Judge: Shirley K. Watkins, Case: 23VECV00615, Date: 2023-05-15 Tentative Ruling

Case Number: 23VECV00615    Hearing Date: May 15, 2023    Dept: T

23VECV00615 HASSAN AMINGHAZAEI vs BANK OF AMERICA N. A.

[TENTATIVE] ORDER:  Defendant Bank of America’s Demurrer to the Verified Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the second cause of action for violation of Civil Code section 3439.04; and otherwise SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the first and third causes of action only for violation of the Unfair Competition Law claims.  No other amendment is allowed.

            Defendant Bank of America’s Request for Judicial Notice is GRANTED as to the documents existence but not as to hearsay or facts in dispute.

Introduction

            Defendant Bank of America (Defendant) demurred to Plaintiff Hassan Aminghazaei’s (Plaintiff) Verified Complaint (VC.)  Defendant’s demurrer placed into issue the three causes of action (COA) alleged:  violation of Business & Professions Code section 17200 (unlawful prong – Penal Code section 532 (theft under false pretense;)) violation of Civil Code section 3439.04; and violation of Business and Professions Code section 17200 (unlawful prong – Title 18 of the United States Code section 1343 (mail fraud.))

            Discussion[1] 

Defendant argued that Plaintiff lacks standing to bring these claims, as an individual.  Plaintiff alleged that he deposited checks into a business account held by 26Construct26, Inc.  (VC par. 8.)  The factual allegation implies that the check was made out to a corporate entity since it was deposited into a corporate entity’s bank account.  Without additional facts to support Plaintiff’s claims, as an individual, the pleading lacks sufficient facts to show standing (that is, the check is to a corporate entity, the plaintiff is not the corporate entity but instead is an individual).  On this pleading defect, the Demurrer is persuasive and is sustained with leave to amend.

Plaintiff’s argument that he is the “sole owner, officer and agent” of 26Construct26, Inc. is unavailing, does not create standing, and instead bolsters Defendant’s argument as to standing.  Plaintiff’s capacity as a “sole owner, officer and agent” provided additional facts to show the separate identity between Plaintiff and 26Construct26, Inc.  Because the corporate entity and Plaintiff, as an individual, are separate persons within the meaning of the law, Plaintiff has not sufficiently alleged facts to show his standing as an individual to claim rights to the funds deposited into the account of the corporate entity 26Construct26, Inc.’s bank account.

            The Demurrer is SUSTAINED with leave to amend as to the issue of standing.

            Defendant then argued that the first and third COAs for violation of the Unfair Competition Law (UCL) are insufficiently pled with supportive facts.  Defendant argued that the first and third COAs alleged improper damages.  However, the factual allegations are sufficient to show that Plaintiff can seek restitution of the funds improperly retained by Defendant.  The fact that Plaintiff alleged/requested damages other than restitution is not a proper issue for a demurrer.  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  Defendant’s demurrer on the argument that Plaintiff alleged improper damages is unpersuasive.

            Defendant argued that there are insufficient facts to plead the elements of the unlawful prong under the first COA’s UCL claim (i.e., theft on false pretense) and the third COA’s UCL claim (i.e., mail fraud.)  Defendant argued that the alleged “theft” or “taking” was merely a routine hold on the deposited funds.  However, Defendant’s argument is based upon a mischaracterization of the allegations.  Although Plaintiff initially alleged that Defendant placed a hold on the funds (VC pars. 10-11,) Plaintiff further alleged that the hold was improper and eventually Defendant placed the funds into Defendant’s account.  (VC pars. 16, 18-19.)  Defendant’s argument failed to recognize all the factual allegations of the VC.  Because the taking of the funds is not alleged to be a “routine hold,” Defendant’s argument as to the first and third COAs is unpersuasive.

            The demurrer to the first and third COA is SUSTAINED WITH LEAVE TO AMEND only in order to plead sufficient facts to allege standing/real party-in-interest.  No other amendment is permitted.

Defendant argued that the second COA for violation of Civil Code section 3439.04 (Uniform Void Transactions Act or UVTA) failed to allege sufficient supportive facts.  The UVTA prohibits a debtor from transferring assets to third parties to avoid creditors.  Plaintiff failed to allege sufficient facts to show any creditor/debtor relationship and any transfer of assets by Defendant, as a debtor, to avoid paying Plaintiff, as a creditor.  Plaintiff failed to address the argument and merely recited the allegations made in the VC.  However, the facts alleged in the VC are insufficient to plead a UVTA COA.  Because Plaintiff failed to show how the pleading defects of the second COA can be cured, the demurrer to the second COA is SUSTAINED WITHOUT LEAVE TO AMEND. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.