William Bortz v. Jp Morgan Chase Bank, N.A. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM BORTZ; AVE BORTZ, No. 22-55582
Plaintiffs-Appellants, D.C. No.
3:21-cv-00618-TWR-DEB
v.
JP MORGAN CHASE BANK, N.A.; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Argued and Submitted July 13, 2023
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,** District
Judge.
William and Ave Bortz appeal the district court’s order dismissing their
claims of financial elder abuse under California Welfare & Institutions Code
section 15610.30 (“California Financial Elder Abuse Law”). Their complaint
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Brian A. Jackson, United States District Judge for the
Middle District of Louisiana, sitting by designation.
describes a devastating internet-based scam that deprived them of their life
savings. Fraudulent third parties convinced William to send hundreds of thousands
of dollars from his Chase bank account to bank accounts in Hong Kong through a
series of wire transfers. The fraudsters vanished, and plaintiffs now seek to
recover from Chase and its employees. Plaintiffs contend that Chase violated the
California Financial Elder Abuse Law by complying with William’s wire-transfer
orders. We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district
court’s interpretation of California law de novo, Olympic Sport Prods. v. Universal
Athletic Sales Co., 760 F.2d 910, 913 (9th Cir. 1985), we affirm.
1. Plaintiffs’ complaint does not state a claim under subdivision (a)(1) of
the California Financial Elder Abuse Law. Subdivision (a)(1) provides “[f]inancial
abuse of an elder . . . occurs” when a person or entity “[t]akes, secretes,
appropriates, obtains, or retains . . . property of an elder . . . for a wrongful use or
with intent to defraud, or both.” Cal. Welf. & Inst. Code § 15610.30(a)(1).
Subdivision (b) further specifies that “[a] person or entity shall be deemed to have
taken, secreted, appropriated, obtained, or retained property for a wrongful use if,
among other things, the person or entity takes . . . the property and the person or
entity knew or should have known that this conduct is likely to be harmful to the
elder.” Cal. Welf. & Inst. Code § 15610.30(b). Plaintiffs’ complaint alleges that
the scammers took their life savings, not Chase. And although plaintiffs allege that
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Chase charged them a fifty-dollar fee for each wire transfer, they do not
meaningfully allege that those service fees caused them “harm[].” Id.; see also
Paslay v. State Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 658 (2016) (“[W]e
conclude that under subdivision (b) of 15610.30, wrongful conduct occurs only
when the party who violates the contract actually knows that it is engaging in a
harmful breach, or reasonably should be aware of the harmful breach.”).
2. Plaintiffs’ complaint does not state a claim under subdivision (a)(2) of
the California Financial Elder Abuse Law. Subdivision (a)(2) creates liability for a
person or entity that “[a]ssists in taking, secreting, appropriating, obtaining, or
retaining . . . property of an elder . . . for a wrongful use or with intent to defraud,
or both.” Cal. Welf. & Inst. Code § 15610.30(a)(2). Although the California
Supreme Court has not interpreted this provision, a California appellate court has
held that where “a bank provides ordinary services that effectuate financial abuse
by a third party, the bank may be found to have ‘assisted’ the financial abuse only
if it knew of the third party’s wrongful conduct.” Das v. Bank of Am., N.A., 186
Cal. App. 4th 727, 745 (2010); see also Casey v. U.S. Bank Nat’l Ass’n, 127 Cal.
App. 4th 1138, 1145–46 (2005) (“California courts have long held that liability for
aiding and abetting [an intentional tort] depends on proof the defendant had actual
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knowledge of the specific primary wrong the defendant substantially assisted.”).1
Das is the only published state appellate authority to have interpreted section
15610.30(a)(2).
Plaintiffs do not allege that Chase had actual knowledge of the scammers’
wrongful conduct. They instead contend that subdivision (a)(2) imposes strict
liability on persons or entities who “[a]ssist[] in” a wrongful taking by a third
party. Cal. Welf. & Inst. Code § 15610.30(a)(2). Amicus Curiae Institute on
Aging argues in the alternative that the “knew or should have known” standard—
applicable to direct takers under subdivision (b)—should also apply to persons or
entities who “[a]ssist[] in taking” under subdivision (a)(2). Both contend that the
plain language supports their divergent readings of the statute and that Das was
wrongly decided. In the absence of any “convincing evidence” that the California
Supreme Court would depart from Das or adopt the alternative statutory
constructions proposed by plaintiffs or amicus, we are “obligated to follow” that
decision. In re Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990).
AFFIRMED.2
1
Although Das interpreted a previous version of the California Financial Elder
Abuse Law, subsequent amendments did not materially alter subdivision (a)(2).
Compare Cal. Welf. & Inst. Code § 15610.30(a)(2) (2014) with id. (2000).
2
We DENY plaintiffs’ concurrent motion to certify this question to the California
Supreme Court.
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