Dagdagan v. Bank of America CA2/8

Filed 5/25/16 Dagdagan v. Bank of America CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANACORETA DAGDAGAN, B261467
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. TC027709)
v.
BANK OF AMERICA, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
William P. Barry, Judge. Affirmed.
Stephen R. Golden & Associates and Stephen R. Golden for Plaintiff and
Appellant.
Severson & Werson, Jan T. Chilton and Jonah S. Van Zandt for Defendant and
Respondent.
******
Plaintiff Anacoreta Dagdagan challenges the trial court’s sustaining of a demurrer
to her complaint for breach of contract and unfair business practices (Bus. & Prof. Code,
§ 17200) against defendant Bank of America, N.A. (BofA). We affirm.
BACKGROUND
According to plaintiff’s operative second amended complaint (SAC) and
documents attached thereto, in March 2005, plaintiff entered an “Equity Maximizer
Agreement” with BofA for a $123,100 line of credit, secured by her residence (the
Agreement). She was able to obtain advances on the line of credit with “special
convenience checks.” One term of the Agreement reserved to BofA the right not to
honor those checks if they have been reported lost or stolen, or if they have not been
signed by an authorized signer. If BofA did honor a check, plaintiff agreed to repay the
amount of the check.
The Agreement also included a “Billing Error Rights” page, informing plaintiff it
contained “important information about your rights and our responsibilities under the Fair
Credit Billing Act.” Among other terms, it required plaintiff to report any billing errors
in writing within 60 days of the first bill on which the error appeared. If so notified,
BofA was required to investigate the error and report its results within 90 days.
In April 2011, plaintiff noticed activity on her account she did not authorize, and
she notified BofA. She received a phone call from a branch of BofA that someone had
cashed a check against her line of credit. It was made out to “Dyamond Shann” for
$1,800 and bore plaintiff’s signature. The check was a forgery, so someone must have
stolen it.
Plaintiff thereafter signed up with BofA for a program called “Privacy Assist
Premier” to protect her accounts. She also made “dozens” of visits to her local BofA
branch and calls to BofA’s fraud department to prevent further identity theft. And she
filed a police report regarding the forged check.
In May 2011, there was a spate of suspicious activity on plaintiff’s account. Two
online advances totaling $62,000 were made from the account, which plaintiff disputed.
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BofA honored the dispute and credited her account with $62,000. BofA also stopped six
suspicious transactions and returned the withdrawn funds to plaintiff’s account.
Also in May 2011, four checks were written totaling $18,700 and payable to
plaintiff’s son, Dino Dagdagan. She alleges these were also forged. She did not submit a
fraud claim for these transactions to BofA until more than 18 months later in December
2012. BofA denied the claim because it was untimely submitted more than 60 days after
plaintiff received her statement reflecting the disputed transactions. Plaintiff retained
counsel, who requested BofA reconsider its denial. BofA did, but again denied the claim
because it was untimely.
Plaintiff filed her original complaint in December 2013. She eventually filed her
operative SAC, alleging BofA breached the Agreement and violated Business and
Professions Code section 17200 by holding her responsible for the fraudulent transactions
on her account. BofA demurred to the SAC, which the trial court sustained without leave
to amend. The record on appeal does not contain the court’s order or a reporter’s
transcript of the hearing on the demurrer.
DISCUSSION
We review the sustaining of a demurrer de novo. Assuming all facts properly
pleaded or reasonably inferred from the pleaded facts are true, we must determine
whether those facts state a claim under any legal theory. (Scott v. JPMorgan Chase
Bank, N.A. (2013) 214 Cal. App. 4th 743, 751.) We may consider the truth of any
documents attached to the complaint, and if they contradict factual allegations in the
complaint, we give the documents credence. (Dodd v. Citizens Bank of Costa Mesa
(1990) 222 Cal. App. 3d 1624, 1627.) We review the denial of leave to amend for abuse
of discretion, deciding whether there is a reasonable possibility any defect can be cured
by amendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The burden to show a
reasonable possibility of amendment rests with the appellant. (Ibid.)
On appeal, plaintiff does not defend her breach of contract claim on the ground
alleged in the SAC, and she does not address her unfair business practices claim at all.
We find these points abandoned. (Connerly v. State of California (2014) 229
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Cal. App. 4th 457, 462 (Connerly); Ellenberger v. Espinosa (1994) 30 Cal. App. 4th 943,
948.) Even if not abandoned, these claims fail on the merits. In the Agreement, BofA
reserved the right not to honor stolen or unauthorized convenience checks, but if it opted
to honor the checks, plaintiff agreed to pay the amounts. The Agreement also gave
plaintiff 60 days to dispute any amounts, and she reported the forged checks made out to
her son more than 18 months after they appeared on her statement. Thus, BofA complied
with the terms of the Agreement by denying her claim as untimely. (See Hamilton v.
Greenwich Investors XXVI, LLC (2011) 195 Cal. App. 4th 1602, 1614 (Hamilton)
[elements for breach of contract are “‘(1) the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to
plaintiff’”].) Plaintiff’s unfair business practices claim is wholly derivative of her breach
of contract claim, so it fails for the same reason.
Plaintiff raises several new theories on appeal to argue she has stated a claim
based on the factual allegations in the SAC. We briefly address them, concluding none is
meritorious. (See Connerly, supra, 229 Cal.App.4th at p. 462 [plaintiff may raise new
theories on appeal from order sustaining demurrer without leave to amend].)
First, plaintiff attempts to support her breach of contract claim by arguing the
Agreement was an invalid contract of adhesion because the 60-day time limit to submit
her fraud claim was not conspicuous and did not fall within her reasonable expectations.
“Although contracts of adhesion are generally enforceable according to their terms, a
provision contained in such a contract cannot be enforced if it does not fall within the
reasonable expectations of the weaker or ‘adhering’ party.” (Fischer v. First Internat.
Bank (2003) 109 Cal. App. 4th 1433, 1446.) A clause frustrates the expectations of the
weaker party when it fails to give that party “plain and clear notice” of the term. (Marin
Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89
Cal. App. 4th 1042, 1057.)
We have reviewed the “Billing Error Rights” attached to the SAC, and we can say
as a matter of law that none of the terms are inconspicuous or hidden such that they
would have frustrated plaintiff’s expectations under the Agreement. The time limit and
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other clauses are stated plainly in a reasonably sized font, clearly spelling out plaintiff’s
and BofA’s respective obligations, including that plaintiff was required to dispute any
checks within 60 days of the payment appearing on her statement. Further, the time limit
term could not have fallen outside plaintiff’s reasonable expectations because the federal
Fair Credit Billing Act requires consumers to submit a “billing error notice” within 60
days after being sent the disputed statement. (15 U.S.C., § 1666, subd. (a); 12 C.F.R.
§ 226.13(b)(1).) The “Billing Error Rights” page BofA included with the Agreement was
nearly identical to the standard form required under the Fair Credit Billing Act. (12
C.F.R. § 226.6(a)(5); 12 C.F.R., pt. 226, appen. G, model form G-3.)
Second—and without citing any authority—plaintiff suggests BofA violated her
“economic expectancy” in the Privacy Assist Premier program by not honoring her fraud
claim. This appears to be another theory to support a breach of contract claim, but
plaintiff has failed to set forth facts to support it, such as that (1) the Privacy Assist
Premier program constituted a valid contract, (2) one of its terms required BofA to honor
otherwise untimely fraud claims, (3) plaintiff satisfied any obligations she might have
had in the program, and (4) BofA breached its obligations by rejecting her fraud claim.
(See Hamilton, supra, 195 Cal.App.4th at p. 1614.)
Third—and again without citing any authority—plaintiff claims BofA fraudulently
induced her to sign up for the Privacy Assist Premier program by representing she would
be protected from the forged checks. But she has failed to set forth facts that might
substantiate a fraud claim. “The essential allegations of a cause of action for deceit are
representation, falsity, knowledge of falsity, intent to deceive, and reliance and resulting
damage (causation). [Citation.] ‘[F]raud must be pled specifically; general and
conclusory allegations do not suffice.’ [Citation.] The particularity requirement
‘“necessitates pleading facts which ‘show how, when, where, to whom, and by what
means the representations were tendered.[’]”’” (Hamilton, supra, 195 Cal.App.4th at
p. 1614.) Plaintiff has utterly failed to identify who she spoke with at BofA, or what was
said and when. She claims simply that the “circumstances surrounding” her signing up
for the Privacy Assist Premier program led her “to believe she would not suffer liability
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for the existing check forgeries that led to [BofA] offering the fraud protection services in
the first place.” This falls well short of the specificity needed to state a claim for fraud.
To the extent plaintiff alludes to additional issues in her opening brief, they are
conclusory and unsupported by citations to the record or legal authority. We find them
waived. (1119 Delaware v. Continental Land Title Co. (1993) 16 Cal. App. 4th 992,
1004.)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
WILLHITE, J.*
* Associate Justice of the Court of Appeal, Second Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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