Judge: Armen Tamzarian, Case: 23STCV15099, Date: 2023-11-29 Tentative Ruling

Case Number: 23STCV15099    Hearing Date: March 7, 2024    Dept: 52

Defendant TD Ameritrade, Inc.’s (1) Amended Demurrer to Second Amended Complaint and (2) Motion for Sanctions Pursuant to Code of Civil Procedure Section 128.7

Requests for Judicial Notice

Defendant TD Ameritrade, Inc. (TDA) requests judicial notice of 10 exhibits.  All 10 exhibits are court records in the divorce proceeding between plaintiff (under the name Geraldine Johnston Manlin) and Roger Manlin.  These documents’ existence and legal effects are subject to judicial notice under Evidence Code § 452(d).  (See Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.) 

Defendant’s requests for judicial notice are granted. 

On demurrer, courts need not accept the truth of allegations that are inconsistent with documents subject to judicial notice.  (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474.)

Amended Demurrer to Second Amended Complaint

Defendant TDA demurs to all three causes of action alleged in the second amended complaint by plaintiff Geraldine Marie Johnston. 

Summary of Allegations

            Plaintiff brings three causes of action against defendant: (1) breach of contract, (2) negligence, and (3) tort of another.  Plaintiff’s claims all arise from allegations that plaintiff’s late husband, Roger Manlin, made three unauthorized transfers of money from her TDA account. 

In 2010, Manlin opened a TDA account in plaintiff’s name “by forging her signature.”  (SAC, ¶ 23.)  In November 2016, plaintiff sold an Andy Warhol painting for $750,000.  (¶ 25.)  Manlin “deposited the proceeds of the sale into Geri’s TDA account (x6580) on December 15, 2016.”  (Ibid.)      

Plaintiff alleges that, on December 19, 2016, Manlin made an unauthorized transfer of $160,800 from her TDA account to his own TDA account.  (SAC, ¶ 28.)  On December 23, 2016, plaintiff noticed money missing from her account balance.  (¶ 27.)  She “confronted Roger and learned” about the unauthorized transfer of $160,800 on December 23, 2016.  (¶ 28.)  Within days, plaintiff contacted TDA about the transfer.  (¶ 31.)  TDA investigated (ibid.) and returned the $160,800 to plaintiff (¶¶ 39, 44).   

Plaintiff further alleges Roger withdrew $100,000 from her account on December 22 and another $217,500 on December 23.  (SAC, ¶¶ 30, 37-39.)  Plaintiff does not allege she contacted TDA about these two transfers.  TDA did not reimburse her for them.  (¶ 39.)  Plaintiff does not specifically allege when she learned of them.  She alleges a document evidencing them “was sent to Plaintiff’s counsels in a massive document dump about 2 months ago.”  (¶ 38.)   

I. Statute of Limitations

The statute of limitations bars plaintiff’s first cause of action for breach of contract and second cause of action for negligence.  A demurrer should be sustained where “the complaint shows on its face that the statute [of limitations] bars the action.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)  “[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.”  (Id. at p. 1316.)  The court must determine which statute of limitations applies and when the claim accrued.  (Ibid.)

Plaintiff filed this action on June 28, 2023.  The second amended complaint alleges an “implied-in-fact contract between Geri and TDA.”  (SAC, ¶ 23.)  Breach of a contract “not founded upon an instrument of writing” has a statute of limitations of two years.  (CCP § 339, subd. 1.)  Assuming the contract were written, the statute of limitations would be four years.  (CCP § 337(a).)  The first cause of action for breach of contract is therefore untimely if it accrued before June 28, 2021, or, for a written contract, June 28, 2019.  Negligent injury to personal property has a three-year statute of limitations.  (CCP § 338(c).)  The second cause of action for negligence is untimely if it accrued before June 28, 2020. 

Plaintiff’s first two causes of action arise from allegations that, in December 2016, TD Ameritrade breached a contract or was negligent in permitting plaintiff’s late husband to take money from her account without authorization.  Absent an exception to the statute of limitations, these causes of action are untimely. 

A. Equitable Tolling

Plaintiff relies on the doctrine of equitable tolling.  “The equitable tolling doctrine operates to ‘ “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” ’ ”  (Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 794 (Brome).)  It “ reflects ‘ “a general policy which favors relieving [a] plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one.” ’ ”  (Ibid.)  “The doctrine encourages the resolution of meritorious claims while avoiding unnecessary litigation and alleviating the burden of pursuing multiple remedies at once.”  (Id. at p. 795.)  “[E]quitable tolling is applied only in rare circumstances, when necessary to promote fairness and justice.”  (State Compensation Insurance Fund v. Department of Insurance (2023) 96 Cal.App.5th 227, 241.)

Equitable tolling requires “three elements: timely notice to the defendant, lack of prejudice to the defendant, and reasonable and good faith conduct by the plaintiff.”  (Saint Francis Memorial Hospital v. State Department of Public Health (2020) 9 Cal.5th 710, 726.)

Equitable tolling does not apply to the first transfer of $160,800.  The doctrine requires that plaintiff “pursued, but ultimately failed to obtain, the initial remedy, causing them to seek relief in court as an alternative path.”  (State Compensation Insurance Fund v. Department of Insurance (2023) 96 Cal.App.5th 227, 240.)  It does not apply where the plaintiff “actually obtained the remedy it sought” via the prior effort.  (Id. at p. 241.) 

Plaintiff’s second amended complaint alleges, “TD Ameritrade has reimbursed Geri the $160,800 taken Dec. 19, 2016.”  (SAC, ¶ 39.)  Assuming she otherwise meets the elements of equitable estoppel, finding her claim to the $160,800 untimely results in no “injustice to the plaintiff” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 658) because she already got her money back.

For the second and third unauthorized transfers, plaintiff did not provide TDA timely notice of her claims.  “To satisfy timely notice, ‘filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.’ ”  (Brome, supra, 44 Cal.App.5th at p. 795.)  This element requires not just timely notice of the underlying facts.  It requires that “the alternative proceeding apprise the defendant of the nature of the claim and the plaintiff's intent to litigate.”  (Apple Valley Unified School Dist. v. Vavrinek, Trine, Day & Co. (2002) 98 Cal.App.4th 934, 954 (AVUSD).)  “Equitable tolling typically applies where the plaintiff pursues an alternative remedy against the defendant in the second suit.”  (Ibid.)  Generally, “where the first proceeding does not seek relief against the defendant in the second proceeding, equitable tolling does not apply.”  (Ibid.)  The plaintiff must “put defendants on notice that [she] intended to assert liability against them.”  (Id. at p. 956.) 

Plaintiff did not provide timely notice to defendant of her claims against them.  For the first unauthorized transfer of $160,800, she gave defendant timely notice of the underlying facts.  But the second amended complaint’s allegations and the documents subject to judicial notice show that she did not give TDA notice she intended to pursue any claims against it.  Plaintiff alleges TDA “reimbursed GERI the $160,800.”  (SAC, ¶ 39.)  It did so in April 2017.  (RJN, Ex. 1, G. Manlin Decl., ¶ 29 & Bertet Decl., ¶ 17.)  Plaintiff does not allege she did anything giving TDA notice that, after it returned the money to her account, she still planned to pursue a claim for damages against it.

As for the second and third unauthorized transfers, plaintiff also has not alleged she gave defendant notice of the underlying facts at all.  To the contrary, the second amended complaint alleges she received a document reflecting these transfers “in a massive document dump about 2 months ago.”  (SAC, ¶ 38.)  Moreover, plaintiff’s opposition argues, “The latter two thefts were only discovered by Geri in 2023.”  The statutes of limitation expired in 2019 and 2020.  She necessarily could not have given TDA timely notice she had a claim against TDA arising from the transfers she did not know about.  Rather than equitable tolling, this argument pertains to the delayed discovery rule.  Plaintiff does not assert tolling based on delayed discovery.  Nevertheless, the court will address that issue below.

Assuming plaintiff met the other elements, she does not allege sufficient facts for the third element of reasonable and good faith conduct.  This element “encompass[es] two distinct requirements: A plaintiff’s conduct must be objectively reasonable and subjectively in good faith.”  (Saint Francis Memorial Hospital v. State Department of Public Health (2020) 9 Cal.5th 710, 729.)  “When it comes to reasonableness, the ‘ultimate test’ is ‘objective.’  [Citation.]  An analysis of reasonableness focuses not on a party’s intentions or the motives behind a party’s actions, but instead on whether that party’s actions were fair, proper, and sensible in light of the circumstances.”  (Saint Francis Memorial Hospital v. State Department of Public Health (2020) 9 Cal.5th 710, 729.) 

Plaintiff’s actions were not fair, proper, and sensible in the circumstances.  “The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context.”  (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416.)  Plaintiff alleges the statutes of limitation “were suspended, or ‘tolled’ during the time her divorce was being litigated.”  (SAC, ¶ 17.)  She further alleges, “[D]uring the pendency of the divorce proceedings GERI was unable to serve TDA with a complaint as she would necessarily have to serve ROGER as well, thus likely running afoul of the divorce proceedings, particularly California Rules of Court, Rule 5.24.”  (¶ 22.)  But her divorce action did not constitute seeking an alternate remedy against TDA.  Apart from her informal effort to recover the first transfer of $160,800, which was successful, plaintiff has not alleged she took action to seek any remedy from TDA until March 13, 2022.  (¶ 14.)  It was not reasonable to wait to seek a remedy against TDA until over five years after the unauthorized transfers occurred. 

Plaintiff argues she could not bring an action against defendant during her pending divorce case.  She relies on the general rule “disfavoring of civil actions which are really nothing more than reruns of a family law case.”  (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25 (Neal).)  She cites five cases, all of which are distinguishable.    

  First, in Burkle v. Burkle (2006) 144 Cal.App.4th 387, 391 the wife sued “her husband and two accounting firms.”  The Court of Appeal held the wife could not bring “a civil action against [husband] over matters within the purview of the family law court.”  (Id. at p. 398.)  As for the accounting firms, the wife sought only declaratory relief that amounted to a renewed attempt to get information and documents she subpoenaed in the family law action.  (Id. at pp. 398-399.)  The court stated, “[W]hile the accounting firms are not parties to the dissolution action, the family law court had full power to require them to respond to Ms. Burkle’s subpoenas.”  (Id. at p. 398.)  “Accordingly, because the family law court had the power to require production of the records, which Ms. Burkle demanded in connection with the marital dissolution, she was required to seek relief in the marital dissolution proceeding, not in a new action for declaratory relief.”  (Id. at pp. 398-399.)  Here, plaintiff is not suing defendant for the equivalent of discovery.  She is suing for damages. 

Second, in Neal the court applied that principle to the husband’s claims against the wife.  (Neal, supra, 90 Cal.App.4th at pp. 23-24.)  The husband also sued a third party, a collection agency that purchased the right to part of the family law judgment (ibid.), but the court noted the husband could sue the agency in a civil action.  The husband argued “the collection agency cannot be brought into the family court.”  (Id. at p. 26.)  The court agreed, but stated, “[T]hat doesn’t mean that the demurrers to the causes of action against Judith only should not have been sustained.  …  If Herman wants to press his claim for a constructive trust, he can, but the most likely result will be that the trial court will stay the constructive trust claim until the family law disputes have been resolved.”  (Ibid., italics added.)  The same reasoning applies to this case.  Regardless of whether a civil action against TDA would have been stayed pending resolution of the divorce proceeding, nothing prohibited plaintiff from suing TDA.    

Third, in d'Elia v. d'Elia (1997) 58 Cal.App.4th 415, 419-421, the wife sued the husband, and no other defendants, for securities fraud over stock owned by community estate.  Here, plaintiff is only suing TDA, not her late husband.

Fourth, the appeal in Askew v. Askew (1994) 22 Cal.App.4th 942 again concerned only the husband’s causes of action against his wife.  (Id. at p. 947, fn. 7 [referring to separate unpublished opinion regarding claim against wife’s affair partner].)

Fifth, in Bidna v. Rosen (1993) 19 Cal.App.4th 27 the husband sued the wife and her mother.  The court did not apply the general principle disfavoring civil actions that rehash family law proceedings.  It instead established a rule specifically prohibiting malicious prosecution: “[N]o malicious prosecution action may arise out of unsuccessful family law motions or OSC’s.”  (Id. at p. 37.)  As for the husband’s other claims, the court affirmed judgment for the defendants on separate, substantive grounds.  (Id. at pp. 37-40.)     

Moreover, plaintiff’s argument that she “could not bring TDA into the divorce action” (Opp., p. 7) does not support equitable tolling.  It does the opposite.  “The doctrine of equitable tolling … only applies where the plaintiff has alternate remedies and has acted in good faith.”  (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.)  It does not apply when the plaintiff “did not have any alternate remedies.”  (Ibid.)  That plaintiff could not have pursued her claims against TDA in the divorce proceeding means that proceeding was not an alternate remedy that could permit equitable tolling.  Like the plaintiff in Thomas v. Gilliland, her only remedy against TDA was a civil action.  She did not pursue that exclusive remedy until years after the longest statute of limitations expired. 

B. Discovery Rule

Plaintiff does not allege sufficient facts to rely on the rule of delayed discovery.  To rely on the discovery rule, the plaintiff “must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) 

Plaintiff cannot meet the second element.  Under the discovery rule, a claim accrues “when the plaintiff suspects or should suspect that her injury was caused by wrongdoing” or “has notice or information of circumstances to put a reasonable person on inquiry.”  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.)  “[O]nce a plaintiff becomes aware of facts which would make a reasonably prudent person suspicious, the duty to investigate arises and the plaintiff may then be charged with knowledge of the facts which would have been discovered by such an investigation.”  (Hobbs v. Bateman Eichler, Hill Richards, Inc. (1985) 164 Cal.App.3d 174, 202 (Hobbs).)

As for the first transfer of $160,800, the second amended complaint itself alleges plaintiff learned about it on December 23, 2016.  (SAC, ¶ 28.)  As for the second and third unauthorized transfers, plaintiff was on inquiry notice no later than February 4, 2019.  On that day, plaintiff (using her former name, Geraldine Johnston Manlin) executed a declaration submitted in her divorce proceeding.  (RJN, Ex. 1.)  In it, she states, “I was able to obtain records from TD Ameritrade for a general account inquiry history, a true and correct copy of which is attached hereto at Exhibit ‘2.’  That account history shows that after the painting was sold, on December 15, 2016, Roger deposited the $750‚000 in sale proceeds into TD Ameritrade account —6850.”  (Id., G. Manlin Decl., ¶ 8.) 

The account history shows the latter two transfers.  The second transaction listed on the account history states, “wire fee wire funds wire sent” on December 22, 2016, for $100,000.  (RJN, Ex. 1, G. Manlin Decl., Ex. 2, p. 66.)  The seventh transaction on the same page same states, “internal transfer from” plaintiff’s account to Roger Manlin’s TDA account on December 19 for $160,800.  (Ibid.)  The 12th transaction states, “wire received: Geraldine Johnston Manlin” on December 15 for $750,000.  (Ibid.)  A later page of the account history includes a transaction described as “wire fee wire funds sent” for $217,500 on December 23.  (Id., p. 68.) 

Plaintiff was therefore on inquiry notice of her claims against TDA arising from those transfers.  She was aware of two facts that would make any reasonably prudent person suspicious.  First, she knew Roger Manlin was the only person who had access to her TDA account in December 2016.  (SAC, ¶¶ 23-29.)  Second, she knew Roger stole $160,800 from that account via a wire transfer on December 19, 2016.  She therefore had a duty to investigate.  (Hobbs, supra, 164 Cal.App.3d at p. 202.)  Any reasonable investigation would have included reading the account history and noticing the two other large wire transfers made within days of the first one.  The account histories describing the wire transfers would represent glaring red flags to a reasonable person.  A reasonably prudent person would infer those two transfers of great sums of money, which plaintiff did not personally cause to occur, likely arose from the same wrongdoing as the first.    

            Based on plaintiff’s allegations and the documents and facts subject to judicial notice, plaintiff cannot rely on the discovery rule.  “When a plaintiff reasonably should have discovered facts for purposes of the accrual of a cause of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if [the record] can support only one reasonable conclusion.”  (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193.)  This record supports only one reasonable conclusion: that, with reasonable diligence, plaintiff would have discovered the second and third unauthorized transfers no later than February 2019.  The delayed discovery rule therefore does not apply to her first two causes of action.

3rd Cause of Action for Tort of Another

Plaintiff does not allege sufficient facts for this cause of action.  “ ‘[A] person who is required through the tort of another to act in protection of his interest by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary attorney’s fees incurred.’ ”  (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 910.)  “[N]ecessary attorney fees incurred in third party litigation which is proximately and foreseeably caused by a tortfeasor are recoverable as damages in an action against the tortfeasor.”  (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1312 (Sooy).) 

Plaintiff fails to allege facts showing the attorney fees she incurred were proximately and foreseeably caused by TDA’s conduct.  The doctrine of proximate cause “impose[s] limitations on liability other than simple causality” related to “to the degree of connection between the conduct and the injury” and “with public policy.”  (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 316.)  “A superseding cause relieves a defendant from tort liability for a plaintiff’s injuries, if both the intervening act and the results of the act are not foreseeable.”  (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1274.) 

Plaintiff alleges, “These thefts by ROGER resulted in their divorce.  ROGER immediately commenced a 5-year, 8-month unrelenting scorched earth strategy to, in his words ‘impoverish GERI.’ ”  (SAC, ¶ 40.)  TDA could not have foreseen that its conduct would result in plaintiff’s bitter spouse to engaging in a spiteful “scorched earth strategy” in a divorce proceeding.  Roger’s conduct was a superseding cause.  The degree of connection between TDA’s conduct and Roger’s litigation tactics is too attenuated to make TDA liable for plaintiff’s attorney fees in the divorce.

Plaintiff also alleges her legal fees arose after Roger reneged on a settlement in 2018.  “Within days of executing the Deal Memorandum, ROGER claimed GERl bad defrauded him of $160,800 from the TDA account x0275.  Consequently, he refused to sign a Judgement reflecting the settlement agreement terms and sought to set the agreement aside, leaving GERI no choice but to seek a Request for Order to enforce the agreement and enter judgement pursuant to Code of Civil Procedure§ 664.6.”  (SAC, ¶ 34.)  Roger’s conduct in reneging on the settlement and claiming this transfer was fraudulent was another superseding cause.  TDA could not have foreseen Roger would do that.  This portion of the divorce proceeding also did not arise from TDA’s alleged tort or breach of contract.  It arose from TDA “remov[ing] the $160,8000.00 dollars from ROGER’s account” (SAC, ¶ 44)—which it did to rectify the unauthorized transfer.  Restoring plaintiff’s money was not tortious.   

Plaintiff’s purported third cause of action also fails for an independent reason.  “Tort of another” is not a cause of action.  It is a rule about compensatory damages.  “[T]he third party tort ‘exception’ is in fact an element of tort damages, nearly all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees.”  (Sooy, supra, 220 Cal.App.3d at p. 1310.)  Under this theory, a plaintiff may recover “attorney’s fees that are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.”  (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817; accord Copenbarger v. Morris Cerullo World Evangelism, Inc. (2018) 29 Cal.App.5th 1, 10 [“the principle that attorney fees qua damages are recoverable as damages, and not as costs of suit, applies equally to breach of contract”].)

Just as “medical fees” is not a cause of action, neither is “tort of another.”  The second amended complaint alleges, “TDA’s brach [sic] of its own policies and procedures Gave ROGER the means to appropriate the money from GERI’s account and which ROGER the platform he needed to be able to prolong the litigation, i.e., a plausible story.”  (SAC, ¶ 59.)  The same factual allegations constitute the wrong plaintiff alleges TDA committed in her first (¶ 46) and second (¶ 51) causes of action.  Plaintiff does not allege sufficient facts for those two causes of action.  The third purported cause of action for tort of another therefore fails along with them.

Plaintiff contends that, unlike the first two causes of action, this claim was not ripe until 2022.  She relies on the “theory of continuous accrual,” which “posits that a cause of action challenging a recurring wrong may accrue not once but each time a new wrong is committed.”  (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189.)  She does not allege TDA committed any wrongs after 2017.  She argues only that TDA “continues to fail to refund to Geri the money it gave to Roger.”  (Opp.,. p. 6.)  It “gave” that money to Roger in December 2016.  Those were discrete events.  If failing to remedy an old wrong constituted a new wrong under the continuous accrual theory, torts or breaches of contract would never accrue.  The claims would either be settled (and thus not litigated) or would remain indefinitely tolled until the plaintiff not only brings her action, but also wins and recovers her damages.

Defendant’s Motion for Sanctions Under Code of Civil Procedure Section 128.7

Defendant TD Ameritrade, Inc. moves for $139,087.11 in sanctions against plaintiff under Code of Civil Procedure section 128.7.  Section 128.7(b) provides, “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading,” an attorney certifies that to the best of his or her “knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” the pleading is not brought for an improper purpose, does not make frivolous claims, and has evidentiary support.  Under section 128.7(c), “a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.”  (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.)

Sanctions are not warranted.  “Code of Civil Procedure section 128.7 should be utilized only in ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’ ”  (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121.)  At worst, this case may be an ordinary unsuccessful civil action.  It is not indisputably without merit. 

Defendant argues this action was filed for “an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” (CCP § 128.7(b)(1)) solely on the basis that it is frivolous.  Even if unsuccessful, it is not frivolous.

Finally, even if this action were frivolous or plaintiff filed it for an improper purpose, the court would exercise its discretion not to impose sanctions.  “Section 128.7, subdivision (c) does not require the imposition of monetary sanctions upon the finding of a violation of section 128.7, subdivision (b); rather, it gives the trial court discretion to impose sanctions based on such a finding.”  (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422.)

Disposition

            Defendant TD Ameritrade, Inc.’s demurrer to plaintiff Geraldine Marie Johnston’s second amended complaint is sustained with 20 days’ leave to amend. 

            Defendant TD Ameritrade, Inc.’s motion for sanctions is denied.