Judge: Mark H. Epstein, Case: 23SMCV03279, Date: 2024-04-30 Tentative Ruling

Case Number: 23SMCV03279    Hearing Date: April 30, 2024    Dept: I

The motion to strike is GRANTED WITH 30 DAYS’ LEAVE TO AMEND. 

Plaintiff is the executor of the decedent’s estate.  She sues Citibank for improperly releasing the decedent’s money to a person with no apparent right to it—Sheets.  Plaintiff is seeking treble damages under the Probate Code, which permits such damages where money is improperly transferred to one having no right thereto.  The treble damages are assessed against the “transferee.”  Citibank asserts here that Sheets is the transferee—after all, Sheets got the money.  Thus, Citibank seeks to strike the request for treble damages.  Citibank also contends that even if it ought not have given Sheets the money, there is no allegation that it did so corruptly—only negligently.  And the negligent transfer of the money to Sheets would not support treble damages or any other form of enhanced damages under the Probate Code.  In opposition, plaintiff notes that the form Sheets provided to Citibank was flawed on its face and should never have been accepted.   Thus, plaintiff argues, Citibank aided and abetted Sheets’ fraud and is equally liable for treble damages.  Plaintiff also contends that Citibank did not aid plaintiff in her efforts to obtain information that would allow her to go after Sheets.

The court agrees that it is possible to read the statute as applying not only to Sheets—the transferee—but also to those who aid and abet Sheets.  The problem is that aiding and abetting requires intent.  In other words, it is not enough that one does something innocent or negligent or even grossly negligent that has the effect of assisting another in a crime or tort.  To be liable for aiding and abetting, the defendant must know of the unlawful or improper act and deliberately do something in furtherance of it.  (People v. Campbell (1994) 25 Cal.App.4th 402; Casey v. United States Bank National Association (2005) 127 Cal.App.4th 1138.)  There is no allegation that Citibank knew Sheets was trying to steal the money or take it improperly, and there is nothing in the complaint that would allow the court rationally to infer it.  Because it appears from the complaint that Citibank acted negligently, or grossly negligently at worst, it is not liable under an aiding and abetting theory.

Given that, the treble damages provision simply does not apply to Citibank.  It is properly stricken and the motion will be GRANTED.  Because this is the original complaint, the court is somewhat bound to allow leave to amend.  The court urges plaintiff, however, not to do so unless plaintiff has a good faith belief that Citibank actually harbored such ill intent.  If plaintiff has a basis for such a belief, plaintiff may amend the complaint to allege it and support it with some factual allegations that would lead to such an inference.  If not, plaintiff should move forward.  Because Citibank has already answered, unless plaintiff amends Citibank need do nothing further to finalize the pleadings.

The court reminds the parties that they have a trial coming up in August.  The court further reminds the parties of the court’s order that they be familiar with and comply with the court’s final status conference and trial rules, which can be found on line.  They are significant and require a lot of work.  The parties should start preparing materials shortly to ensure that all is timely done.  The court further warns the parties that it is very unlikely that the trial will be moved or continued for any reason.