This case was last updated from Los Angeles County Superior Courts on 06/28/2021 at 19:30:12 (UTC).

DONALD A CARSTENS VS BANK OF AMERICA N A ET AL

Case Summary

On 04/03/2018 DONALD A CARSTENS filed a Contract - Other Contract lawsuit against BANK OF AMERICA N A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM and ROBERT B. BROADBELT. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0894

  • Filing Date:

    04/03/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOWARD L. HALM

ROBERT B. BROADBELT

 

Party Details

Plaintiff

CARSTENS DONALD A.

Defendants and Respondents

DOES 1-10

BANK OF AMERICA N.A.

SECURITY PACIFIC NATIONAL BANK

Attorney/Law Firm Details

Defendant and Respondent Attorneys

ESPOSITO MATTHEW J. ESQ.

ESPOSITO MATTHEW JAMES ESQ.

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/26/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice - NOTICE NOTICE OF CONTINUED HEARING ON BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

2/2/2021: Notice - NOTICE NOTICE OF CONTINUED HEARING ON BANK OF AMERICA, N.A.S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

3/26/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

Minute Order - MINUTE ORDER (COURT ORDER)

1/28/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 12/07/2020

12/7/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 12/07/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/03/2020

8/3/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/03/2020

Minute Order - MINUTE ORDER (COURT ORDER)

3/24/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

3/16/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...)

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE; MEMORANDUM OF POINTS & AUTHORITIES; SUPPORTING DECLARATION

12/16/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE; MEMORANDUM OF POINTS & AUTHORITIES; SUPPORTING DECLARATION

Notice Re: Continuance of Hearing and Order

12/4/2019: Notice Re: Continuance of Hearing and Order

Notice - NOTICE OF CONTINUED HEARING DATES

9/19/2019: Notice - NOTICE OF CONTINUED HEARING DATES

Notice Re: Continuance of Hearing and Order

8/23/2019: Notice Re: Continuance of Hearing and Order

Notice of Motion - NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES

7/19/2019: Notice of Motion - NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES

Declaration - DECLARATION OF MARY LEE TREVINO ISO MSJ

7/19/2019: Declaration - DECLARATION OF MARY LEE TREVINO ISO MSJ

Ex Parte Application - Ex Parte Application EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED TRIAL DEADLINES; MEMORANDUM OF POINTS & AUTHORITIES; SUPPORTING DECLARATION

2/21/2019: Ex Parte Application - Ex Parte Application EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED TRIAL DEADLINES; MEMORANDUM OF POINTS & AUTHORITIES; SUPPORTING DECLARATION

Proof of Service by Mail -

10/3/2018: Proof of Service by Mail -

CASE MANAGEMENT STATEMENT -

7/18/2018: CASE MANAGEMENT STATEMENT -

PROOF OF SERVICE SUMMONS -

5/15/2018: PROOF OF SERVICE SUMMONS -

57 More Documents Available

 

Docket Entries

  • 04/21/2021
  • DocketJudgment ((After granting of Summary Judgment)); Filed by Bank Of America, N.A. (Defendant)

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  • 03/30/2021
  • DocketNotice of Ruling; Filed by Bank Of America, N.A. (Defendant)

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  • 03/26/2021
  • Docketat 10:00 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion for Summary Judgment (or, in the Alternative, Summary Adjudication;) - Held - Motion Granted

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  • 03/26/2021
  • DocketOrder - Dismissal; Filed by Clerk

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  • 03/26/2021
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment or, in the Alternative...)); Filed by Clerk

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  • 03/26/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 03/26/2021
  • DocketOrder (re: Motion for Summary Judgment or, in the Alternative, Summary Adjudication); Filed by Clerk

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  • 02/10/2021
  • Docketat 10:00 AM in Department 53, Robert B. Broadbelt, Presiding; Trial - Not Held - Advanced and Continued - by Court

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  • 02/02/2021
  • DocketNotice (NOTICE OF CONTINUED HEARING ON BANK OF AMERICA, N.A.?S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Bank Of America, N.A. (Defendant)

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  • 01/29/2021
  • Docketat 10:00 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Motion for Summary Judgment (or, in the Alternative, Summary Adjudication;) - Not Held - Advanced and Continued - by Court

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101 More Docket Entries
  • 04/10/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/10/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/10/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/10/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/03/2018
  • DocketORDER ON COURT FEE WAIVER

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  • 04/03/2018
  • DocketSUMMONS

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  • 04/03/2018
  • DocketRequest-Waive Court Fees

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  • 04/03/2018
  • DocketCOMPLAINT

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  • 04/03/2018
  • DocketComplaint; Filed by Donald A. Carstens (Plaintiff)

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  • 04/03/2018
  • DocketRequest to Waive Court Fees

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Tentative Rulings

Case Number: BC700894    Hearing Date: March 26, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

donald a. carstens ,

Plaintiff,

vs.

bank of america, n.a. , et al.,

Defendants.

Case No.:

BC700894

Hearing Date:

March 26, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

motion for SummarY judgment or, in the alternative, motion for summary adjudication

MOVING PARTY: Defendant Bank of America, N.A.

RESPONDING PARTY: Plaintiff Donald A. Carstens

Motion for Summary Judgment or, In the Alternative, Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers.

PROCEDURAL ISSUES

The court addresses the following procedural issues.

First, on March 2, 2020, plaintiff filed documents titled (1) “Reply to Defendant’s Evidentiary Objections to Plaintiff’s Evidence,” (2) “Supplemental Declaration of Donald A. Carstens,” and (3) “Plaintiff’s Final Response to Defendant Bank of America, N.A.’s Reply to Plaintiff’s Opposition.” On March 9, 2020, defendant filed a document titled “Objection to Plaintiff’s Improper Sur-Reply iso MSJ.” The court did not grant the parties leave to file any surreply documents and arguments in connection with this motion, and the parties’ surreply papers are therefore unauthorized and untimely. (Code Civ. Proc., § 1005, subd. (b).) The court therefore exercises its discretion to strike and disregard the parties’ surreply papers filed on March 2, 2020, and March 9, 2020.

Second, the court notes that defendant, in its reply brief filed December 23, 2019, contends that plaintiff’s separate statement, filed September 16, 2019, is procedurally improper under Code of Civil Procedure section 437c, subdivision (b)(3), and California Rules of Court, rule 3.1350(b). The court agrees. Plaintiff’s separate statement of undisputed and disputed facts fails to clearly respond to each of the material facts contended by defendant, the moving party, to be undisputed, and fails to indicate if plaintiff agrees or disagrees that those facts are undisputed. (Code Civ. Proc., § 437c, subd. (b)(3).) Plaintiff’s separate statement of undisputed and disputed facts also fails to follow the two-column format specified in California Rules of Court, rule 3.1350(h), fails to unequivocally state whether a fact is “disputed” or “undisputed,” fails to state the nature of the dispute and describe the evidence that supports the position that the fact is controverted, and the citations to the evidence in support of the position that a fact is controverted fails to include references to the exhibit, title, page, and line numbers. (California Rules of Court, rule 3.1350(f).)

However, even though the court agrees with defendant that plaintiff’s separate statement is procedurally defective and improper, the court finds that plaintiff’s separate statement sufficiently indicates if plaintiff agrees or disagrees with certain material facts contended by defendant to be undisputed. Also, even though most of plaintiff’s citations to the evidence in support of his position fails to include page and line numbers (e.g., plaintiff’s citations to several declarations without any reference to page and line numbers), some of plaintiff’s citations to the evidence include concise page and line numbers to plaintiff’s deposition testimony. Therefore, to the extent that plaintiff’s separate statement sufficiently indicates if plaintiff agrees or disagrees with certain material facts contended by defendant to be undisputed, and to the extent plaintiff supports his position that a fact is controverted with citations to evidence which include page and line numbers, the court exercises its discretion to consider plaintiff’s separate statement and to rule on merits of defendant’s motion.

BACKGROUND

Plaintiff Donald A. Carstens (“Plaintiff”) filed this action on April 3, 2018, against defendants Bank of America, N.A. (“Defendant”) and Security Pacific National Bank (“SPNB”)[1]. The Complaint asserts causes of action for (1) breach of implied contract, (2) breach of the implied covenant of good faith and fair dealing, (3) negligence, (4) violation of Business and Professions Code section 17200 et seq., (5) conversion, and (6) declaratory relief.

In the Complaint, Plaintiff alleges the following. In or about 1979, Plaintiff opened three accounts with SPNB in Newport Beach, California: (1) a demand deposit checking account entitled “Donald A. Carstens,” (2) a business demand deposit account entitled “Law Offices of Donald A. Carstens,” and (3) a law offices demand deposit trust account entitled “Law Offices of Donald A. Carstens Trust Account” (the “Accounts”). (Compl., ¶ 6.) The Accounts remained with SPNB when SPNB merged with Defendant in or about 1992. (Compl., ¶ 6.) The Accounts remained open with Defendant in Newport Beach, California, and Plaintiff never closed the Accounts. (Compl., ¶ 6.)

During the 1980s and 1990s, Plaintiff made $2,000 Individual Retirement Account (“IRA”) deposits with SPNB. (Compl., ¶ 8.) After SPNB merged with Defendant in 1992, Plaintiff continued to make IRA deposits with Defendant until 1998. (Compl., ¶ 8.) In or about August 2002, Plaintiff’s law office closed, and Plaintiff had a deposit exceeding $25,000 in his law office trust account. (Compl., ¶ 9.) In February 2018, Plaintiff spoke with Defendant’s representatives, who informed Plaintiff that the Accounts could not be located. (Compl., ¶ 8.) Plaintiff never closed the Accounts, including his law office trust account. (Compl., ¶ 9.) Plaintiff believes that $25,000 was paid from his law office trust account pursuant to a levy by a private individual. (Compl., ¶ 9.) Plaintiff demanded that Defendant return the funds, and Defendant could not help Plaintiff by reimbursing the amounts. (Compl., ¶ 11.)

Defendant now moves for summary judgment on the Complaint or, in the alternative, summary adjudication on each cause of action. Plaintiff opposes the motion.

EVIDENTIARY OBJECTIONS

The court rules on Defendant’s evidentiary objections, filed December 23, 2019, as follows:

Objection 1: Overruled.

Objection 2: Overruled.

Objection 3: Sustained.

Objection 4: Overruled.

Objection 5: Overruled.

Objection 6: Sustained.

Objection 7: Overruled.

Objection 8: Sustained.[2]

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

  1. Statute of Limitations

Defendant first moves for summary judgment on the Complaint on the ground that each cause of action is barred by the applicable statute of limitations.

Among Plaintiff’s causes of action, the statute of limitations for Plaintiff’s first cause of action for breach of implied contract and Plaintiff’s third cause of action for negligence are the shortest at 2 years from accrual.[3] The statute of limitations on a breach of implied contract claim is two years from accrual. (Code Civ. Proc., § 339; see also Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1206 [the two-year limitations period under section 339 applies to oral contracts, implied contracts, and quasi-contractual actions].) A breach of contract claim ordinarily accrues at the time of breach regardless of whether any substantial damage is apparent or ascertainable. (Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1084.) In an action by a depositor against a bank, where the depositor alleges that the bank breached a duty to act with reasonable care in its transactions with the depositor, the relationship is founded on contract and the statute of limitations on the claim for negligence is two years under Code of Civil Procedure section 339. (See Kurtz-Ahlers, LLC v. Bank of America, N.A. (2020) 48 Cal.App.5th 952, 956 [stating that the bank’s duty to act with reasonable care is an implied term in the contract between the bank and its depositor]; see also Smith’s Cash Store v. First Nat. Bank (1906) 149 Cal.32 34 [an action by a depositor against a bank to recover consequential damages arising from defendant’s unwarranted refusal to pay a check drawn by plaintiff was barred in two years].)

After reviewing the evidence submitted by Defendant, the court finds that Defendant has not met its burden of establishing an affirmative defense to each of Plaintiff’s causes of action because Defendant has failed to show that Plaintiff’s claims are barred by the applicable statutes of limitations. (Code Civ. Proc., § 437c, subd. (o)(2).) Under each of Plaintiff’s causes of action, and in support of Defendant’s contentions that a respective cause of action is time-barred, Defendant submits and relies on evidence showing that the first time Plaintiff contacted Defendant regarding his IRA account was in 2012 or 2013. (Defendant’s Undisputed Material Facts (“UMF”) 8; Esposito Decl., Ex. 5, p. 47:3-6.) In Plaintiff’s December 2018 deposition, Plaintiff was asked: “When’s the first time that you approached Bank of America about the money that you believed you had deposited as part of the IRAs?” (Esposito Decl., Ex. 5, Plaintiff’s Deposition, p. 47:3-5.) Plaintiff responded: “Probably about five or six years ago.” (Esposito Decl., Ex. 5, Plaintiff’s Deposition, p. 47:6.) In the Complaint, Plaintiff alleges that Defendant told Plaintiff that it could not locate the Accounts and could not help Plaintiff by reimbursing the amounts deposited by Plaintiff. (Compl., ¶ 11.) The portion of Plaintiff’s deposition testimony on which Defendant relies fails to show that, when Plaintiff “approached Bank of America about the money that [Plaintiff] believed [he] had deposited as part of the IRAs” in 2012 or 2013, Defendant told Plaintiff that it could not locate Plaintiff’s Accounts and could not help Plaintiff, or that Plaintiff’s claims otherwise began to accrue in 2012 or 2013. The portion of Plaintiff’s deposition testimony merely shows that Plaintiff talked to Defendant about his IRA deposits.

  1. First Cause of Action for Breach of Implied Contract

In support of the first cause of action for breach of implied contract, Plaintiff alleges the following. During the 1980s and 1990s, Plaintiff made $2,000 IRA deposits with SPNB and Defendant until 1998. (Compl., ¶ 8.) In or about August 2002, Plaintiff’s law office closed, and Plaintiff had a deposit exceeding $25,000 in his law office trust account. (Compl., ¶ 9.) In February 2018, Plaintiff spoke with Defendant’s representatives, who informed Plaintiff that the Accounts could not be located. (Compl., ¶ 8.) Plaintiff never closed the Accounts, including his law office trust account. (Compl., ¶ 9.) Plaintiff believes that $25,000 was paid from his law office trust account pursuant to a levy by a private individual. (Compl., ¶ 9.)

Plaintiff made deposits to the Accounts, and Defendant impliedly agreed to return the moneys to Plaintiff upon demand. (Compl., ¶ 10.) Plaintiff demanded that Defendant return the funds. (Compl., ¶ 11.) Defendant breached the implied contract by stating they could not locate the Accounts and could not help Plaintiff by reimbursing the amounts. (Compl., ¶ 11.)

Defendant contends that it is entitled to summary adjudication on the first cause of action for breach of implied contract because (1) Plaintiff fails to state facts sufficient to constitute a cause of action for breach of implied contract, and (2) Plaintiff does not have any evidence to establish the existence of a contract.

“An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) “The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse of nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

First, Defendant contends that Plaintiff fails to state facts sufficient to constitute a cause of action for breach of implied contract because Plaintiff has not alleged what the terms of the implied contract are, who the contract was entered into with, when it was entered into, how Plaintiff performed, how Defendant breached, and how the breach of the implied contract caused Plaintiff damages. Because a defendant’s motion for summary judgment “necessarily includes a test of the sufficiency of the complaint,” the court may treat a motion for summary judgment as a motion for judgment on the pleadings. (People ex rel. Dept. of Transportation v. Outdoor Media Group (1993) 13 Cal.App.4th 1067, 1074; see also Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376.) “In so doing, we treat the properly pleaded allegations of the complaint as true and liberally construe those allegations with a view to attaining substantial justice between the parties. [Citations.]” (Prue, supra, 242 Cal.App.4th at p. 1376.)

The court finds that Plaintiff states facts sufficient to constitute a cause of action for breach of implied contract. “The relationship of bank and depositor is founded on contract. [Citation.] The contract entered into when a depositor opens a general checking account at a bank is usually an implied one. [Citation.] Custom and usage in the business of banking may be part of a contract of deposit if such custom or usage is reasonable and does not contravene any principle of law. [Citation.]” (Barclay Kitchen, Inc. v. California Bank (1962) 208 Cal.App.2d 347, 353; see also Basch v. Bank of America Nat. Trust & Savings Ass’n (1943) 22 Cal.2d 316, 321 [“It is settled law that a bank in receiving ordinary deposits becomes the debtor of the depositor, that its implied contract with him is to discharge this indebtedness by honoring such checks as he may draw upon it, and that in so doing it is charged with knowledge of its depositor’s signature.”].) Here, Plaintiff alleges that (1), during the 1980s and 1990s, Plaintiff made $2,000 IRA deposits with SPNB (Compl., ¶ 8), (2) SPNB merged with Defendant in 1992 and Plaintiff continued to make IRA deposits with Defendant until 1998 (Compl., ¶ 8), (3) Defendant impliedly agreed to return the moneys to Plaintiff upon demand (Compl., ¶ 10), and (4) Plaintiff demanded that Defendant return the funds but Defendant breached the implied contract on February 7, 2018 by stating they could not locate the Accounts and could not help Plaintiff by reimbursing the amounts (Compl., ¶ 11).

Second, Defendant contends that Plaintiff does not have any admissible evidence to establish the existence of a contract between Plaintiff and Defendant. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence -- as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855; see also Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [where plaintiffs have had an adequate opportunity for discovery, their factually-devoid responses to discovery requests may show that one or more elements of their claim cannot be established].)

Defendant submits evidence of Plaintiff’s verified discovery responses to establish that Plaintiff has no evidence to support his claims that the Accounts at issue ever existed (UMF 1), and that Plaintiff has no evidence that he ever made deposits to the alleged IRA account (UMF 2). In Plaintiff’s verified responses to Defendant’s Request for Admission, Set One, Plaintiff admitted to the truth of the following matters asserted by Defendant: (1) that Plaintiff does not currently possess any documents that refer or relate to any of the Accounts (Esposito Decl., Exs. 2, 4 [Requests for Admission Nos. 1-3]), and (2) that Plaintiff does not currently possess any documents that evidence that Plaintiff made multiple $2,000 IRA deposits with SPNB or Defendant until 1998 (Esposito Decl., Exs. 2, 4 [Requests for Admission No. 4]). (UMF 1, 2.) Plaintiff was also unable to produce any documents responsive to Defendant’s Requests for Production of Documents, Set One, which requested Plaintiff to produce any and all documents relating to the Accounts. (UMF 1, 2; Esposito Decl., Exs. 1, 3.) Defendant also submits a declaration from Defendant’s Custodian of Records, Mary Lee Trevino (“Trevino”), in which Trevino states that she conducted a detailed internal search of Defendant’s records, and was not able to locate any notes, documents, account statements, or electronical information of any kind indicating that Plaintiff ever held accounts with Defendant or SPNB. (UMF 9, Trevino Decl., ¶¶ 4-10.) Finally, Defendant points out that Plaintiff testified that he never saw or received any documentation that mentioned Plaintiff’s IRA deposits. (UMF 7; Esposito Decl., Ex. 5, p. 53:9-14.)

After considering the evidence submitted, the court finds that Defendant has met its burden of showing that Plaintiff’s first cause of action for breach of implied contract has no merit because Defendant has shown that the element of the existence of a contract cannot be established. (Code Civ. Proc., § 437c, subd. (o)(1).) Thus, the burden shifts to Plaintiff to show that a triable issue of one or more material facts exists as to his first cause of action for breach of implied contract. (Code Civ. Proc., § 437c, subd. (p)(2).)

In support of his opposition to the motion, Plaintiff submits evidence to show that he had accounts with SPNB and then with Defendant, and that he made deposits with SPNB and Defendant. (Plaintiff’s Undisputed Material Facts (“PUMF”) 1, 2.) However, after reviewing Plaintiff’s evidence, the court finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to the element of the existence of a contract for Plaintiff’s first cause of action for breach of implied contract.

Plaintiff relies on several declarations to dispute Defendant’s contention that no contract existed between Plaintiff and Defendant. However, as discussed above, Plaintiff fails to include citations to specific page and line numbers of the declarations as required by California Rules of Court, rule 3.1350(f)(2). But, even if the court considers the declarations, the court finds that Plaintiff fails to present any substantial evidence of the existence of a contract between Plaintiff and Defendant. In his declaration, Plaintiff states that, from 1979 to 2001, Plaintiff’s office maintained the Accounts with SPNB and Defendant (Carstens Decl., ¶ 2), that he personally opened each account and signed signature cards (Carstens Decl., ¶ 2), that statements were sent to him every month for 12 years (Carstens Decl., ¶ 2), that, “during the 1980s and 1990s,” Plaintiff “personally made 6 to 10 [IRA] deposits” with SPNB and Defendant (Carstens Decl., ¶ 3). But Plaintiff fails to submit any substantial evidence to support his vague and conclusory statements, including documents evidencing the Accounts, Plaintiff’s deposits to the Accounts, the signature cards signed by Plaintiff in connection with each account, or any of the statements that were sent to Plaintiff by SPNB or Defendant every month for 12 years. “[W]here the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. [Citations.] For this purpose, responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact. [Citations.]” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

For the reasons set forth above, the court grants Defendant’s motion for summary adjudication on the first cause of action for breach of implied contract. (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

In support of the second cause of action for breach of the implied covenant of good faith and fair dealing, Plaintiff alleges that Defendant breached the implied covenant of good faith and fair dealing of its implied contract with Plaintiff by failing to locate the Accounts and to return the funds to Plaintiff. (Compl., ¶ 14.)

Defendant contends that it is entitled to summary adjudication on the second cause of action for breach of the implied covenant of good faith and fair dealing because no contract existed between Plaintiff and Defendant, and there was therefore no implied covenant of good faith and fair dealing.

“It has long been recognized in California every contract contains an implied covenant of good faith and fair dealing that ‘neither party will do anything which will injure the right of the other to receive the benefits of the agreement.’ [Citation.] This covenant is ‘read into contracts “in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.”’ [Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1120.) “However, the implied covenant will only be recognized to further the contract’s purpose; it will not be read into a contract to prohibit a party from doing that which is expressly permitted by the agreement itself.” (Id. (citing Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374).)

As discussed above, the court finds that Defendant has met its burden of showing that Plaintiff’s first cause of action for breach of implied contract has no merit because Defendant has shown that the element of the existence of a contract cannot be established, and that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to the element of the existence of a contract for Plaintiff’s first cause of action for breach of implied contract.

After considering the evidence submitted and the arguments presented, the court finds that Defendant has met its burden of showing that Plaintiff’s second cause of action for breach of the implied covenant of good faith and fair dealing has no merit because Defendant has established that there is no contract to support an implied covenant of good faith and fair dealing. The court also finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to his second cause of action for breach of the implied covenant of good faith and fair dealing. The court therefore grants Defendant’s motion for summary adjudication on the second cause of action for breach of the implied covenant of good faith and fair dealing. (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Third Cause of Action for Negligence

In support of the third cause of action for negligence, Plaintiff alleges the following. Defendant, by directly and impliedly agreeing to Plaintiff’s deposit of the funds to the Accounts and to return the funds upon Plaintiff’s demand and directions, had a duty to ensure that the terms and conditions of the agreement would be adhered to. (Compl., ¶ 17.) Defendant breached this duty by failing to properly account for the moneys, including the moneys received in the merger with SPNB and failing to return the IRA moneys and the trust account deposit of $25,000 to Plaintiff. (Compl., ¶ 18.)

Defendant contends that it is entitled to summary adjudication on the third cause of action for negligence because Plaintiff cannot establish the threshold element of duty.

“In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “The relationship between a bank and its depositor is not fiduciary in character but, rather, ‘“founded on contract,” [citation] which is ordinarily memorialized by a signature card that the depositor signs upon opening the account. [Citation.]’ [Citation.] . . . . Nevertheless, ‘[i]t is well established that a bank has “a duty to act with reasonable care in its transactions with its depositors . . . .” [Citation.] The duty is an implied term in the contract between the bank and its depositor. [Citation.]’ [Citation.]” (Kurtz-Ahlers, LLC v. Bank of America, N.A. (2020) 48 Cal.App.5th 952, 956.)

As discussed above, the court finds that Defendant has met its burden of showing that Plaintiff’s first cause of action for breach of implied contract has no merit because Defendant has shown that the element of the existence of a contract cannot be established, and that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to the element of the existence of a contract for Plaintiff’s first cause of action for breach of implied contract.

After considering the evidence submitted and the arguments presented, the court finds that Defendant has met its burden of showing that Plaintiff’s third cause of action for negligence has no merit because Defendant has established that there is no contract that would impose a duty of care owed by Defendant to Plaintiff. The court also finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to his third cause of action for negligence. The court therefore grants Defendant’s motion for summary adjudication on the third cause of action for negligence. (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Fourth Cause of Action for Violation of Business and Professions Code §17200 et seq.

In support of the fourth cause of action for violation of Business and Professions Code section 17200 et seq. (the Unfair Competition Law or “UCL”), Plaintiff alleges that Defendant has engaged in unlawful business practices by (1) engaging in unfair practices in violation of the Dodd-Frank Wall Street Reform & Consumer Protection Act of 2010[4] (the “Dodd-Frank Act”), (2) breaching the implied contract between Plaintiff and Defendant, and (3) converting the funds belonging to Plaintiff. (Compl., ¶ 22.)

Defendant contends that it is entitled to summary adjudication on the fourth cause of action for violation of UCL because Plaintiff lacks standing to assert the cause of action. Defendant argues that Plaintiff lacks standing to assert violations of the UCL because his UCL cause of action is based on the same claims and allegations as the other causes of action, and because Plaintiff has not suffered direct injury or lost money or property as a result of unfair competition.

Business and Professions Code section 17204 provides, in relevant part, that “[a]ctions for relief pursuant to this chapter shall be prosecuted . . . by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” To satisfy the standing requirements under the UCL, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (emphasis in original).)

Here, the gravamen of Plaintiff’s UCL claim is that Defendant engaged in unlawful business acts or practices by accepting Plaintiff’s deposits but failing to locate Plaintiff’s Accounts and failing to return the funds to Plaintiff. As discussed above, the court finds that Defendant has shown that the existence of a contract between Plaintiff and Defendant cannot be established, and that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to the element of the existence of a contract for Plaintiff’s first cause of action for breach of implied contract. Because Plaintiff cannot establish that there was any contract which required Defendant to return any money to Plaintiff, Plaintiff cannot establish that he has suffered injury in fact and has lost money or property as a result of Defendant’s failure to return any money to Plaintiff as required by section 17204. Moreover, as the court finds below in the next section, Plaintiff cannot establish that Defendant wrongfully converted Plaintiff’s money. Therefore, Plaintiff also cannot establish that he has suffered injury in fact and has lost money or property as a result of Defendant’s alleged conversion as required by section 17204.

In his opposition to the motion, Plaintiff points to the allegation in the Complaint that Defendant engaged in acts which are prohibited under the Dodd-Frank Act, which he alleges generally prohibits a financial service provider from engaging in unfair, deceptive, or abusive acts or practices. First, Plaintiff has not provided in his Complaint or in his memorandum of points and authorities in opposition to Defendant’s motion any citation to where the Dodd-Frank Act or the provision of it he claims Defendant violated is codified. Second, because Plaintiff cannot establish that there was any contract between Plaintiff and Defendant which required Defendant to return any money to Plaintiff, Plaintiff has failed to show that he has suffered injury in fact and has lost money or property as result of Defendant’s failure to return any money to Plaintiff as required by section 17204.

After considering the evidence submitted and the arguments presented, the court finds that Defendant has met its burden of showing that Plaintiff’s fourth cause of action for violation of the UCL has no merit because Defendant has shown that the element of standing to assert the cause of action (i.e., that Plaintiff has suffered injury in fact and has lost money or property as a result of the unfair competition) as required by Business and Professions Code section 17204 cannot be established. The court finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to his fourth cause of action for violation of the UCL. The court therefore grants Defendant’s motion for summary adjudication on the fourth cause of action for violation of Business and Professions Code section 17200 et seq. (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Fifth Cause of Action for Conversion

In support of the fifth cause of action for conversion, Plaintiff alleges that Defendant wrongfully converted Plaintiff’s IRAs and deposits with SNPB and Defendant. (Compl., ¶ 26.)

Defendant contends that it is entitled to summary adjudication on the fifth cause of action for conversion because Plaintiff does not have any admissible evidence to establish Defendant was unjustly enriched by funds Plaintiff allegedly deposited with Defendant or that Defendant currently possesses and is able to return those funds to Plaintiff.

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages . . . .” (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 551.) Money cannot be the subject of conversion unless a specific, identifiable sum is involved. (See Haigler v. Donnelly (1941) 18 Cal.2d 674, 681 [“While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [citation], it is not necessary that each coin or bill be earmarked.”].)

Defendant submits evidence showing that Plaintiff testified to having no knowledge as to the amount of funds at issue, and that Plaintiff is uncertain what funds he deposited, when he deposited them, or where the funds are now. In Plaintiff’s deposition, Plaintiff was asked how much money he was depositing into his IRA account, and Plaintiff stated: “I know one of my letters says 1500, when I first sent a letter to the bank, because that’s what I thought it was. But then I looked it up and found out that the maximum at that time was 2,000. So I believe it was probably 2,000, but I can’t be for sure [sic].” (UMF 4; Esposito Decl., Ex. 5, p. 21:7-13.) Plaintiff stated that “[he] probably made the maximum deposit,” but that “[he] can’t be for sure [sic] without those records.” (UMF 4; Esposito Decl., Ex. 5, p. 21:16-22.) Plaintiff also testified he made those deposits starting in “[19]83ish,” and then stopped making those deposits in the late 1980s. (UMF 5; Esposito Decl., Ex. 5, pp. 22:16-23:5.) Plaintiff stated that “[he] can’t say that [the deposits] stopped permanently.” (UMF 5; Esposito Decl., Ex. 5, p. 23:10-11.)

After considering the evidence submitted, the court finds that Defendant has met its burden of showing that Plaintiff’s fifth cause of action for conversion has no merit because Defendant has shown that Plaintiff cannot identify a specific sum of money that is the subject of the cause of action for conversion. Although Plaintiff alleges in the Complaint that he has “not received the moneys deposited for IRAs” and that “Defendants have not returned money in Plaintiff’s trust account, believed to be at least $25,000 [sic][,]” Plaintiff’s deposition testimony shows that Plaintiff does not know how much money he deposited into his IRA account and when he made the deposits. Plaintiff cannot identify a specific sum of money that is the subject of the cause of action for conversion. Thus, the burden shifts to Plaintiff to show that a triable issue of one or more material facts exists as to his fifth cause of action for conversion. (Code Civ. Proc., § 437, subd. (p)(2).)

In support of his opposition to the motion, Plaintiff submits evidence to show that he knows “the minimum amount he deposited into his IRA account” (PUMF 4) and how many times he made deposits into his IRA account (PUMF 5). But Plaintiff merely points to the portions of Plaintiff’s deposition testimony that Defendant relies on. (PUMF 4, 5 [“Plaintiff’s deposition p. 20, l. 23 to p. 23, l. 9 (Exhibit 6).”].) As discussed above, Plaintiff’s deposition testimony shows that Plaintiff cannot identify a specific sum of money that is the subject of the cause of action for conversion. The court therefore finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as Plaintiff’s fifth cause of action for conversion.

For the reasons set forth above, the court grants Defendant’s motion for summary adjudication on the first cause of action for breach of implied contract. (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Sixth Cause of Action for Declaratory Relief

In his sixth cause of action for declaratory relief, Plaintiff seeks a judicial determination that “(1) the failure to locate and return to Plaintiff’s [sic] his IRA moneys along with interest and (2) declare [sic] the improper $25,000 payment from Plaintiff’s trust account were both unconscionable and unenforceable, null and void as against the expressed provision of the law, and are unenforceable as being against public policy.” (Compl., ¶ 32.)

A cause of action for declaratory relief requires an “actual controversy.” (Code Civ. Proc., § 1060.) Defendant contends that the undisputed evidence shows that the parties were never in business together and that Plaintiff does not have any accounts with Defendant. Defendant argues that there is therefore no “actual controversy” to support Plaintiff’s cause of action for declaratory relief. The court agrees.

In his opposition to the motion, Plaintiff states that an “actual controversy" exists under Plaintiff’s and Defendant’s contract. But, as discussed above, the court finds that Defendant has met its burden of showing that Plaintiff’s first cause of action for breach of implied contract has no merit because Defendant has shown that the element of the existence of a contract cannot be established, and that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to the element of the existence of a contract for Plaintiff’s first cause of action for breach of implied contract.

After considering the evidence submitted and the arguments presented, the court finds that Defendant has met its burden of showing that Plaintiff’s sixth cause of action for declaratory relief has no merit because Defendant has established that there is no “actual controversy” to support Plaintiff’s cause of action for declaratory relief. The court also finds that Plaintiff has not met his burden of establishing that a triable issue of material fact exists as to his sixth cause of action for declaratory relief. The court therefore grants Defendant’s motion for summary adjudication on the sixth cause of action for declaratory relief. (Code Civ. Proc., § 437c, subd. (f)(1).)

ORDER

For the reasons set forth above, rules as follows.

The court finds that all the papers submitted show that there is no triable issue as to any material fact and that defendant Bank of America, N.A. is entitled to a judgment as a matter of law. The court therefore grants defendant Bank of America, N.A.’s motion for summary judgment on plaintiff Donald A. Carsten’s Complaint. (Code Civ. Proc., § 437c, subd. (c).)

The court orders defendant Bank of America, N.A. to lodge and serve a proposed judgment within 10 days of the date of this order.

The court orders Defendant to give notice of this order.

IT IS SO ORDERED.

DATED: March 26, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] Plaintiff alleges in his Complaint that defendant Security Pacific National Bank merged with defendant Bank of America, N.A. in 1992. (Compl., ¶ 2.)

[2] Although Defendant’s Objection 8 is directed to “Exhibit 11: Correspondence with Bank of America and State Bar of California,” the court notes that Plaintiff has not submitted an “Exhibit 11.” But the court interprets Defendant’s Objection 8 to be an objection to Plaintiff’s Exhibit 3 because that is the exhibit number under which Plaintiff has submitted the correspondence with Bank of America and State Bar of California.

[3] The statute of limitations on Plaintiff’s second cause of action for breach of implied covenant of good faith and fair dealing on an implied contract is also two years from accrual (Code Civ. Proc., § 339), the statute of limitations on Plaintiff’s fourth cause of action for violation of Business and Professions Code section 17200 et seq. is four years (Cal. Bus. & Prof. Code, § 17208), and the statute of limitations on Plaintiff’s fifth cause of action for conversion is three years (Code Civ. Proc., § 338).

[4] Plaintiff does not provide a citation to where this act or the provision of it he claims Defendant violated is codified.

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