I take issue with the conclusion of the majority that summary judgment in favor of defendant County of Los Angeles must be reversed because the complaint states a cause of action for conversion against it the existence of which was not negated by defendants’ papers in support of their motion for summary judgment.
Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599 [124 Cal.Rptr. 297].) The elements of a cause of action for conversion are (1) plaintiff’s ownership or right to possession of the property at the time of the conversion, (2) defendant’s conversion by a wrongful act or disposition of plaintiff’s property rights, and (3) damages. (Chartered Bank of London v. Chrysler Corp. (1981) 115 Cal.App.3d 755, 759-760 [171 Cal.Rptr. 748].) The majority opinion asserts that the second element was satisfied by the allegation that the county destroyed the property (a veritable arsenal of 55 firearms, guns of all descriptions) without giving plaintiffs the prior notice required by former section 1418, Penal Code, but the complaint simply does not so allege. What it does allege is that on or about July 1, 1980, “defendants and each of them unlawfully committed acts which proximately caused the destruction of [the guns].” As the majority notes, the complaint incorporated by reference an exhibit attached thereto consisting of plaintiffs’ claims for damages for destruction of the guns, presented to the county and rejected by it. It is well settled that “[A]n instrument which is made part of the complaint by reference and attached as an exhibit, but which does not constitute the contract upon which the complaint is based, may not supply substantial allegations *257essential to the statement of a cause of action unless the pleading is framed for that purpose and with that end in view.” (Holly Sugar Corp. v. Johnson (1941) 18 Cal.2d 218, 226 [115 P.2d 8].) While this exception applies in the instant case,1 incorporation of the claim forms into the complaint does not supply the allegation that the county converted plaintiffs’ property by failure to comply with the mandate of section 1418 that the court notify plaintiffs of the location of the guns and the method by which plaintiffs could obtain such exhibits. In response to the claim form’s request for a detailed description of how the damage occurred, plaintiffs stated: “Deputy D.A. improperly secured unlawful order, without notice to claimant, for destruction of legal weapons, Superior Court case No. A-075951.” Asked on the form why they claimed the county was responsible, plaintiffs answered: “Deputy D.A. Wells is a county employee____” The complaint, reasonably interpreted and read as a whole (see Jones v. Daly (1981) 122 Cal.App.3d 500, 508 [176 Cal.Rptr. 130]), alleged that Deputy District Attorney Wells secured an order for destruction of the guns without notifying plaintiffs of his intention to do so. It was not alleged, either expressly or by reasonable implication from the facts pleaded, that the clerk of the superior court failed to give plaintiffs the notice required by section 1418. Further, and of greater significance, liability of the county was predicated solely on the conduct of Wells; no conduct by any other county employee or officer was alleged. Accordingly, the record does not support the majority’s statement that “plaintiffs base their claim against the county on the failure by the clerk to give the notice required by Penal Code section 1418.”
Plaintiff Weedman’s declaration in opposition to the motion for summary judgment included the following statement: “There was no lawful justification for the destruction of the weapons in dispute and Mr. Wells’ proposed order for their destruction was, I hope, not a routine and regular duty of an honest prosecutor, particularly when there was no notice to either plaintiff herein.” I interpret this statement to mean that Wells did not give plaintiffs notice of his intention to seek an order for destruction of the guns, not that the court or the clerk of the court failed to give plaintiffs the notice required by section 1418. Even if Weedman’s declaration is subject to a contrary interpretation, no cause of action for conversion against the county would thereby be stated. Declarations filed in opposition to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 520 [176 Cal.Rptr. 68].)
*258The county’s burden on its motion for summary judgment was “only to negate the existence of triable issues of fact in a fashion that entitled it to judgment on the issues raised by the pleadings. [Citation.] It was not required to refute liability on some theoretical possibility not included in the pleadings.” (IT Corp. v. Superior Court (1978) 83 Cal.App.3d 443, 451-452 [147 Cal.Rptr. 828].) Inasmuch as no cause of action for conversion was stated, the county was not required to set forth facts establishing its immunity from liability for that tort in order to be entitled to entry of summary judgment in its favor.
I would affirm the judgment in its entirety.
The petition of respondent City of Los Angeles for review by the Supreme Court was denied July 22, 1987.
The complaint referred to the claims not merely as evidence of compliance with the government tort claims statutes as a condition precedent to the maintenance of this action (Gov. Code, § 945.4), but as a means of setting forth the grounds upon which plaintiffs rested their claim. (See Holly Sugar Corp. v. Johnson, supra, 18 Cal.2d at p. 226.)