of spousal consortium. Branch v. Homefed Bank, 6 Cal. App. 4th 793, 800 (1992); Holliday v. Jones, 215 Cal. App. 3d 102, 264 Cal. Rptr. 448 (1989). Because Plaintiff's claims against Wilson and Gianelli do not fall into any of these categories, Count X against Wilson and Gianelli fails to state a claim upon which relief can be granted.
4. Conversion of Partnership Assets
All moving Defendants move to dismiss Count XI (alleging conversion of partnership assets) on the ground that Plaintiff does not have standing to sue. Defendants' point is well-taken.
Conversion is an act of willful interference with personal property by which an individual entitled to the property is deprived of its use or possession. DeVries v. Brumback, 53 Cal. 2d 643, 647 (1960). To bring an action for conversion, a plaintiff must establish that he or she had actual possession of the property, Igauye v. Howard, 114 Cal. App. 2d 122, 127, 249 P.2d 558 (1952), or the right to immediate possession of the property at the time the alleged conversion occurred. Aero Properties Inc. v. Gottlieb, 206 Cal. App. 2d 711, 716, 24 Cal. Rptr. 277 (1962). Plaintiff neither owned nor had the right to possess the limited partnership funds at the time of the alleged conversion. A limited partner does not have a property interest in specific partnership assets. Cal. Corp. Code § 15671; Crocker Nat'l Bank v. Perroton, 208 Cal. App. 3d 1, 7, 255 Cal. Rptr. 794 (1989). Because Plaintiff neither owned nor had the right to possess partnership assets, he cannot demand such assets in a conversion action.
5. Professional Negligence
Defendants Dolinajec, Weiss, Weissman and Weiss & Weissman move to dismiss Count XIII for failure to state a claim on which relief can be granted. Count XIII for professional negligence alleges that, in inducing Plaintiff to sign a limited partnership agreement which limited Plaintiff's rights, Defendants Dolinajec, Jeffrey Weiss, Mark Weissman and Weiss & Weissman negligently represented clients with conflicting interests without obtaining their informed written consent.
This allegation amounts to a claim that Defendants fraudulently concealed their true loyalties and interests in inducing Plaintiff to sign the limited partnership agreement. To support liability for fraudulent concealment, an affirmative duty of disclosure is required. Goodman v. Kennedy, 18 Cal. 3d 335, 341-45, 134 Cal. Rptr. 375, 556 P.2d 737 . Plaintiff has failed to allege such a duty. Attorneys for limited partnerships do not owe fiduciary duties to limited partners. Kapelus v. State Bar of California, 44 Cal. 3d 179, 191-92, 242 Cal. Rptr. 196, 745 P.2d 917 (1987). Attorneys, similarly, have no duty to volunteer advice for the benefit of a non-client with whom the client deals in an arm's length sales transaction. Goodman, 18 Cal. 3d at 344. Because Plaintiff has failed to allege the existence of a duty, Plaintiff's claim for professional negligence fails to state a claim upon which relief can be granted.
C. Motion for Leave to Amend
Plaintiff moves for leave to amend his complaint. Under Fed. R. Civ. P. 15(a), leave to amend a complaint "shall be freely given when justice so requires." This provision is interpreted liberally: "In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment, futility of amendment, etc - the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 372 U.S. 178, 182 (1962). In addition to curing any alleged defects, Plaintiff proposes to amend his complaint to add two causes of action: Intentional Interference with Economic Relationship and Negligent Interference with Economic Relationship. Because the case has yet to begin discovery or trial, permitting amendment will not cause undue prejudice or delay. Similarly, because the court cannot determine that, as a matter of law, amendment would be futile, leave to amend is proper.
Accordingly, IT IS HEREBY ORDERED that
1. Counts I, II, III, IV, V, VI, VII, VIII and XII of Plaintiff's Second Amended Complaint are dismissed WITHOUT PREJUDICE.
2. Counts IX, X, and XI of Plaintiff's Second Amended Complaint are dismissed as to Defendants Dolinajec, Jeffrey Weiss, Mark Weissman, Weiss & Weissman, Wilson and Gianelli WITH PREJUDICE WITHOUT LEAVE TO AMEND.
3. Count XIII is dismissed as to Defendants Dolinajec, Jeffrey Weiss, Mark Weissman, and Weiss & Weissman WITH PREJUDICE WITHOUT LEAVE TO AMEND.
4. Plaintiff's Motion for Leave to File a Third Amended Complaint is GRANTED, provided that the causes of action asserted in the Counts above dismissed with prejudice are not reasserted directly or indirectly. Plaintiff is given 30 days to amend.
Dated: 12/15, 1992.
Stanley A. Weigel