Judge Elaine W. Mandel, Case Number: 23SMCV04217, Date: 2024-11-07 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV04217, Date: 2024-11-07 Tentative Ruling

Case Number: 23SMCV04217 Hearing Date: November 7, 2024 Dept: P

Tentative Ruling

Ramos v. Wells Fargo, Case no. 23SMCV04217

Hearing date November 7, 2024

Defendant’s Demurrer to the SAC

Plaintiff Myrna Ramos, administrator of decedent Birgitta Sjostrand’s estate, sues defendant Wells Fargo for fraud and elder abuse arising from an allegedly transfer of $19,000 from decedent’s account in June 2019. Defendant’s demurrers to the complaint and FAC were sustained, granting plaintiff leave to amend to allege facts to show the claim was not barred by the statute of repose. Defendant now demurs to the SAC.

Defendant’s requests for judicial notice of: (1) plaintiff’s 3/15/24 FAC, (2) 7/9/24 minute order sustaining defendant's demurrer to FAC, (3) plaintiff’s 9/8/23 complaint and (4) 3/7/24 minute order sustaining defendant's demurrer to the complaint are granted as court records.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Defendant argues the SAC still fails to state facts sufficient to constitute a COA for fraud and remains uncertain pursuant to Code Civ. Proc. §§430.10(e) & (f), 430.50(a), 430.70. Defendant asserts the allegations of fraud still fail the one-year statute of repose per UCC §11505. Defendant argues the SAC is a sham pleading that purposefully omits plaintiff’s 2022 discovery of the alleged fraud in an attempt to plead around the statue of repose, even though the date of discovery was previously alleged in the FAC. RJN ex. A, paras. 10, 13.

Plaintiff argues the UCC does not apply, as it does not cover embezzlement or fraud by bank employees. This argument is unavailing. Article 4A of the UCC governs wire transfers and makes no exception for allegations of employee wrongdoing. Plaintiff cites no authorities to contradict Article 4A.

Defendant argues plaintiff still fails to allege sufficient facts to constitute a COA for fraud against a corporation. Plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.

As with the prior pleadings, plaintiff alleges she is the administrator of the estate of Birgitta Sjostrand and alleges $19,000 was fraudulently transferred from decedent’s account at Wells Fargo to a third party by defendant’s employee Laila Hamid on 6/19/19. SAC paras. 1-6. The SAC does not allege the date the alleged fraud was discovered. These allegations are insufficient to constitute a COA for fraud against a corporation.

Defendant argues plaintiff fails to allege facts sufficient to constitute a COA for elder abuse. The court previously sustained defendant’s demurrer to the elder abuse COA because plaintiff failed to allege facts establishing defendant knew decedent was over 65 years old and caused her harm as a result.

There are three types of financial elder abuse, hinging on whether a person: “(1)[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both[;] (2)[a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both[; and] (3)[t]akes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Welfare & Institutions Code § 15610.70.” Welf. & Inst. Code §15610.30. California law “does not impose liability on a defendant who provides ordinary services that effectuate financial abuse by a third party.” Barrett v. Apple, Inc. (N.D. Cal. Mar. 4, 2021) 523 F.Supp.3d 1132, 1161.

Plaintiff alleges defendant knew Sjostrand was over 65 years old. SAC para. 14. Plaintiff alleges defendant transferred funds out of Sjostrand’s account without her consent. SAC para. 6. Plaintiff alleges Sjostrand suffered harm. SAC paras. 16-17. However, plaintiff offers no allegations that defendant knew Sjostrand was being defrauded by a third party nor allegations that defendant took and retained Sjostrand’s property.

These allegations are insufficient to constitute a COA for elder abuse. Plaintiff has been given leave to amend twice. The subsequent failures to sufficiently allege facts sufficient to constitute COAs weighs against further leave to amend. SUSTAINED without leave to amend.