Judge: David Sotelo, Case: 21STCV38822, Date: 2022-08-11 Tentative Ruling
Case Number: 21STCV38822 Hearing Date: August 11, 2022 Dept: 40
MOVING PARTY: Defendant Golden State
Bank.
Plaintiff Henrik Agasyan
sues his bank (Defendant Golden State Bank or “GSB”), (and previously, several of
GSB’s employees along his estranged wife Silva Agasyan or “Silva”) on the grounds
that GSB acted in concert to transfer money out of the married couple’s joint trust
account and into an account wholly and separately owned by Silva Agasyan under circumstances
amounting to concealment, negligence, and breach of contract, among other putative
claims.
Defendant GSB demurs to the Six operative causes of action alleged
in Agasyan’s Second Amended Complaint on the grounds that, inter alia, (1) the First,
Second, and Sixth Causes of Action were added without leave of the Court after a
successful GSB demur against the First Amended Complaint, which did not contain
similar claims, and (2) the Third to Fifth Causes of Action are insufficiently pled
within the meaning of Code of Civil Procedure section 430.10, subdivision (e).
Defendant GSB also brings a Motion to Strike against the First,
Second, and Sixth Causes of Action on the same grounds as the Demurrer.
The Court (1) GRANTS the Motion to Strike as to the SAC’s First,
Second, and Sixth Causes of Action and (2) SUSTAINS, With Leave to Amend, the Demurrer
to the SAC’s Third to Fifth Causes of Action, for the stated reasons.
On or about October 13, 2016, Henrik Agasyan (hereafter, “Henrik”)
and Silva Agasyan (hereafter, “Silva”) opened an AHAS Trust Account (“Joint Account”)
with Defendant Golden State Bank (“GSB”), for whom Silva works as an employee. The
Joint Account was funded jointly by Henrik and Silva.
On November 19, 2019, Silva opened a new personal bank account
at GSB without the knowledge of Henrik (hereafter, the “Silva Account”). That same
day, Silva transferred $250,000.00 from the Joint Account to her separately owned
Silva Account. Around the same time, Silva also asked GSB to change the mailing
address for the Joint Account from the family mailing address to “hold for employee
pick-up only.”
On or about December 18, 2019, Henrik came in person to GSB,
allegedly seeking to determine why he was no longer receiving the Joint Account
statements, when he inquired as to the balance of the Joint Account, which was $141,743.22
(“Disputed Funds”). Henrik then requested the assistance of Maria Dawod (a GSB employee)
in withdrawing the Disputed Funds from the Joint Account. After instructing Henrik
on the proper presentment of cashier check forms to effectuate the process, GSB
employee Dawod excused herself and returned three to five minutes later, at which
time she suggested that Henrik visit the Wells Fargo bank located across the street
to obtain routing instructions instead.
The Defendants have previously argued that Dawod never gave Henrik
Agasyan this instruction.
Still, the operative Second Amended Complaint alleges that Henrik,
relying on Dawod’s instructions, left GSB to go to a Wells Fargo bank across the
street and that, while Plaintiff was away, Silva Agasyan was alerted by GSB that
Henrik sought to remove the Disputed Funds from the Joint Account. Before Henrik
returned to GSB, Silva transferred the Dispute Funds to her separately owned Silva
Account.
Upon his return to GSB, Henrik was informed by Monique Cash the
Disputed Funds had been withdrawn from the Joint Account by Silva during his time
away.
Based on these and other facts, Henrik brought the instant action.
The December 13, 2021 First Amended Complaint (“FAC”) alleged eight causes of action:
(1) Negligence against GSB and Does 1-100;
(2) Breach of Fiduciary Duty against Silva Agasyan and Does 1-100;
(3) Fraudulent Concealment against all Defendants and Does 1-100;
(4) Breach of Written Contract against GSB and Does 1-100;
(5) Intentional Interference with Contractual Relations against
all Defendants and Does 1-100;
(6) Violations of the Business and Professions Code against all
Defendants and Does 1-100;
(7) Conversion against all Defendants and Does 1-100; and
(8) Violation of Financial Code Section 1332 against all Individual
Defendants and Does 1-100.
On January 31, 2022, Defendants GSB, Cash, and Kradjian demurred
to the eight claims in the First Amended Complaint on the grounds that the causes
of action stated therein were insufficiently pled within the meaning of Code of
Civil Procedure section 430.10, subdivision (e).
On February 1, 2022, Henrik dismissed with prejudice the Fifth,
Sixth, Eighth Causes of Action from the FAC.
On April 14, 2022, at which time the Court made several rulings
on various Motions:
(1) As to GSB, Motion for Sanctions Denied, but terminating sanctions
GRANTED in favor of Defendants Kradjian, Dawod, and Cash;
(2) As to GSB, Sustained, With Leave to Amend, the demur to the
FAC’s First, Third, and Fourth Causes of Action;
(3) As to GSB, Sustained, Without Leave to Amend, the FAC’s Seventh
Cause of Action; and
(4) As to Defendants Kradjian, Dawod, and Cash, Sustained, Without
Leave to Amend, the Third and Seventh Causes of Action.
As a result, based on the April 14, 2022 Order—and because Henrik
had dismissed the FAC’s Fifth, Sixth, and Eighth Causes of Action on February 1,
2022—as of April 15, 2022, the only remaining Causes of Action at issue in this
case were:
(1)
Negligence against GSB and Does 1-100, Sustained With Leave
to Amend on April 14, 2022, as to GSB only, subject to amendment;
(2)
Breach of Fiduciary Duty against Silva and Does 1-100, unchallenged
in the January 31, 2022 Demurrer;
(3)
Fraudulent Concealment against all Defendants and Does 1-100,
Sustained With Leave to Amend on April 14, 2022, as to GSB only, subject to amendment;
and
(4)
Breach of Written Contract against GSB and Does 1-100, Sustained
With Leave to
Amend on April 14,
2022, as to GSB only, subject to amendment.
Also on April 14, 2022, Department 40 entered an Order of Dismissal
dismissing Defendant Maricela Miranda from this action.
On April 25, 2022, Henrik’s now operative Second Amended Complaint
against GSB alone alleges :
(1) Deceit pursuant to Civil Code Section 1709 against GSB and
Does 1-100;
(2) Intentional Misrepresentation against GSB and Does 1-100;
(3) Fraudulent Concealment against GSB and Does 1-100;
(4) Negligence against GSB and Does 1-100;
(5) Breach of Written Contract against GSB and Does 1-100;
(6) Breach of Implied Covenant of Good Faith and Fair Dealing
against GSB and Does 1-100;
(7) Breach of Fiduciary Duty against Silva and Does-100.
On May 19, 2022, Defendant GSB met and conferred regarding the
updates to the Second Amended Complaint (“SAC”) but failed to reach a resolution
as to these claims.
On June 6, 2022, GSB demurred to the SAC on various grounds,
including that Henrik did not have leave of the Court to allege the new Deceit,
Misrepresentation, and Implied Covenant claims in the SAC and that the surviving
claims of Concealment, Negligent, and Breach of Written Contract against GSB were
insufficiently pled within the meaning of Code of Civil Procedure section 430.10,
subdivision (e).
On June 6, 2022, GSB also made a Motion to strike the Deceit,
Misrepresentation, and Implied Covenant claims in the SAC for failure to obtain
leave of the Court to allege these claims.
On June 17, 2022, Henrik dismissed from this action, with prejudice,
(1) the Breach of Fiduciary Duty claim against Defendant Silva and (2) Defendant
Silva herself.
Again, GSB is the sole remaining Defendant in this action.
The Court TAKES judicial notice of its April 14, 2022 Order as
requested by Defendant GSB. (See Demurrer, RJN; see also Evid. Code, §§ 452, subd.
(d), 453.)
Meet and Confer: The Court finds that Defendant GSB
satisfied the meet and confer requirement pursuant to Code of Civil Procedure section
435.5, subdivision (a)(3)(A). (Mot., Reply, Lee Decl., ¶¶ 4-5.)
Legal Standard: Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court,
rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion
and upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any pleading
not drawn or filed in conformity with the laws of California, a court rule, or an
order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz¿(1954)
42 Cal.2d 767, 782.)
Analysis: Defendant GSB seeks to strike from the SAC
the First, Second, and Sixth Causes of Action on the grounds that Plaintiff Henrik
Agasyan was never granted and never sought leave of the Court to include three new
causes of action in his second Amended Complaint. (Mot., 2:13-22.) GSB’s position
is availing.
“Following an order sustaining a demurrer or a motion for
judgment on the pleadings with leave to amend, the plaintiff may amend his or her
complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortgage,
FSB (2010) 185 Cal.App.4th 1018 [citing to People ex rel. Dept. Pub. Wks.
v. Clausen (1967) 248 Cal.App.2d 770, 785 (leave to amend complaint did not
constitute leave to amend to add new defendant)].)
The record clearly reflects that the April 14, 2022 Order
does not grant Henrik the leave to amend the Second Amended Complaint to add three
brand new causes of action. (See Apr. 14, 2022 Minute Order, p. 12.) Neither does
the record reflect that Henrik Agasyan requested leave from this Court to allege
these claims in the SAC. (See docket generally.)
On Opposition, Plaintiff Henrik argues that his three new
causes of action are “within the scope of the [Court’s April 14, 2022] order.” (Mot.,
Opp’n, 4:14-17; see also Demurrer Opp’n, 4:20-5:20.)
The Court strongly disagrees. The Court’s April 14, 2022 Order
is clear: Plaintiff Henrik Agasyan was given leave only to amend the FAC’s Concealment,
Breach of Contract, and Negligence claims and nothing else.
To the extent that Henrik argues that the Court granted wholesale
leave to amend his pleadings on April 14, 2022 (Mot., Opp’n, 5:1-12), the Court
notes that the ‘leave to amend’ contemplated by Plaintiff Henrik—i.e., leave to
amend an entire complaint through the court’s leave—is distinguished from the ‘leave
to amend’ for demurrer purposes pursuant to Code of Civil Procedure section 430.10,
subdivision (e)—i.e., leave to amend a cause of action to which a successful demur
has been sustained insofar as amendment allows the plaintiff or cross-complainant
to sufficiently plead that claim.
Meet and Confer: The Court finds that Defendant GSB
satisfied the meet and confer requirement pursuant to Code of Civil Procedure section
430.41, subdivision (a)(3)(A). (Demurrer, Reply, Lee Decl., ¶¶ 4-5.)
Legal Standard: A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only
to challenge defects that appear on the face of the pleading under attack or from
matters outside the pleading that are judicially noticeable. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need
only allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing
the sufficiency of the cause of action, the demurrer admits the truth of all material
facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions
of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When
considering demurrers, courts read the allegations liberally and in context. (Taylor
v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached
to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If
facts appearing in the exhibits contradict those alleged, the facts in the exhibits
take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th
1443, 1447.)
First, Second, and Sixth Causes of Action [Deceit, Misrepresentation,
Breach of Implied Covenant]: MOOT.
Having struck the First, Second, and Sixth Causes of Action from
the SAC (see Motion to Strike discussion supra), GSB’s demur against the
same claims is moot.
Third Cause of Action [Fraudulent Concealment]: SUSTAINED,
With Leave.
“[T]he elements of an action for fraud and deceit based on a
concealment are: (1) the defendant must have concealed or suppressed a material
fact, (2) the defendant must have been under a duty to disclose the fact to the
plaintiff, (3) the defendant must have intentionally concealed or suppressed the
fact with the intent to defraud the plaintiff, (4) the plaintiff must have been
unaware of the fact and would not have acted as he did if he had known of the concealed
or suppressed fact, and (5) as a result of the concealment or suppression of the
fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center,
Inc. (2011) 198 Cal.App.4th 230, 248.)
The SAC bases the Concealment claim on: (1) Defendant Dawod excusing
herself from Plaintiff Henrik’s presence during Henrik’s initial attempt to withdraw
the Disputed Funds and returning to recommend that Henrik walk over to Wells Fargo
to instead effect a wire transfer; (2) GSB, through its employees, acting to inform
Defendant Silva Agasyan of Henrik’s attempts to withdraw the Disputed Funds and
to facilitate the transfer of the Disputed Funds into Silva’s individual Account
at GSB; and (3) GSB not revealing its intended and actual actions to Henrik. (SAC,
¶¶ 60-64.)
The Court has a difficult time finding that the conduct described
is “concealment,” but not for the reasons argued by Defendant GSB. (Demurrer, 7:4-11
[arguing no concealment because “Plaintiff’s SAC … alleges [only] that Defendant
[GSB] did not proactively inform him [Henrik] of goings-on with regard to the [joint]
account”].)
In Opposition, Plaintiff Henrik argues that the proper characterization
of the Concealment claim is that “Plaintiff properly made a request for transfer
and in conformance with the Funds Transfer Request specified in Plaintiff’s agreement
with GSB” and that “Defendant dishonored fulfillment of the request and instead
honored Silva Agasyan’s request for the same amount.” (Demurrer, Opp’n, 9:9-12.)
These allegations lead the Court to conclude that the gravamen
of the Concealment claim is that Defendant Dawod caused injury to Henrik by instructing
him to go to Wells Fargo to effect the transfer of the Disputed Funds OR that
Defendant Cash was unable to give the Disputed Funds to Henrik after Silva had
transferred these to her separately owned Silva Account because these are the most
reasonable construction of the pleadings—within the Opposition’s construction—that
GSB “dishonored” Henrik’s request to transfer the Disputed Funds. However, such
pleadings, at the most, plead a ‘misrepresentation’ by Dawod and Cash’s
inability to dispense already transferred funds, not Concealment. (See also
SAC, Fifth Cause of Action, ¶¶ 88-95 [alleging Breach of Written Contract based
on Dawod not issuing the Disputed Funds and GSB thus breaching contract on the
Joint Account].)
On Opposition, Plaintiff Henrik limits his arguments to whether
materiality, duty, and intent are sufficiently alleged in the SAC as to support
a Concealment claim. (See Demurrer Opp’n, 8:14-9:21.) The Opposition therefore fails
to address the sufficiency of the alleged “concealments.”
Fourth Cause of Action [Negligence]: SUSTAINED, With
Leave.
“‘The elements of a cause of action for negligence are … “(a)
a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach
as the proximate or legal cause of the resulting injury.”’” (Ladd v. County of
San Mateo (1996) 12 Cal.4th 913, 917.) “Breach is the failure to meet the standard
of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627,
643.)
A bank may be liable in negligence where it fails to discharge
its contractual duties with reasonable care. (Das v. Bank of America, N.A.
(2010) 186 Cal.App.4th 727, 741.)
The Fourth Cause of Action premises Negligence on GSB:
(1) Failing to take curative action after Plaintiff disputed
to GSB the transfer of $250,000.00 by SILVA from the subject account into SILVA’s
personal bank account at GSB;
(2) Failing to freeze the disputed $250,000.00; and
(3) Failing to place the disputed funds of $250,000.00 in interpleader.
(Complaint, ¶¶ 85, 85 (a)-(c).)
The Court agrees with GSB: the SAC
does not sufficiently alleges duty and breach of duty in the Negligence claim. (Demurrer,
8:25-11:13.) The SAC does not sufficiently allege, nor does the Opposition sufficiently
clarify, why GSB had a duty to freeze, interplead, or otherwise take curative action
with respect to the $250,000.00 transferred by Silva Agasyan to her personal Silva
Account on November 19, 2019. (SAC, ¶¶ 73-87; Demurrer Opp’n, 9:22-10:6.) At most,
the SAC alleges that “Defendant owes a duty to act as a reasonably prudent banking
institution within the same or similar communities to its customers and accounts
holders in relation to handling their transactions, including Plaintiff.” (SAC,
¶ 83.) However, based on the SAC’s allegations, Silva was entitled to equal access
to the funds in the Joint Account from which these monies were drawn (see SAC, ¶
104), and therefore had the ability to move funds from that the Joint Account
to the Silva Account.
Second Amended Complaint, Fifth Cause of Action [Breach of
Written Contract]: SUSTAINED, With Leave.
“To prevail on a cause of action for breach of contract, the
plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract
or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting
damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182,
1186.)
Plaintiff alleges that, by virtue of opening the Joint Account,
a contract was formed between GSB and Henrik Agasyan and that GSB breached this
contract when Dawod failed to issue the Disputed Funds to Henrik and instead advised
Henrik to transfer the Disputed Funds using a wire transfer from Wells Fargo. (SAC,
¶¶ 88-95.)
Defendant GSB argues on demur that “Plaintiff fails to plead
with any factual allegations how GSB breached these terms of the contract.” (Demurrer,
11:11.) The Court agrees.
The SAC alleges that Dawod advised that Mr. Agasyan use an “alternative
means” of money transfer for the Disputed Funds and Mr. Agasyan assented to the
request. (SAC, ¶¶ 25-31, 92-95.) The SAC therefore in no way pleads that Henrik
Agasyan was denied the ability to withdraw the Disputed Funds from the account,
but rather, that Henrik was given an alternate option for effecting the same goal
and willingly took on that option.
Plaintiff Henrik’s Opposition does nothing to change the Court’s
conclusion because Henrik’s Opposition focuses on establishing that a contract existed
between the parties and on enumerating the clauses of the contract that were breached
without addressing how Henrik’s voluntary decision to use an alternate method to
transfer the Disputed Funds breached those same provisions. (Demurrer Opp’n, 10:17-11:5.)
To the extent that Plaintiff argues that GSB acted in concert
with Silva to defraud or deprive Henrik of the Disputed Funds, such allegations
more appropriately describe tortious conduct that is not alleged as the basis for
this cause of action. The Breach of Written Contract Claim is instead grounded in
claims (1) that GSB initiated the wire transfer process of the Disputed Funds for
Henrik in house before recommending that Henrik effect the wire transfer through
Wells Fargo, option which Henrik willingly took in reliance on the Dawod
suggestion, and (2) that such conduct by a GSB employee amounted to a refusal
by GSB to issue a wire transfer or withdrawal and thus, constituted a breach of
the parties’ contractual provisions regarding wire transfer and withdrawals from
client accounts. (SAC, ¶¶ 88-95.)
Defendant Golden State Bank’s Motion to Strike Portions of Plaintiff’s
Complaint is GRANTED and the Second Amended Complaint’s First, Second, and Sixth
Causes of Action are STRUCK based on Plaintiff Henrik Agasyan’s failure to request
leave.
Defendant Golden State Bank’s Demurrer is (1) MOOT as to the
First, Second, and Sixth Causes of Action alleged in the SAC based on the Court’s
Grant of the GSB Motion to Strike and (2) SUSTAINED as to Third through Fifth Causes
of Action based on insufficient pleading within the meaning of Code of Civil Procedure
section 430.10, subd. (e).
Plaintiff is permitted ten (10) days’ LEAVE TO AMEND his SAC
and file an amended pleading for the Third through Fifth Causes of Action.
NO LEAVE TO AMEND is permitted as to the SAC’s First, Second,
and Sixth Causes of Action absent an order from this Court.