Judge William A. Crowfoot, Case Number: 24NNCV04907, Date: 2025-05-01 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV04907, Date: 2025-05-01 Tentative Ruling

On October 8, 2024, plaintiff Terrance D. Morton, Sr. (“Plaintiff”) filed this action against defendant Wells Fargo Bank, N.A. (“Defendant”, erroneously sued as “Wells Fargo”). Although Plaintiff does not identify a particular cause of action, Plaintiff alleges that “[an] account was opened without [his] permission” leading to emotional distress. (Compl., p. 1.) Plaintiff also alleges there were two attempts to open a credit account for which he seeks $120,000 in damages. (Id.)

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Defendant demurs to the Complaint on the grounds that it does not state a cause of action. Defendant notes that although the civil case cover sheet indicates “professional negligence” and the Complaint mentions “identity theft,” neither cause of action is sufficiently stated.

First, Defendant argues that banks do not owe a duty of care to noncustomers in whose name accounts are opened. Citing to Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49, Cal.App.4th 472, Defendant states that “the banks’ basic duty of care derives from the contract with their customer” and that “absent extraordinary and specific facts, a bank does not owe a duty of care to a noncustomer.” (Software Design, 49 Cal.App.4th at p. 479.) Here, Plaintiff is not Defendant’s customer because he alleges that he did not consent to the creation of any accounts. (Rodriguez v. Bank of the West (2008) 162 Cal.App.4th 454, 461-462.) Therefore, Plaintiff fails to allege that Defendant owed him a duty of care.

Second, Defendant argues that Plaintiff’s allegations regarding identity theft do not state a cause of action because courts have rejected the invitation to shift the “burden of loss from the actual victim to a third party duped by the thief.” (Demurrer, p. 7.) Specifically, in Rodriguez, supra, 162 Cal.App.4th at p. 466, the Second Appellate District stated that “[g]iven the scope of the problem [of identity theft] and the consequences to the community of imposing a noncontractual duty with the resulting liability for breach, a decision to shift the burden of loss from the actual victim to a third party duped by the thief is one to be made, if at all, by the legislature, not the judiciary.” Given this holding, Plaintiff fails to state a cause of action against Defendant arising from the alleged identity theft.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Plaintiff did not oppose this demurrer and failed to show how amendment possible. Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.