Judge Ronald F. Frank, Case 22TRCV00913 2023-01-06 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00913, Date: 2023-01-06 Tentative Ruling

Case Number: 22TRCV00913 Hearing Date: January 6, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 6, 2023¿¿

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CASE NUMBER: 22TRCV00913

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CASE NAME: Elbashier M. Kheir v. Bon Hoa Patrice, et al .¿¿¿

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MOVING PARTY: Defendant, Wells Fargo Bank, N.A.

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RESPONDING PARTY: Plaintiff, Elbashier M. Kheir

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TRIAL DATE: None set¿

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MOTION:¿ (1) Demurrer¿

Tentative Rulings: (1) Sustained, with 20-days leave to amend as to the negligence cause of action but without leave to amend as to the statutory claim

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I. BACKGROUND¿¿

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A. Factual¿¿

On October 11, 2022, Plaintiff, Elbashier M. Kheir (“Plaintiff”) filed this action against Defendants, Bon Hoa Patrice, Wells Fargo, Eric Doe, and DOES 1 through 10. The Complaint alleges cases of action for: (1) Breach of a Written Contract; (2) Unlawful Conversion; (3) Money Had & Received; (4) Theft by False Pretense; (5) Money Laundering; (6) Negligence; (7) Violation of Consumers Protection Act; (8) Intentional Misrepresentation; and (9) Negligent Misrepresentation.

This is action is based on an alleged rental scam perpetrated by Defendant, Bon Hoa Patrice (“Patrice”). Allegedly, Patrice instructed Plaintiff to deposit $4,000 into Patrice’s bank account at Wells Fargo in exchange for renting a property. (Complaint (“Compl.”), ¶¶ 11, 13. Plaintiff deposited the money, but never received the keys to the property. Plaintiff later discovered that Patrice was not the owner of the property. (Compl., ¶¶ 17-18.) Plaintiff contends that Defendant, Wells Fargo Bank, N.A. (“Wells Fargo”) ignored Plaintiff’s concerns at one of their branch locations in Gardena, California. (Compl., ¶ 19.) Plaintiff asserts he then visited the Hawthorne, California office and spoke with a manager who indicated that he would need to contact their San Francisco Office to resolve his issue. Plaintiff’s Complaint notes that he assigned his rights to Bobby Gossai who eventually transferred them back, but that Wells Fargo responded by telephone promising to resolve the issue. (Compl., ¶¶ 21-24.)

Defendant, Wells Fargo now demurs.

B. Procedural¿¿

On November 29, 2022, Defendant Wells Fargo filed this demurrer. On December 20, 2022, Plaintiff filed an opposition. Wells Fargo filed its Reply on December 28, 2022.

¿II. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿¿

¿¿Defendant Wells Fargo demurs to Plaintiff’s Complaint on the following grounds: (1) The sixth cause of action for Negligence does not state facts sufficient to constitute a cause of action as to Wells Fargo; and (2) The Seventh cause of action for violation of Consumer Financial Protection Act does not state facts sufficient to constitute a cause of action as to Wells Fargo.

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¿III. ANALYSIS¿

A. Demurrer¿¿¿

A demurrer 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 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.) For the purpose of 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, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

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Negligence

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

A bank’s “basic duty of care - to act with reasonable care in its transactions with its customers – arises out of the bank’s contract with its customer. (Rodriguez v. Bank of the West (2008) 162 Cal.App.4th 454, 460.) California Commercial Code § 4104, subd. (a)(5) defines a bank’s customer as “a person having an account with a bank or for whom the bank has agreed to collect items.” A bank’s duty of care is owed to its depositors, not to strangers, except when the bank has allowed a person to deposit a check payable into the customer’s account, notwithstanding that the check was payable to someone else. (Sun ‘n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671.)

Here, Plaintiff’s complaint alleges that he went to a Wells Fargo branch and made two $2,000.00 deposits into a Wells Fargo account at the direction of Defendant Patrice. (Compl., ¶¶ 11, 13.) Plaintiff further alleges that he reported the fraudulent transactions to Wells Fargo and because Wells Fargo was made aware of the transactions, it had a duty to investigate the matter and retrieve/refund Plaintiff’s funds. (Compl., ¶¶ 54, 56.) Plaintiff’s Complaint does not allege that he was a customer of Wells Fargo. Because this fact has not been alleged, Plaintiff has not established that Wells Fargo owed him a duty. As such, Plaintiff has not alleged sufficient facts to state a cause of action for negligence. Defendant Wells Fargo’s demurrer is thus sustained with leave to amend.

Violation of Consumer Financial Protection Act

As noted by Defendant Wells Fargo, actions for violation of the Consumer Financial Protection Act (“CFPA”) can only be enforced by the federal Consumer Financial Protection Bureau, by state level attorneys general, or by state-level regulatory agencies. As such, Plaintiff lacks standing to bring a civil action under the CFPA since there is no private right of action to enforce. (See McCray v. Bank of Am., Corp. (D. Md. Apr. 10, 2017) 2017 WL 1315509, at *16; Diaz v. Argon Agency Inc. (D. Haw. Nov. 30, 2015) 2015 WL 7737317 at *3 [“[T]here is no private right of action under [§ 5531 or § 5536] of the CFPA, which merely outline duties, authorities and enforcement powers of the CFPB.”]; see also, Kalisz v. Am. Express Centurion Bank, No. 1:15-CV-01578, 2016 WL 1367169, at *2 (E.D. Va. Apr. 5, 2016.) (“The CFPA does not provide a private right of action. Section 5564, reserves litigation power to the Consumer Financial Protection Bureau to enforce any provision of Title 12.”) As such, Defendant Well Fargo’s demurrer is sustained without leave to amend.

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendants, Wells Fargo’s Demurrer is Sustained with Leave to Amend as to the sixth cause of action and sustained without leave to amend as to the seventh cause of action.

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Moving party is ordered to give notice.¿¿¿¿