 plus $126,795.84 in
prejudgment interest.

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On May 21, 2015, the trial court entered judgment in favor
of Lampert and against Voris, and in favor of Voris against
PropPoint.
On July 28, 2015, Voris filed a timely notice of appeal from
the judgment in favor of Lampert, notice of entry having been
served on May 29, 2015.
On August 25, 2015, the trial court granted Lampert’s
motion for reasonable attorney fees pursuant to the Liquiddium
operating agreement, and awarded Lampert $125,100 in fees and
$2,385.50 in costs.
On August 28, 2015, the trial court granted Voris’s motion
for an award of attorney fees against PropPoint pursuant to
Labor Code section 218.5, finding that Voris was the prevailing
party in a claim for nonpayment of wages and was entitled to
$35,274.88 in fees and $20,246.54 in costs.
On October 9, 2015, Voris filed a second notice of appeal,
specifying the August 25, 2015 order awarding attorney fees and
costs to Lampert.
CONTENTIONS
Voris contends: it is law of the case, based on Voris I, that
Lampert may be held personally liable for conversion; the trial
court erred in granting Lampert’s motion for judgment on the
pleadings on his wage conversion claims and his stock conversion
claims; the trial court erred in refusing to allow Voris to present
evidence and argument as to the impact of res judicata and
collateral estoppel on Voris’s claims against Lampert; and if the
judgment on the pleadings is reversed, the award of attorney fees
to Lampert should also be reversed.

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DISCUSSION
1. Prior decision in Voris I is not law of the case with
respect to the viability of Voris’s conversion claims.
Voris contends this court in Voris I clearly held that his
conversion claims against Lampert are not dependent on alter
ego liability, and therefore Lampert is now barred from asserting
that Voris must prove alter ego liability to prevail on his
conversion claims against Lampert. Voris asserts it is law of the
case that Lampert may be held personally liable for conversion.
The law of the case doctrine states that when, in deciding
an appeal, an appellate court states in its opinion a principle or
rule of law necessary to the decision, that principle or rule
becomes the law of the case and must be adhered to throughout
its subsequent progress, both in the lower court and upon
subsequent appeal. (Kowis v. Howard (1992) 3 Cal.4th 888, 892–
893.)
The issue before this court in Voris I was whether Lampert
was entitled to summary judgment with respect to Voris’s alter
ego allegations against him. We concluded that Lampert was
entitled to summary adjudication on Voris’s alter ego claims
because Voris failed to specify evidence supporting his alter ego
allegations. However, with respect to the 14th through 20th
causes of action, we noted that as an officer or director of the
corporate entities, Lampert could be held individually liable for
intentional torts, without regard to whether the corporate veil
should be pierced. (Voris I, supra, slip opn., p. 11.)
However, Voris I did not determine whether unpaid wages
or withheld shares of stock could be the basis of a cause of action
for conversion, and therefore is not law of the case on those
issues. We now examine those questions.

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2. Trial court properly granted Lampert’s motion for
judgment on the pleadings on Voris’s claim for conversion of
wages because unpaid wages do not give rise to a cause of action
for conversion.
a. General principles.
“ ‘ “ ‘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 . . . .’ ” ’ (Welco Electronics, Inc.
v. Mora (2014) 223 Cal.App.4th 202, 208.)” (Lee v. Hanley (2015)
61 Cal.4th 1225, 1240.)
Under California law, “ ‘[m]oney 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.
[Citation.]’ . . . Fischer v. Machado (1996) 50 Cal.App.4th 1069,
1072–1074 [sales agent liable for conversion of proceeds from
consignment sale of farm products]; Software Design &
Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th
472, 485 [‘money cannot be the subject of a conversion action
unless a specific sum capable of identification is involved.’].) A
‘generalized claim for money [is] not actionable as conversion.’
(Vu v. California Commerce Club, Inc. (1997) 58 Cal.App.4th 229,
235; 5 Witkin, Summary of Cal. Law (10th ed. 2005), Torts, § 703,
pp. 1026–1027.)” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs,
Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395
(PCO).)
The tort of conversion “is derived from the common law
action of trover. The gravamen of the tort is the defendant’s

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hostile act of dominion or control over a specific chattel to which
the plaintiff has the right of immediate possession. (See
generally, Rest.2d Torts, § 222A, com. a, p. 431; 1 Dobbs, The
Law of Torts (2001), § 59, pp. 121–122.) That is why money can
only be treated as specific property subject to being converted
when it is ‘identified as a specific thing.’ (Baxter v. King (1927)
81 Cal.App. 192, 194 [‘It is true that sometimes money can be
treated as specific property, and where identified can form the
basis of an action for conversion and might also be the subject of
an action for the specific recovery of personal property’].)” (PCO,
supra, 150 Cal.App.4th at p. 395.)
The “California Supreme Court [has] stated, ‘While it is
true that money cannot be the subject of an action for conversion
unless a specific sum capable of identification is involved
[citation], it is not necessary that each coin or bill be earmarked.’
(Haigler v. Donnelly [(1941)] 8 Cal.2d [674,] 681.) This statement
appears to be in conformity with the modern view of the law. As
one authority wrote: ‘Identifiable, specific coins or bills are
subject to conversion if they are identifiable as the particular
coins or bills taken from the plaintiff. The old idea that money
could be converted only if it was in a “bag” now seems obsolete.
Today, it might be plausible to say that when the defendant
commits an affirmative act and physically takes control of
particular paper monies he is guilty of conversion, even if the
particular bills or coins cannot be identified. Certainly the
plaintiff is entitled to recover on some theory, even if not on the
basis of conversion.’ (1 Dobbs, The Law of Torts, supra, § 63,
pp. 132–133, fns. omitted.)” (PCO, supra, 150 Cal.App.4th at
p. 396.)

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California cases “permitting an action for conversion of
money typically involve those who have misappropriated,
commingled, or misapplied specific funds held for the benefit of
others. (See, e.g., Haigler v. Donnelly, supra, 18 Cal.2d at p. 681
[real estate broker[, while acting as agent for lessors, retained
funds received from lessee]]; Fischer v. Machado, supra,
50 Cal.App.4th at pp. 1072–1074 [sales agent for consigned farm
products]; Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599
[attorney’s claim for $6,750 fee from proceeds of settlement
subject to lien]; Watson v. Stockton Morris Plan Co. (1939)
34 Cal.App.2d 393, 403 [savings and loan issued duplicate
passbook and delivered funds to third party].) In each of these
cases, the amount of money converted was readily ascertainable.”
(PCO, supra, 150 Cal.App.4th at p. 396, italics added.)
In contrast, “actions for the conversion of money have not
been permitted when the amount of money involved is not a
definite sum. (Vu v. California Commerce Club, Inc., supra,
58 Cal.App.4th at p. 235; Software Design & Application, Ltd. v.
Hoefer & Arnett, Inc., supra, 49 Cal.App.4th at p. 485 [no
conversion where money was allegedly misappropriated ‘over
time, in various sums, without any indication that it was held in
trust for’ plaintiff]; . . . . For example, in Vu v. California
Commerce Club, Inc., supra, 58 Cal.App.4th 229, the court
affirmed a [defense] summary judgment on a conversion claim
[brought by] two gamblers who lost ‘approximately $1.4 million’
and ‘approximately $120,000,’ respectively, at a specific card club
during specified periods of time, due to alleged cheating. (Id. at
pp. 231–232.) The [Vu ] court held, ‘neither by pleading nor
responsive proof did plaintiffs identify any specific, identifiable
sums that the club took from them. That rendered the

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generalized claim for money not actionable as conversion.’ (Id. at
p. 235.)” (PCO, supra, 150 Cal.App.4th at pp. 396–397.)3
b. Applying the law to Voris’s factual allegations, no cause
of action is stated for conversion of unpaid wages.
Voris pled that at the time he was terminated, PropPoint
and Sportfolio owed him $91,000 and $66,000 in wages,
respectively, he had a possessory right to those monies, he
demanded his wages, and Lampert intentionally prevented him
from receiving his earnings.
Guided by the authorities set forth above, we conclude the
claim for conversion of unpaid wages is not well pled because “the
simple failure to pay money owed does not constitute conversion.
A cause of action for conversion of money can be stated only
where a defendant interferes with the plaintiff’s possessory
interest in a specific, identifiable sum, such as when a trustee or
agent misappropriates the money entrusted to him.” (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284.) We
recognize Voris duly pled the specific sums that he allegedly was
owed.
3 In PCO, the trial court granted summary adjudication
against plaintiffs on their conversion claim on the ground that
they failed to identify a definite sum of money received by the
defendant law firm. (PCO, supra, 150 Cal.App.4th at p. 395.)
Although plaintiffs pled a conversion of 10 duffel bags, each
containing $500,000, at the summary judgment stage, plaintiffs
failed to present evidence of a definite, identifiable sum of money,
and the evidence of the sum involved “reflect[ed] amounts
varying by millions of dollars.” (Id. at p. 397.) Due to plaintiffs’
inability to identify a specific sum, summary adjudication on the
conversion claim was proper. (Ibid.)

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Nonetheless, Lampert, as a corporate officer or director,
was not a trustee or agent entrusted with Voris’s earnings.
Although an employer is obligated to pay an employee the wages
that the employee has earned, it does not follow that an employer
is entrusted with an employee’s earnings. Nor does it follow that
an employer’s failure to pay bargained-for wages to an employee
is a misappropriation of funds which is actionable as conversion.
Under the current state of California law, the alleged failure to
pay Voris the sums that he earned while in the employ of
Sportfolio and PropPoint does not give rise to a cause of action
against Lampert for conversion.
We are also guided by our Supreme Court’s decision in
Moore v. Regents of University of California (1990) 51 Cal.3d 120
(Moore). In that case, the court was similarly presented with a
proposed extension of the tort of conversion to an entirely new
context. There, the plaintiff sought to impose conversion liability
for defendants’ unauthorized use of his cells in medical research.
(Id. at pp. 134–135.) Moore “recognized that, when the proposed
application of a very general theory of liability in a new context
raises important policy concerns, it is especially important to face
those concerns and address them openly.” (Id. at p. 135.) Moore
concluded “[t]here are three reasons why it is inappropriate to
impose liability for conversion based upon the allegations of
[plaintiff’s] complaint. First, a fair balancing of the relevant
policy considerations counsels against extending the tort.
Second, problems in this area are better suited to legislative
resolution. Third, the tort of conversion is not necessary to
protect patients’ rights. For these reasons, we conclude that the
use of excised human cells in medical research does not amount
to a conversion.” (Id. at pp. 142–143.) We recognize that Moore

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involved the alleged conversion of a patient’s biological material,
not money. Notwithstanding the difference in factual context,
Moore’s cautioning against extending tort liability for conversion
is instructive.
Turning to whether, as the dissent argues, an action for
conversion should lie to recover unpaid wages, we make the
observation that Labor Code section 201 requires an employer to
promptly pay the wages of a discharged employee, and the
statutory scheme authorizes a penalty for the employer’s
noncompliance. (Id. at § 203.) Indeed, Voris’s complaint included
causes of action for unpaid wages under the applicable Labor
Code provisions. However, if Voris’s approach were credited, any
claimed wage and hour violation would give rise to tort liability
for conversion as well as the potential for punitive damages. At
this juncture, given the adequacy of the statutory remedies, we
reject Voris’s attempt to extend tort liability in this area.
c. Authorities cited by Voris do not support his contention
that unpaid wages are recoverable in an action for conversion.
The parties agree that no California appellate decision has
specifically held that a cause of action lies for conversion of
unpaid wages. Voris concedes “[t]here appears to be no
controlling California authority directly ruling on the viability of
a conversion claim for unpaid wages.” However, Voris asserts
there is California authority “suggesting such a conversion claim
would lie.” We address Voris’s cited authorities seriatim and
conclude they do not support his theory.
Voris cites Loehr v. Ventura County Community College
Dist. (1983) 147 Cal.App.3d 1071 (Loehr), which states that
“[e]arned but unpaid salaries or wages are vested property
rights.” (Id. at p. 1080.) However, the issue in Loehr was

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whether the plaintiff was required to file a timely claim pursuant
to the Tort Claims Act (Gov. Code, § 900 et seq.), or whether his
action fell within statutory “exceptions to filings involving claims
by public employees for salaries, wages and expenses (Gov. Code,
§ 905, subd. (c)) and claims for benefits under retirement or
pension systems (Gov. Code, § 905, subd. (f)).” (Loehr, supra, at
p. 1080.) Despite its generalized statement that earned but
unpaid wages constitute property rights, Loehr does not stand for
the proposition that earned but unpaid wages are recoverable in
an action for conversion.
Next, Voris relies on Cortez v. Purolator Air Filtration
Products Co. (2000) 23 Cal.4th 163 (Cortez), involving the unfair
competition law (UCL). Cortez held that “orders for payment of
wages unlawfully withheld from an employee are . . . a
restitutionary remedy authorized by [Business and Professions
Code] section 17203.” (Cortez, supra, at p. 177.) Thus, Cortez
determined that unlawfully withheld wages are recoverable in a
restitutionary order pursuant to the UCL. Cortez is not support
for the proposition that unpaid wages are recoverable in a cause
of action for conversion.
Voris then cites Department of Industrial Relations v. UI
Video Stores, Inc. (1997) 55 Cal.App.4th 1084 (Department) for
the principle that a conversion cause of action may be maintained
against an employer to recover illegally withheld wages. There,
the Division of Labor Standards Enforcement (DLSE) negotiated
a settlement with Blockbuster for reimbursement of funds paid
by employees for uniforms in contravention of California law.
(Id. at p. 1088.) Rather than comply with the settlement
agreement, which required Blockbuster to deliver the checks
directly to the DLSE, Blockbuster mailed the checks directly to

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the employees and then retained the checks that were returned
as undeliverable, refusing to turn them over to the DLSE and
instead retaining the funds. (Ibid.) The Department court found
that the DLSE had properly alleged a claim for conversion based
on Blockbuster’s retention of the undeliverable checks. (Id. at
pp. 1095–1096.) Voris’s reliance on Department is misplaced
because that case involved the conversion of settlement checks,
not wages.
Finally, Voris cites Lu v. Hawaiian Gardens Casino, Inc.
(2010) 50 Cal.4th 592 (Lu), which examined whether Labor Code
section 351, barring employers from taking any gratuity patrons
leave for their employees, provides employees a private right of
action. (Id. at pp. 594–595.) After concluding the statute does
not provide a private cause of action, Lu added that its holding
“does not necessarily foreclose the availability of other remedies.
To the extent that an employee may be entitled to certain
misappropriated gratuities, we see no apparent reason why other
remedies, such as a common law action for conversion, may not
be available under appropriate circumstances.” (Id. at pp. 603–
604.) However, Lu’s suggestion that an employer’s
misappropriation of gratuities left by patrons for its employees
may be recoverable in an action for conversion does not lead to
the conclusion that unpaid wages may be the subject of a
conversion action by the employee against the employer.
In sum, notwithstanding the plethora of wage and hour
litigation, California case law has not extended the tort of
conversion to cover a claim by an employee against an employer
for unpaid wages. Further, given the state of the law, Voris is

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incapable of amending his pleading to state a cause of action for
conversion of unpaid wages.4
3. Trial court erred in granting Lampert’s motion for
judgment on the pleadings on Voris’s stock conversion claims.
Voris pled, inter alia: He invested $27,000 in PropPoint in
exchange for a 5.45 percent ownership interest and had a
possessory right to a share certificate reflecting his ownership,
but Lampert denied him access to his share certificate and all
rights conferred on him by virtue of his ownership interest (14th
cause of action). Voris also was promised a 10 percent ownership
interest in PropPoint in exchange for services he performed for
4 Voris also relies, inter alia, on certain federal district court
decisions for the proposition that unpaid wages are recoverable in
an action against the employer for conversion. For example,
Sims v. AT&T Mobility Services LLC (E.D.Cal.2013) 955
F.Supp.2d 1110 opined that “if the issue were presented to the
California Supreme Court, it would approve a conversion action
for unpaid wages.” (Id. at p. 1120.) However, other district
courts have reached a contrary conclusion on the viability of a
conversion claim for unpaid wages. (See, e.g., In re Wal-Mart
Stores, Inc. Wage and Hour Lit. (N.D.Cal. 2007) 505 F.Supp.2d
609, 618–619 [claim for unpaid wages under the Labor Code
cannot form the basis for a claim of conversion given the
existence of the Labor Code’s detailed remedial scheme for
violation of its provisions].) In any event, “with the exception of
the decisions of the United States Supreme Court, the decisions
of federal courts are not binding on the courts of this state even
with respect to federal issues. [Citations.]” (Conrad v. Bank of
America (1996) 45 Cal.App.4th 133, 150.) Because the issue of
the viability of a conversion claim for unpaid wages is purely a
question of state law, we are not guided by the district courts on
this issue.

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PropPoint, but Lampert intentionally prevented him from having
access to his share certificate (15th cause of action). Also,
Lampert accepted $3,000 from Voris in exchange for an
ownership interest in Liquiddium, but Lampert intentionally
prevented him from having access to his share certificate (17th
cause of action). In addition, Lampert promised Voris a six
percent ownership interest in Liquiddium in exchange for
services he performed and his prior $3,000 investment, but
Lampert denied him access to his share certificate (18th cause of
action). Lastly, Lampert promised Voris a seven percent
ownership interest in Sportfolio in exchange for services he
rendered on Sportfolio’s behalf, but Lampert denied him access to
his share certificates and rights associated with ownership (19th
cause of action).
Lampert moved for judgment on the pleadings on the above
causes of action, relying primarily on Haro v. Ibarra (2009)
180 Cal.App.4th 823 (Haro).) There, the court found: “The
[second amended complaint] contains allegations sufficient to
state a cause of action for conversion: [plaintiffs] owned AHP
shares and [defendants] engaged in a scheme to deprive
[plaintiffs] of their shares, [defendants] wrongfully declared
[plaintiffs’] shares to be forfeited, with ‘no legal or factual basis
for said forfeiture,’ although [plaintiffs] were warned that their
shares would be forfeited if they did not pay the assessment,
other shareholders who did not pay the assessment did not have
their shares forfeited, and [plaintiffs] were harmed by the
wrongful forfeiture ‘in an amount equal to the fair market value
of the AHP shares at the time [d]efendants wrongfully exercised
dominion over said shares.’ ” (Id. at p. 835.)

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The trial court granted Lampert’s motion for judgment on
the pleadings, persuaded by the argument that Voris’s
allegations did not rise to the level of what was pled in Haro. We
disagree. We do not read Haro as a bar to Voris’s stock
conversion claims.
Haro itself recognizes: “ ‘It is the uniform rule of law that
shares of stock in a company are subject to an action in
conversion. [Citations.]’ (Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 122.)” (Haro, supra,
180 Cal.App.4th at p. 835.) Further, as already discussed, the
gravamen of the tort of conversion is the defendant’s hostile act of
dominion or control over a specific chattel to which the plaintiff
has the right of immediate possession. (PCO, supra, 150
Cal.App.4th at p. 395.) We conclude Lampert’s alleged retention
of Voris’s share certificates is actionable as a conversion.
Lampert emphasizes that in Haro, an aggrieved
shareholder’s shares were declared forfeited, and there was also
an allegation in Haro of disparate treatment in that other
shareholders who did not pay an assessment did not have their
shares forfeited. (Haro, supra, 180 Cal.App.4th at p. 835.)
However, Haro does not stand for the proposition that such
circumstances are essential to a claim of conversion. Haro
recognizes that “ ‘ “ ‘it is only necessary to show an assumption of
control or ownership over the property.’ ” ’ ” (Ibid.) Voris’s
allegations that he had a possessory right to his share
certificates, and that Lampert “intentionally prevented” him from
having access to his share certificates, are sufficient to state a
claim for conversion of stock.
Finally, Lampert asserts judgment on the pleadings on the
stock conversion claim was proper because he is protected by the

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business judgment rule, which establishes a presumption that
directors’ decisions are based on sound business judgment and
prohibits courts from interfering in business decisions made by
the directors in good faith and in the absence of a conflict of
interest. (Berg & Berg Enterprises, LLC v. Boyle (2009)
178 Cal.App.4th 1020, 1045 (Berg).) However, the argument is
unpersuasive. Berg states the failure to sufficiently plead facts to
rebut the business judgment rule may be raised on demurrer to a
cause of action against a director for breach of fiduciary duty.
(Id. at p. 1046.) Berg does not stand for the proposition that a
cause of action for conversion must plead facts to rebut the
business judgment rule.
We conclude the trial court erred in granting judgment on
the pleadings on Voris’s causes of action against Lampert for
conversion of his share certificates.
4. Voris’s pretrial motion to determine the impact of his
October 19, 2011 judgment against Sportfolio and Liquiddium on
his claims against Lampert is no longer moot; trial court also
should address the impact on Lampert of Voris’s judgment
against PropPoint.
As indicated, the October 19, 2011 judgment determined
that Liquiddium and Sportfolio were liable for the conversion of
Voris’s ownership interests in the amounts of $55,599.32 and
$52,631.58, respectively.
In a pretrial motion filed December 22, 2014, Voris
requested that the trial court conduct a bench trial to determine
whether and to what extent res judicata and collateral estoppel
apply to his causes of action against Lampert. After granting
Lampert’s motions for judgment on the pleadings in their
entirety, the trial court ruled that Voris’s motion to determine

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whether res judicata or collateral estoppel applied to Voris’s
claims against Lampert was moot because “Lampert, based on
these rulings, is out of the case.”
However, our reversal of the order granting judgment on
the pleadings on Voris’s stock conversion claims means the issue
of the impact of the October 2011 judgment on Voris’s stock
conversion claims against Lampert is not moot. On remand, the
trial court should address Voris’s motion requesting adjudication
of the issue of whether, and to what extent, the October 2011
judgment had any res judicata or collateral estoppel effect on
Voris’s claims against Lampert.
Voris’s pretrial motion also requested that in the first
phase of the jury trial, he be permitted to present his case against
PropPoint without opposition (given PropPoint’s status as a
suspended corporation), and that if he “does establish liability in
PropPoint for conversion, Mr. Lampert can then proceed to
present his evidence and argument that he is not personally
liable for the PropPoint conversions.” The trial court also denied
this aspect of Voris’s motion as moot. Thereafter, Voris’s action
against PropPoint proceeded to trial, and Voris was awarded
damages against PropPoint in the amount of $171,951.02 plus
prejudgment interest of $126,795.84.
Voris contends that on remand he should also be given the
opportunity to present evidence and argument regarding the
collateral estoppel effect, if any, of the May 2015 judgment
against PropPoint. The argument is meritorious. In view of our
reinstatement of Voris’s stock conversion claims against
Lampert, the issue of collateral estoppel with respect to the
judgment against PropPoint also is not moot.

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We express no opinion as to whether collateral estoppel or
res judicata apply to Voris’s claims against Lampert. We merely
hold the issue is not moot and should be addressed on remand.
5. Because the litigation against Lampert is ongoing, the
postjudgment award of attorney fees and costs to Lampert must
be reversed.
Based on the May 21, 2015 judgment, the trial court
deemed Lampert the prevailing party. On August 25, 2015, the
trial court awarded Lampert $125,100 in attorney fees against
Voris pursuant to the Liquiddium operating agreement, as well
as costs.
The reversal of the judgment on the pleadings on Voris’s
stock conversion claims means that Lampert is not the prevailing
party at this juncture. Therefore, the August 25, 2015 order
awarding attorney fees and costs to Lampert must be reversed.

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DISPOSITION
The judgment on the pleadings is reversed with respect to
Voris’s causes of action against Lampert for conversion of stock
and is otherwise affirmed. In determining Lampert’s liability for
conversion of Voris’s shares, the trial court shall also determine
whether collateral estoppel or res judicata apply to Voris’s claims
against Lampert based on Voris’s judgments against Liquiddium,
Sportfolio and PropPoint. The August 25, 2015 postjudgment
order awarding $125,100 in attorney fees and $2,385.50 in costs
to Lampert is also reversed. Voris shall recover his costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
ALDRICH, J.

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LAVIN, J., Concurring and Dissenting.
I agree with the majority’s analysis of Brett Voris’s claims
for conversion of stock and concur in its holding that the trial
court erred in granting Greg Lampert’s motion for judgment on
the pleadings as to those causes of action. I also agree that the
award of attorneys’ fees must be reversed and, on remand, the
court should determine whether collateral estoppel or res
judicata apply to Voris’s claims. I respectfully disagree, however,
with the majority’s conclusion that Voris has not adequately pled
claims for conversion of unpaid wages.
Conversion is “the wrongful exercise of dominion over the
property of another.” (Oakdale Village Group v. Fong (1996)
43 Cal.App.4th 539, 543.) To state a claim for conversion,
a plaintiff must allege that (1) he had ownership or the right to
possess the property at issue at the time of the conversion; (2) the
defendant converted the property by wrongful act, including
preventing the plaintiff from having access to it; and (3) the
plaintiff suffered damages as a result of defendant’s conduct.
(Id. at pp. 543–544; CACI No. 2100.) “Money cannot be the
subject of a cause of action for conversion unless there is
a specific, identifiable sum involved[.]” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007)
150 Cal.App.4th 384, 395 (PCO).) While a specific sum must be
capable of identification, the law does not, as acknowledged by
the majority, require a plaintiff to identify the physical coins or
notes allegedly converted. (Haigler v. Donnelly (1941) 18 Cal.2d
674, 681.)
Here, Voris alleges Lampert intentionally prevented him
from receiving $91,000 from Premier Ten Thirty One Capital
(PropPoint) and $66,000 from Sportfolio, Inc. (Sportfolio) in

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past-due wages, Voris had an immediate possessory right to those
monies, and Lampert’s actions were a substantial factor in
causing Voris harm. According to Voris, Lampert held
substantial ownership interests in, and controlled, PropPoint and
Sportfolio. Voris also alleges that Lampert intended to take
advantage of Voris’s willingness to defer his salary to induce him
to work hard so that the value of PropPoint and Sportfolio would
increase and, presumably, make Lampert’s investments in both
companies more valuable. Voris has, in my view, adequately pled
claims against Lampert for conversion of Voris’s unpaid wages
from PropPoint and Sportfolio.
Although the majority concedes that Voris pled the specific
sums that he was allegedly owed, it contends that his wage
claims must fail because Lampert was not entrusted with Voris’s
earnings. A conversion claim, however, does not require that
a specific lump sum of money be entrusted to the defendant; the
plaintiff must merely prove a specific, identifiable sum of money
that was interfered with, and Voris has alleged just that. (See
CACI No. 2100; Welco Electronics, Inc. v. Mora (2014)
223 Cal.App.4th 202, 216 [“There is no requirement that the
money have been held in trust—only that it be
misappropriated”]; cf. PCO, supra, 150 Cal.App.4th at p. 396
[noting only that “California cases permitting an action for
conversion of money typically involve those who have
misappropriated, commingled, or misapplied specific funds held
for the benefit of others,” italics added].) Regardless, although
Voris’s complaint does not expressly state Lampert was entrusted
with Voris’s wages, the allegations, broadly read (as they should
be on a motion for judgment on the pleadings), are sufficient to
show Lampert controlled the monies owed to or earmarked for

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Voris by the two corporate entities that employed him, and
benefitted from the non-payment of Voris’s wages.
Ultimately, the majority rejects Voris’s “attempt to extend
tort liability in this area” because it fears that “any claimed wage
and hour violation would give rise to tort liability for conversion
as well as the potential for punitive damages.” (Maj. Opn., at
p. 13.) The majority’s parade of horribles is unpersuasive for at
least three reasons.
First, with respect to punitive damages, liability is limited
by statute and well-settled case law. (Civ. Code, § 3294
[requiring proof by clear and convincing evidence of malice,
oppression or fraud]; Simon v. San Paolo U.S. Holding Co., Inc.
(2005) 35 Cal.4th 1159, 1179–1180 [recognizing due process
concerns arising from excessive punitive damages awards, citing
BMW of North America v. Gore (1996) 517 U.S. 559, 575].)
Accordingly, if a corporate officer performs his duties
conscientiously, and without malice, oppression or fraud, he has
nothing to fear. Further, liability of individual employees is also
inherently limited: Labor Code section 2802 requires an employer
to defend or indemnify an employee who is sued by third persons
for conduct in the course and scope of his employment. (See
Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1100 [“The
statute requires the employer not only to pay any judgment
entered against the employee for conduct arising out of his
employment but also to defend an employee who is sued for such
conduct,” italics added].) That is, an employee responsible for
interfering with the payment of accrued wages to a third party
will be protected against personal liability if the employee was
acting at the direction of the employer.

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Second, liability for conversion is also limited. In my view,
the case by case consideration of such factors as the forseeability
of the injury and the nexus between the defendant’s conduct and
the plaintiff’s injury, together with ordinary principles of tort
law, “are fully adequate to limit recovery without the drastic
consequence of an absolute rule which bars recovery in all such
cases.” (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 808.)
Third, any burden on the part of employers arising from
potential tort liability for conversion is outweighed by the average
worker’s need for the prompt and complete payment of his
accrued wage claim. California courts have long recognized that
wage and hour laws concern not only the health and welfare of
the workers themselves, but also the public health and general
welfare. (See, e.g., Gould v. Maryland Sound Industries, Inc.
(1995) 31 Cal.App.4th 1137, 1148–1149 [discharge of employee to
avoid paying commissions, vacation pay, and other amounts he
had earned violated a fundamental public policy of this state].)
Furthermore, the Legislature’s decision to criminalize certain
employer violations of the overtime and minimum wage laws
(Lab. Code, § 1199), including the failure to pay earned wages,
reflects a determination that such conduct affects a broad public
interest. Put another way, “because of the economic position of
the average worker and, in particular, his dependence on wages
for the necessities of life for himself and his family,” wages are
not ordinary debts. (In re Trombley (1948) 31 Cal.2d 801, 809.)
As such, an employer who knows that wages are due and has the
ability to pay them, but still refuses to do so, intentionally acts in
a manner that should lead to tort liability.
I also note, as a general matter, that the tort of conversion
has expanded well beyond its original boundaries. For example,

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in holding that a misappropriation of a net operating loss without
compensation constitutes conversion, a prior panel of this court
recognized “that the common law of conversion, which developed
initially as a remedy for the dispossession or other loss of chattel
[citation], 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.)
To be sure, the California Supreme Court has not expressly
determined whether a plaintiff can maintain a common law claim
for conversion of wages. In Lu v. Hawaiian Gardens Casino, Inc.
(2010) 50 Cal.4th 592, 604 (Lu), however, the Court suggested
that employees whose tips had been pooled and redistributed, in
violation of a Labor Code provision that did not give rise to
a private right of action, could allege a common law claim for
conversion. Similarly, in Cortez v. Purolator Air Filtration
Products Co. (2000) 23 Cal.4th 163, 178 (Cortez), the Court
explained that the plaintiffs in that case could recover their
earned overtime wages as restitution because they had a vested
interest in their earned wages. The Court reached this result
because “equity regards that which ought to have been done
[citation], and thus recognizes equitable conversion.” (Ibid.)
Based on Lu and Cortez, I would hold that employees have
a vested property interest in their earned wages, that failure to

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pay them is a legal wrong that interferes with this property
interest, and that an action for conversion may therefore be
brought to recover unpaid wages.
In sum, the operative pleading adequately sets forth causes
of action for conversion of wages against Lampert. I would
reverse the trial court’s judgment in its entirety and remand the
matter for further proceedings.
LAVIN, J.

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