Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Civil Theft

Civil theft under Penal Code 496(c) is not established merely by nonpayment of a loan

The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659) 2023 WL 178372 (nonpub. opn.) observed when reversing a default judgment based on section 496(c), a plaintiff has to prove “criminal intent,” and that means more than mere nonpayment.

In Wang, the borrower-defendants took a number of loans from the lender-plaintiffs. The borrowers never made a single payment. The lenders sued, but the borrowers never answered. So the lenders got a default judgment, including attorney fees under Penal Code section 496(c).

The Court of Appeal reversed the section 496(c) claim. If all you have is an unpaid debt, that is not enough: "a mere unfulfilled promise or misrepresentation of fact is insufficient to establish an intent to steal.” (Siry, supra, 13 Cal.5th at p. 368 (conc. opn. of Groban, J.).)

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Fee Awards Under Civil Theft Statute Under Review

Bookmark Penal Code section 496 and Bell v. Feibush (D4d3 2013) 212 Cal.App.4th 1041, if you have not already, which together hold that failing to pay back a loan could subject the […]

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