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Trespass to chattel, although seldom employed as a tort theory in California, lies where an intentional interference with the possession of personal property has proximately caused injury. 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 the personal property, the owner has a cause of action for trespass to chattel, but not for conversion.
Plaintiff Thrifty-Tel, Inc. provided services to defendants Myron and Susan Bezenek. Defendants' minor children used a home computer to gain entry to plaintiff's confidential code, causing damage. Plaintiff knew of the hacking, but did not contact defendants. Plaintiff filed suit for damages for conversion, fraud, and the value of its services. The trial court awarded damages based on plaintiff's tariff rate schedule. Defendants appealed, challenging the court's determination that causes of action for fraud and conversion lie on these facts. Defendants also complained of plaintiff's failure to mitigate and prove damages. They also contended that the court erred in calculating damages based on the company's own tariff on file with the Public Utilities Commission (PUC).
1) Yes, with respect to fraud. No, with respect to conversion.
The Court of Appeal reversed the portion of the judgment awarding damages for unauthorized calls made in February 1992, remanded the matter for a new trial to determine damages based on defendants' children's tortious conduct before February 1992, and affirmed the judgment in all other respects. The court held that, even if the facts did not support a verdict of conversion as the property taken was intangible, the evidence supported a verdict of trespass to chattels. The court also held that the evidence supported a judgment for fraud, since the sons misrepresented that they were authorized users of the access codes, and plaintiff's computerized network, acting as plaintiff's agent, relied on that misrepresentation. It further held that plaintiff was not entitled to damages for unauthorized calls in February 1992, since plaintiff failed to contact defendants or prevent a recurrence until filing suit, thereby failing to meet its duty to mitigate damages. The court also held that the trial court erred in awarding damages based on the company's own "unauthorized use" tariff, instead of requiring plaintiff to prove actual damages.