CACI 2100 Conversion—Essential Factual Elements

California Civil Jury Instructions CACI

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:]

[taking possession of the [insert item of personal property];] [or]

[preventing [name of plaintiff] from having access to the [insert item of personal property];] [or]

[destroying the [insert item of personal property];] [or]

[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.

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.” …’ ” (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.)

“[C]onversion is a strict liability tort. It does not require bad faith, knowledge, or even negligence; it requires only that the defendant have intentionally done the act depriving the plaintiff of his or her rightful possession.” (Voris v. Lampert (2019) 7 Cal.5th 1141, 1158 [250 Cal.Rptr.3d 779, 446 P.3d 284].)

“ ‘ “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 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.)

“[A] claim for unpaid wages resembles other actions for a particular amount of money owed in exchange for contractual performance—a type of claim that has long been understood to sound in contract, rather than as the tort of conversion.” (Voris, supra, 7 Cal.5th at p. 1156.)

“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 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 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.)

“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)