Fremont Indemnity Co. v. Fremont General Corp.

Opinion

Fremont Indemnity Company (Indemnity) appeals a judgment dismissing its complaint against Fremont General Corporation (Fremont General) and Fremont Compensation Insurance Group, Inc. (Insurance Group), after the court sustained a demurrer without leave to amend. Indemnity, by and through the Insurance Commissioner as its liquidator, sued Fremont General and Insurance Group in two separate actions alleging the misappropriation of funds. In this action, known as the Comstock action, Indemnity alleges that defendants misappropriated net operating losses of its predecessor in interest, Comstock Insurance Company (Comstock), and misappropriated other assets of a former subsidiary of Indemnity, Fremont Reinsurance Company, Ltd. (Bermuda) (Re). In a separate action, known as the NOL (net operating loss) action, Indemnity alleges that the same defendants misappropriated Indemnity’s net operating losses that were not acquired through its merger with Comstock. The NOL action is the subject of a separate appeal (Fremont Indemnity Co. v. Fremont General Corp. (Feb. 28, 2007) B188900 [nonpub. opn.]).

The superior court took judicial notice of a letter agreement dated July 2, 2002, and determined that the agreement allowed Fremont General to use the net operating losses in the manner alleged. The court also concluded that the complaint alleged counts on behalf of Re and against Re, which is not a party to this action. Indemnity contends the court erred by taking judicial notice of not only the existence of the letter agreement but also its enforceability and proper interpretation. Indemnity also challenges the sustaining of the demurrer on other grounds. We conclude that the court erred by taking judicial notice of the enforceability and proper interpretation of the letter agreement and by deciding those questions in ruling on the demurrer. We also conclude that the complaint alleges facts sufficient to constitute a cause of action for the conversion of intangible personal property. We conclude further that the sustaining of the demurrer cannot be affirmed on

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Indemnity is a wholly owned subsidiary of Insurance Group, which is a wholly owned subsidiary of Fremont General. Indemnity was engaged in the underwriting and sale of workers’ compensation insurance. Comstock was a wholly owned subsidiary of Insurance Group until March 2003, when Comstock was merged into Indemnity. Comstock was engaged in the underwriting and sale of multiple lines of property and casualty insurance before 1986, and at that time ceased issuing new or renewal policies and limited its business to its preexisting policies. Re was a wholly owned subsidiary of. Indemnity until September 2000, when Re was acquired by Insurance Group.

Fremont General, Insurance Group, and Indemnity entered into an agreement that was memorialized by a letter dated November 27, 2000, providing for the commissioner to supervise and provide regulatory oversight of Indemnity. The same parties, in the words of the complaint, “purported to enter into a second agreement, allegedly memorialized by a letter dated July 2, 2002,” on the same subject.

Comstock was merged into Indemnity in March 2003, as we have stated. The commissioner filed an application to be appointed conservator of Indemnity on June 3, 2003. The court appointed the commissioner as conservator on June 4, 2003, and appointed the commissioner as liquidator on July 2, 2003.

2. Complaint

Indemnity, by and through the commissioner, filed a complaint against Fremont General and Insurance Group in August 2004. Indemnity alleges that Fremont General dominated and controlled each of the insurance company subsidiaries and did so in a manner that benefited Insurance Group at the expense of Indemnity. Specifically, Indemnity alleges the. following facts.

Fremont General and Comstock entered into an intercompany tax allocation agreement in October 1996 providing for the two companies to file a' consolidated federal income tax return. The agreement provided that within three years after filing a consolidated tax return, Fremont General would pay Comstock for benefits that Fremont General received from claiming

The first two counts are alleged against Fremont General only, while counts three through twelve are alleged against both Fremont General and Insurance Group. The first three counts pertain to only the alleged misappropriation of Comstock’s net operating losses, while counts four through twelve pertain to that and also to the alleged misappropriation of assets involving Re.

Indemnity alleges similar theories of recovery against Fremont General and Insurance Group in the NOL action arising from the alleged misappropriation of Indemnity’s net operating losses that were not acquired through its merger with Comstock. In its first amended complaint in the NOL action filed in July 2004, Indemnity also alleges that the letter agreement dated July 2, 2002, did not relieve Fremont General of its obligation to pay fair and reasonable consideration for use of Indemnity’s net operating losses and alleges that to the extent the letter may be construed differently, the defendants obtained the commissioner’s consent to those terms by fraudulently concealing Indemnity’s precarious financial condition.

3. Demurrer

Fremont General and Insurance Group demurred to the complaint and each count alleged. They requested judicial notice of a letter dated July 2, 2002, and other documents. They cited no statutory authority for judicial notice, but argued that the court previously had taken judicial notice of the same letter in the NOL action and that reference to the document was essential to an understanding of the facts alleged in the complaint. The letter was from the commissioner and was addressed to the president of Insurance Group, who was also the president of Indemnity, and to the secretary and general counsel of Fremont General. The letter purported to express an agreement between the Department of Insurance, Fremont General, Insurance Group, and Indemnity. The letter stated among other things that Fremont General would contribute up to $92.75 million in cash to Insurance Group and Indemnity in 2002 and subsequent years and that, in return, Indemnity would transfer to Fremont General ¿11 rights with respect to “the net operating loss of or attributable to FIC [Indemnity] (‘the NOL’).” The letter stated that the payments would cease, however, if the commissioner obtained an order for

Fremont General and Insurance Group argued that counts one, two, and three fail to state a cause of action for two independent reasons. First, they argued that under the terms of the July 2, 2002, letter agreement, Indemnity transferred all of its past and future net operating losses to Fremont General, including those that Indemnity later acquired by merger with Comstock. Second, they argued that apart from the letter agreement, Fremont General had a fiduciary obligation to use Comstock’s net operating losses to offset the taxable income of other affiliated companies, and the net operating losses had no value to Indemnity because Indemnity had no taxable income, so Indemnity and Comstock were not entitled to compensation for use of the net operating losses. They also argued that count three is defective because the complaint fails to allege the terms of the intercompany tax allocation agreement or attach a copy of the agreement to the complaint.

Fremont General and Insurance Group argued that counts four through seven fail to state a cause of action to the extent they are based on the alleged, misappropriation of Comstock’s net operating losses, for the same reasons stated ante. They also argued that those counts fail to state a cause of . action based on the alleged misappropriation of Re’s assets because only Re, not Indemnity, is a.real party in interest with standing to sue on those counts, and the complaint does not allege a separate injury to Indemnity, as Re’s former shareholder; that to the extent those counts are based on Comstock’s alleged payment of commutations that were also Re’s liabilities, Re is an indispensable defendant and Fremont General and Insurance Group are not proper defendants; and, with respect to count seven, that the unauthorized.taking of an intangible property interest that is not merged with or reflected in tangible property is not an actionable conversion.

Fremont General and Insurance Group argued that counts eight, nine, and ten fail to state a cause of action because those counts are based on statutes and are required to be pleaded with particularity, but are not pleaded with particularity. They also argued that the letter agreement dated July 2, 2002, bars those counts to the extent they are based on the alleged misappropriation of Comstock’s net operating losses; that Indemnity alleges standing as Comstock’s creditor to avoid fraudulent transfers and preferences arising from Comstock’s payment of commutations, but Indemnity has no standing as Comstock’s creditor because the two companies have merged; that any claim arising from Comstock’s payment of commutations “must be asserted . . . against [Re]”; that only Re has standing to sue to remedy the alleged misappropriation of Re’s assets; that count eight, to the extent it is based on the alleged manipulation of Re, is barred by the four-year statute of

4. Related Appeals

We filed an opinion in case No. B182250 on September 20, 2006 (Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50 [ 49 Cal.Rptr.3d 82 ] (Fremont)), in which we reversed orders disqualifying counsel for Fremont General and Insurance Group in both the Comstock action and the NOL action. On this date, we have also filed an opinion in case No. B188900 (Fremont Indemnity Co. v. Fremont General Corp., supra, B188900) in which we reversed the judgment of dismissal after the sustaining of a demurrer without leave to amend to Indemnity’s complaint in the NOL action.

CONTENTIONS

Indemnity contends (1) the parties dispute whether the letter agreement is enforceable and its proper interpretation, and the court cannot resolve those disputes by reliance on judicial notice; (2) the letter agreement by its terms did not transfer Comstock’s net operating losses to Fremont General or relieve Fremont General of its liability to Comstock or Indemnity for use of those net operating losses; (3) the court effectively found that the commissioner was estopped from exercising his statutory powers as liquidator due to the letter agreement, but the commissioner as liquidator acts as a trustee for the benefit of creditors, a role distinct from his role as regulator, and the commissioner’s preliquidation regulatory activities cannot diminish or defeat his statutory powers as liquidator; (4) the commissioner cannot be estopped from acting for the benefit of innocent policyholders, creditors, and the public by avoiding preferences and fraudulent transfers; (5) Comstock’s net operating losses were the property of and had value to Indemnity, and Indemnity is entitled to compensation for Fremont General’s use of the net operating losses; (6) Indemnity has standing to sue Fremont General and Insurance Group for injuries suffered by Indemnity as a result of the defendants’ misappropriation of Re’s assets and manipulation of Re’s reinsurance obligations; and (7) counts four through six are not directed against Re, the defendants as Re’s corporate parents are not prejudiced by Re’s absence, and Re’s absence is not an obstacle to achieving complete relief among the parties.

1. Standard and Scope of Review

We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of Cal, Inc. (2001) 25 Cal.4th 412 , 415 [ 106 Cal.Rptr.2d 271 , 21 P.3d 1189 ].) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 , 1081 [ 6 Cal.Rptr.3d 457 , 79 P.3d 569 ].) We construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962 , 967 [ 9 Cal.Rptr.2d 92 , 831 P.2d 317 ].)

A court sustaining a demurrer without leave to amend is required to state “the specific ground or grounds upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer.” (Code Civ. Proc., § 472d.) The grounds for a demurrer are those listed in Code of Civil Procedure section 430.10, including among others the failure to state facts sufficient to constitute a cause of action (id., subd. (e)). The grounds for a demurrer differ from the reasons for sustaining a demurrer on a particular ground. A court sustaining a demurrer is required to state the specific grounds for its decision, but is not required to state its reasons for sustaining the demurrer on the specified grounds. (Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269 , 275 [ 29 Cal.Rptr.2d 398 ]; Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931 , 943 [ 143 Cal.Rptr. 255 ].) Regardless of whether the superior court complies with this requirement, a reviewing court reviews the judgment rather than the reasons for the judgment and must affirm the judgment if any of the grounds stated in the demurrer is well taken. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497 , 504, fn. 2 [ 146 Cal.Rptr. 614 , 579 P.2d 505 ]; Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662 , 670 [ 247 Cal.Rptr. 304 ]; Weinstock v. Eissler (1964) 224 Cal.App.2d 212 , 224-225 [ 36 Cal.Rptr. 537 ].)

The California Supreme Court has held that if a demurrer made on general and special grounds is sustained without leave to amend without specifying the grounds for the decision, the reviewing court must assume that the court sustained only the general demurrer and did not rule on the special demurrer. (Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529 , 544 [ 93 Cal.Rptr. 866 , 483 P.2d 34 ], overruled on another point in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679 , 685, 697, fn. 9 [ 21 Cal.Rptr.3d

2. The Court Erred by Taking Judicial Notice of the Proper Interpretation and Enforceability of the Letter Agreement and by Deciding Those Questions in Ruling on the Demurrer

Indemnity alleges in the complaint that Fremont General, Insurance Group; and Indemnity “purported to enter into a second agreement, allegedly memorialized by a letter dated July 2, 2002 (‘July 2, 2002 Letter’), to replace the November 27, 2000 Letter, but continuing the requirement from the November 27, 2000 Letter that Fremont Indemnity would submit to the Commissioner’s ongoing supervision and regulatory oversight.” Indemnity alleges that Fremont General and Insurance Group “breached the November 27, 2000 Letter and the July 2; 2002 Letter ... by concealing material transactions from the Commissioner as regulator of Fremont Indemnity and Comstock.” Indemnity alleges further that the transactions between Comstock and Re were not subject to the commissioner’s oversight under the July 2, 2002, letter agreement and that the alleged transfer of liabilities from Re to Comstock and then, merging of Comstock into Indemnity was “a violation of the terms of the July 2, 2002 Letter.” Thus, the complaint alleges the existence of a letter dated July 2, 2002, alleges that the letter purports to memorialize an agreement, and alleges that Fremont General and Insurance

Fremont General and Insurance Group requested judicial notice of a letter dated July 2, 2002. They cited no statutory authority for the request, but argued that the court had taken judicial notice of the same letter in the NOL action and that consideration of the letter was essential to a proper understanding of the allegations of the complaint. They cited Ingram v. Flippo (1999) 74 Cal.App.4th 1280 [ 89 Cal.Rptr.2d 60 ] and Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122 [ 226 Cal.Rptr. 321 ] for the latter proposition. Fremont General and Insurance Group argue on appeal that the trial court properly took judicial notice of the letter under Evidence Code section 452, subdivision (d), which authorizes judicial notice of court records. They argue that the letter was judicially noticeable because it was part of the superior court record in the NOL action. They argue further that under the terms of the letter agreement, the commissioner clearly and unambiguously released them from any liability to Indemnity for their use of Comstock’s net operating losses.

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. (Post v. Prati (1979) 90 Cal.App.3d 626 , 633 [ 153 Cal.Rptr. 511 ].) Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449 , 457, fn. 9 [ 84 Cal.Rptr.2d 843 , 976 P.2d 214 ].) StorMedia stated: “In mling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369 , 374 [ 228 Cal.Rptr. 878 ].)” (Ibid.)

Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at page 374 stated: “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023 , 1038 [ 96 Cal.Rptr. 338 ].) On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co.[, supra,] 181 Cal.App.3d [at p.] 127 [ 226 Cal.Rptr. 321 ].) ‘A demurrer is simply not the appropriate procedure

Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807 [ 233 Cal.Rptr. 794 ] illustrates the same principle but with respect to a document attached to the complaint. Southern Pacific Land Co. involved an action for declaratory relief and breach of contract relating to an oil and gas lease that was attached to the complaint, rather than judicially noticed. The plaintiff alleged that the lease did not terminate under its own terms, while the defendant maintained that the lease had terminated. (Id. at pp. 811-812, 815.) The trial court interpreted the lease and sustained a demurrer to the complaint. The plaintiff argued on appeal that it was entitled to an opportunity to present extrinsic evidence in support of its interpretation of the lease. The Court of Appeal agreed and held that the trial court in ruling on the demurrer without the benefit of extrinsic evidence could not construe the ambiguous lease in a manner contrary to the plaintiff’s interpretation as alleged in the complaint. (Id. at pp. 816-817.)

Thus, a court ruling on a demurrer cannot decide a question that may depend on disputed facts by means of judicial notice. This rule applies not only with respect to the interpretation of a contract, but also with respect to its enforceability. A court ruling on a demurrer cannot take judicial notice that a contract submitted in support of the demurrer is binding and enforceable if the plaintiff claims the contract is unenforceable due to fraud or duress (see Civ. Code, § 1567). (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137 , 1145-1146 [ 37 Cal.Rptr.2d 718 ].) Gould held that it was error for the trial court to take judicial notice of the enforceability of a written contract for purposes of ruling on a demurrer when the plaintiff claimed that he had signed the document under duress. (Ibid.)

Indemnity does not allege in the complaint either that the July 2, 2002, letter agreement released the defendants from liability to Indemnity for their use of Comstock’s net operating losses or that the letter agreement is an enforceable contract. Because the parties disputed and continue to dispute the proper interpretation of the letter agreement, we conclude that the trial court erred by interpreting the document in ruling on the demurrer. Moreover, the parties also dispute the enforceability of the letter agreement. Indemnity

The cases cited by Fremont General and Insurance Group in the trial court are distinguishable. The plaintiff in Ingram v. Flippo, supra, 74 Cal.App.4th 1280 alleged that the district attorney published a letter and a me,dia release stating inaccurately that school district board members had violated the Ralph M. Brown Act (Brown Act) (Gov. Code, § 54950 et seq.). The plaintiff sought declaratory and injunctive relief under the Brown Act. The complaint quoted from and summarized parts of the letter, the defendant filed a copy of the letter and media release in support of the demurrer, and both sides referred to the letter and quoted from it at the hearing on the demurrer. The defendants requested judicial notice of the letter and media release on appeal under Evidence Code section 452, subdivision (h), and the plaintiff did not oppose the request. Noting all of those circumstances, the Court of Appeal granted the request for judicial notice of the letter and media release. (Ingram, supra, at p. 1285, fn. 3.) The Court of Appeal did not resolve conflicting interpretations of those documents or decide any question of enforceability, as the superior court did here. Rather, Ingram held that the plaintiff failed to state a cause of action for declaratory relief under the Brown Act because she did not allege that the district attorney had violated the Brown Act, and that the plaintiff was not entitled to an injunction because the district attorney was specifically authorized to file an action under the Brown Act if he determined that a violation had occurred. (Ingram, supra, at pp. 1290-1291.)

The plaintiffs in Marina Tenants Assn. v. Deauville Marina Development Co., supra, 181 Cal.App.3d 122 alleged that they were third party beneficiaries of a master lease between the defendants and the County of LosAngeles. They alleged that they had paid excessive rents that were not “ ‘fair and reasonable’ ” as required under the lease and sought to recover the alleged excess amounts as damages. The complaint alleged some of the lease terms, and the trial court took judicial notice of the entire master lease. (Id. at pp. 126-127 & 128, fn. 1.) On appeal, no party challenged the taking of judicial notice. The Court of Appeal stated that the plaintiffs had pled only selected portions of the lease and that it was proper for the trial court to consider the entire lease. (Id. at p. 130.) Marina Tenants stated that the lease

The cases cited by Fremont General and Insurance Group on appeal also are distinguishable. The plaintiff in Ascherman v. General Reinsurance Corp. (1986) 183 Cal.App.3d 307 [ 228 Cal.Rptr. 1 ] sued a reinsurer, alleging that the plaintiff as the insured was a third party beneficiary of a reinsurance contract. He sought to recover the cost of defending an action from the reinsurer after his liability insurer’s liquidation, alleging counts for declaratory relief and unjust enrichment. The Court of Appeal stated that the trial court properly took judicial ndtice of both the reinsurance contract and a release in favor of the reinsurer from the Illinois Director of Insurance. (Id. at pp. 310-311.) Ascherman concluded that, consistent with reinsurance contracts generally, the terms of the reinsurance contract indicated that the plaintiff was not án intended beneficiary, and therefore concluded that the complaint failed to state a cause of action for declaratory relief. (Id. at pp. 310-312.) Ascherman also concluded that the complaint failed to state a cause of action for unjust enrichment because the reinsurer had discharged its responsibilities under the reinsurance contract and obtained a release from the Director of Insurance, and because the plaintiff had failed to timely file a claim in liquidation. (Id. at pp. 310, 312 & fn. 6.) The parties in Ascherman did not dispute the enforceability of the reinsurance contract or release. Moreover, it appears' from the opinion that there was no significant dispute as to the interpretation of those documents and no contention that extrinsic evidence was relevant.

The plaintiff in Laughner v. Bryne (1993) 18 Cal.App.4th 904 [ 22 Cal.Rptr.2d 671 ] sought to recover damages on her own behalf for future medical and support expenses that she would incur to care for her injured child. The Court of Appeal concluded that the plaintiff was precluded from recovering those damages because she had settled and released claims for the same damages on behalf of her minor child. (Id. at pp. 910-912.) The trial court had approved the settlement and release and took judicial notice of the document in ruling on the demurrer. (Id. at pp. 907-908.) The parties did not dispute the enforceability of the release, and there was no contention that extrinsic evidence was relevant to its interpretation.

Finally, in Beck v. American Health Group Internal, Inc. (1989) 211 Cal.App.3d 1555 [ 260 Cal.Rptr. 237 ], the plaintiff sued for breach of contract and other counts based on an alleged written contract to employ the plaintiff as a hospital medical director and attached a copy of the alleged contract to the complaint. The alleged contract was a letter from the hospital to the plaintiff, countersigned by the- plaintiff, expressly stating that the letter was preliminary to a proposed “future agreement” and written contract. (Id. at pp. 1558-1559 & fn. 1.) The plaintiff did not allege that the letter was ambiguous or that it was susceptible of the interpretation that it was a present agreement. (Id. at pp. 1561-1562.) Beck cited the rule that if the plaintiff fails to allege that a document attached to the complaint has a special meaning, a court ruling on a demurrer will interpret the document on its face to determine as a matter of law whether it is reasonably susceptible of an interpretation that would support a cause of action. (Id. at p. 1561, citing Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743 , 749-750 [ 200 Cal.Rptr. 605 ] and California Assn, of Highway Patrolmen v. Department of Personnel Admin. (1986) 185 Cal.App.3d 352 , 361 [ 229 Cal.Rptr. 729 ].) Interpreting the letter on its face, Beck concluded that the letter was not a binding contract. (Beck, supra, at pp. 1562-1563.) Thus, the court interpreted the letter on its face without regard to the possibility of extrinsic evidence because the plaintiff relied on the letter as the basis for his cause of action but failed to allege any special meaning. Here, in contrast, Indemnity does not rely on the letter dated July 2, 2002, to support a cause of action and did not attach.a copy of the letter to its complaint, and therefore is not precluded from presenting extrinsic evidence concerning the enforceability and proper interpretation of the letter.

A demurrer must dispose of an entire cause of action to be sustained. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680 , 1682 [ 40 Cal.Rptr.2d 169 ].) Counts one, two, and three are based exclusively on the alleged misappropriation of Comstock’s net operating losses, while counts four through twelve are based on that and also on the alleged misappropriation of other assets involving Re. The trial court’s conclusion that Indemnity lacks standing to sue for injuries to Re and that some of the allegations are directed against Re concerns only the alleged misappropriation of assets involving Re and does not dispose of an entire count or cause of action. We therefore conclude that the demurrer cannot be sustained to any count based on the reasons cited by the trial court and express no opinion as to the validity of those reasons. We will now address the other reasons for general demurrer asserted in the demurrer but not relied on by the trial court.

4. The Complaint Adequately Alleges a Cause of Action for Conversion

Fremont General and Insurance Group demurred to count seven for conversion arguing that the unauthorized taking of an intangible property interest that is not merged with or reflected in tangible property is not actionable as conversion. Conversion is generally described as the wrongful exercise of dominion over the personal property of another. (Gruber v. Pacific States Sav. & Loan Co. (1939) 13 Cal.2d 144 , 148 [ 88 P.2d 137 ].) The basic elements of the tort are (1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062 , 1066 [ 80 Cal.Rptr.2d 704 ].)

Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559 , 1565 [ 54 Cal.Rptr.2d 468 ] stated, “Courts have traditionally refused to recognize as conversion the unauthorized taking of intangible interests that are not merged with, or reflected in, something tangible. (Adkins v. Model Laundry Co. (1928) 92 Cal.App. 575 , 583 [ 268 P. 939 ] [business goodwill]; Olschewski v. Hudson (1927) 87 Cal.App. 282 , 286-288 [ 262 P. 43 ] [competitor’s customer route]; Faircloth v. A.L. Williams & Associates (1992) 206 Ga.App. 764 [ 426 S.E.2d 601 , 604-605] [unpaid commissions not evidenced by a receipt or certificate]; Matzan v. Eastman Kodak Co. (1987) 134 A.D.2d 863 [ 521 N.Y.S.2d 917 , 918] [no protected interest in an idea].) And Dean Prosser has cautioned against scuttling conversion’s tangibility requirement altogether, recommending instead the use of other remedies to protect intangible interests. (Prosser &

Payne v. Elliot, supra, 54 Cal. at page 342 stated further: “It is, therefore, the ‘shares of stock’ which constitute the property which belongs to the shareholder. Otherwise, the property would be in the certificate; but the certificate is only evidence of the property; and it is not the only evidence, for a transfer on the books of the corporation, without the issuance of a certificate, vests title in the shareholder: the certificate is, therefore, but additional evidence of title, and if trover is maintainable for the certificate, there is no valid reason why it is not also maintainable for the thing itself which the certificate represents. For, as the Supreme Court of Connecticut say, ‘If a certificate of stock is unlawfully retained when demanded, what is presumed to have been converted? The certificate has no intrinsic value disconnected from the stock it represents. No one would say that the paper alone had been converted—that the conversion of the paper constitutes the entire wrong. The real act done in such cases is precisely the same as that done here—no more, no less; and to say that trover will lie in one case and not in the other, is to make a distinction where in reality there is no difference. * * * The stock in both cases was converted; and we think that in these days, when the tendency of courts is to do away with technicalities not based upon reason, a technical distinction of this character should no longer be sustained.’ (Ayres v. French, 41 Conn. 142 .) In Boylan v. Hagnel, 8 Nev. 352 , and in Kuhn v. McAllister, 1 Utah 273 , actions of this character for ‘shares of stock’ were sustained. It follows that the Court below did not err in overruling the demurrer to the complaint, or in rendering judgment for the plaintiff for the value of the stock and interest thereon from the time of the conversion until the time of the trial.”

Thus, Payne v. Elliot, supra, 54 Cal. 339 concluded that to allow a conversion action if the defendant misappropriated shares of stock by converting share certificates but disallow the action if the defendant misappropriated shares of stock without converting share certificates would perpetuate a “ ‘technicality] not based upon reason’ ” (id. at p. 342). Payne concluded that the defendant’s conversion of shares of stock, an intangible property interest, without converting share certificates was an actionable conversion.

Olschewski v. Hudson, supra, 87 Cal.App. at page 288 stated of Payne v. Elliot, supra, 54 Cal. 339 : “That case in fact does say: ‘The fiction on which the action of trover was founded, namely, that a defendant had found the property of another, which was lost, has become, in the progress of the law, an unmeaning thing which has been by most courts discarded; so that the

Olschewski v. Hudson, supra, 87 Cal.App. 282 held that the alleged misappropriation of a list of laundry customers, which was not reduced to writing but was known to an employee, was not an actionable conversion and affirmed the sustaining of a demurrer to the plaintiff’s complaint. Olschewski likened the list of laundry customers to a company’s goodwill and stated: “Unlawful interference with property rights in the goodwill of a business, or the benefits of trade and patronage of a specific list of customers in a definite route may be protected by injunctive relief in a court of equity. [Citations.] But there is nothing definite or tangible in the character of the ordinary list of laundry customers which makes an effort to transfer the district in which they live subject to an action in conversion. No authority has been furnished, which sustains the maintenance of an action in trover or conversion for the unlawful interference with a laundry route, or any similar property right. Clearly the proceeding in conversion was not intended to reach so intangible, uncertain, and indefinite a property right. The very meaning of the word ‘conversion,’ as it is used in this sense, is to ‘change into another form, substance or state; to transform, or change, as in law, the wrongful appropriation to one’s own use of the goods of another.’ (Standard Dictionary.) The very definition of the word presupposes the existence of tangible goods or chattels in a form capable of being changed or transformed, turned over, delivered, or appropriated for the use and benefit of the wrongdoer. In 38 Cyc. 2011 it is said that conversion lies for ‘every species of tangible personal property which is the subject of private ownership.’ In this case conversion is used as a term synonymous with trover. (Black’s Law Dictionary, 1174.) Trover comes from a French word meaning to find, and is defined as ‘a form of action which lies to recover damages against one who has, without right converted to his own use goods or personal chattels, in which the plaintiff has a general or special property. ... It was originally an action of

Contrary to Olschewski v. Hudson, supra, 87 Cal.App. 282 , we see no indication in Payne v. Elliot, supra, 54 Cal. 339 that the Supreme Court concluded that shares of stock were tangible property and therefore were the proper subject of a conversion action. In our view, rather than attempt to conform to the common law rule restricting a conversion action to tangible property, Payne acknowledged that shares of stock were intangible property

Insurance Code section 1215.10, subdivision (c) authorizes the commissioner to order an insurer to cease and desist activity under a transaction or- contract only if the insurer was required by Insurance Code section 1215.5 to notify the commissioner of the proposed transaction or contract but failed to do so, and only if the commissioner would not have approved the transaction or contract had approval been requested. This is the clear implication of the first sentence of section 1215.5, subdivision (c). The second sentence states that the commissioner “may also order the insurer to void any contracts and restore the status quo . . .” after notice and a hearing. We construe this to mean that in addition to issuing a cease-and-desist order in the circumstances described in the first sentence, the commissioner may also order the insurer to void any contracts and restore the status quo in those same circumstances. Thus, section 1215.10, subdivision (c) does not authorize the commissioner to void contracts and restore the status quo unless (1) the insurer was required by section 1215.5 to notify the commissioner of the proposed transaction or contract but failed to do so, and (2) the commissioner would not have approved the transaction or contract had approval been requested. The complaint does not allege that those were the circumstances here and therefore fails to state a cause of action under the statute.

Moreover, Insurance Code section 1215.10, subdivision (c) provides for administrative enforcement of the Insurance Holding Company System Regulatory Act by authorizing the commissioner, after notice and a hearing, to order an insurer to void a transaction or contract and restore the status quo, but does not state that the commissioner may commence a judicial action seeking those remedies. Insurance Code section 1215.9, subdivision (a) authorizes the commissioner to apply to the superior court to enjoin a violation of the act or any rule, regulation, or order by the commissioner under the act, and for other equitable relief, but does not authorize the commissioner to commence a judicial action to void a transaction or contract or restore the status quo absent an actual or threatened violation of an order by the commissioner to that effect. Indemnity cites no statutory language and offers no legislative history indicating a legislative intent to create a cause of action by the commissioner to void a transaction or contract or restore the status quo absent such a prior order by the commissioner. Indemnity does not request leave to amend. The fact that the Insurance Holding Company System Regulatory Act creates a comprehensive scheme for administrative enforcement and a judicial remedy to enforce administrative action strongly suggests that the remedies provided are exclusive. (Farmers Ins. Exchange v. Superior

6. The Sustaining of the Demurrer to Count Twelve Was Error

Indemnity alleges in count twelve that Fremont General and Insurance Group made improper “distributions” of the assets of Comstock and Indemnity within the meaning of Insurance Code section 1215.16 by misappropriating funds in the manners alleged. Indemnity seeks to recover the alleged improper distributions.

Fremont General and Insurance Group argued in support of their demurrer and argue again on appeal that the term “distributions” as used in Insurance Code section 1215.16, subdivision (a)' is limited to “the distribution of shares of stock or monetary bonuses.” Section 1215.16, subdivision (a) states that the receiver under an order for liquidation or rehabilitation of a domestic insurer may recover from any parent corporation, holding company, or other controlling person or affiliate “the amount of distributions other than distributions of shares of the same class of stock paid by the insurer on its capital stock,” or “any payment in the form of a bonus, termination settlement, or extraordinary lump sum salary adjustment made by the insurer or its subsidiary to a director, officer, or employee,” provided that the distribution or payment was made within one year before the petition for liquidation, conservation, or rehabilitation. Section 1215.16, subdivision (b) states that the receiver cannot recover a distribution if the parent or affiliate shows that the distribution was lawful and reasonable when it was paid, “and that the insurer did not know and could not reasonably have known that the distribution might adversely affect the ability of the insurer to fulfill its contractual obligations.” .

The statute refers to. “distributions” rather than “distributions of shares of stock,” and the statutory language does not -suggest that the term “distributions” is limited to only distributions of shares of stock. Moreover, the apparent purpose of the provision to allow the receiver to recover assets conveyed unreasonably to a parent corporation or other controlling person or affiliate suggests that the Legislature did .not intend such, a restrictive meaning of the term “distributions” as the defendants suggest. In support of their demurrer, the defendants cited a legislative committee analysis stating that the bill “Authorizes receivers for insolvent insurers to recover from holding companies and affiliates distributions of shares, and bonuses or other extraordinary salary adjustments . . . .” (Assem. Com. on Ins., Analysis of Sen. Bill No. 1666 (1991-1992 Reg. Sess.) as amended June 16, 1992, p. 4.) They also cited an enrolled bill report stating, “This bill authorizes receivers for

The judgment is reversed with directions to the superior court to (1) vacate its order sustaining the demurrer without leave to amend to each count alleged in the complaint, and (2) enter a new order sustaining the demurrer without leave to amend as to count eleven only and overruling the demurrer as to the other counts. Indemnity is entitled to recover its costs on appeal.

Kitching, J., and Aldrich, J., concurred.