Nguyen vs. TD Bank

And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379 [citing Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967].).

A court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

First Amended Complaint (FAC)

Plaintiff filed her FAC on 5/7/26 on form PLD-C-001. Under Paragraph 8 of the FAC, Plaintiff does not check off the box for breach of contract, but rather checks the box for “other” causes of action and alleges the following: “Only authorized registered accounts/customers, banks are agents for receiving money on behalf of these customers CA Fin Code § 105.2.” She also alleges the following under Paragraph 9: “Banks violated CA Com § 11105 rule for fund transfer to authorized accounts, customers regulating how banks process payment orders on behalf of their clients, due to no authorized account/customer on bank system, banks are not authorized.”

Plaintiff attaches a declaration in support of the FAC wherein she declares the following: “I called these banks for the information of the accounts that money wired to. They all said those accounts did not exist in their systems. So the banks created the accounts and deleted without the trace. But the money I sent to these banks were kept by them without return. By USA business law, the record of all customers must be kept for 7 years. My case in court reported last year Feb 01 2024 as scam happened to me and I reported in end of Feb 2024. Now I got the final judgement to follow the debtor. I called the bank where the debtor registered the account to get my money. The agent/bank agents said there is no such account numbers

that I had on my records of bank transactions of Well [sic] fargo to their banks.”

Plaintiff alleges that Defendants violated Fin. Code § 105.2 and Comm. Code § 11105 because they failed to return the money that Plaintiff sent via wire transfer.

Defendant MACU contends that neither of these statutes allow for a private right of action, and Plaintiff failed to allege any contractual relationship between her and Defendant MACU.

First, with regards to Plaintiff’s claim for violation of Financial Code § 102.5, Defendant MACU correctly notes that Financial Code § 105.2 has been repealed; however, Financial Code § 105 provides the following: “Banks are divided into the following classes: (a) Commercial banks. (b) Industrial banks. (c) Trust companies.”

Fin. Code § 109 provides: “‘Commercial banking business’ includes, but is not limited to, the business of soliciting, receiving, or accepting of money or its equivalent on deposit as a regular business whether the deposit is made subject to check or is evidenced by a certificate of deposit ... .”

Comm. Code § 11105 provides:

(a) In this division: (1) “Authorized account” means a deposit account of a customer in a bank designated by the customer as a source of payment of payment orders issued by the customer to the bank. If a customer does not so designate an account, any account of the customer is an authorized account if payment of a payment order from that account is not inconsistent with a restriction on the use of that account. (2) “Bank” means a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union, and trust company.

A branch or separate office of a bank is a separate bank for purposes of this division. (3) “Customer” means a person, including a bank, having an account with a bank or from whom a bank has agreed to receive payment orders. (4) “Funds-transfer business day” of a receiving bank means the part of a day during which the receiving bank is open for the receipt, processing, and transmittal of payment orders and cancellations and amendments of payment orders.

(5) “Funds-transfer system” means a wire transfer network, automated clearinghouse, or other communication system of a clearinghouse or other association of banks through which a payment order by a bank may be transmitted to the bank to which the order is addressed. ...

Defendant MACU cites to Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592 in support of the argument that both these code sections provide definitions only and no basis for liability. As the court held in Lu, “when neither the language nor the history of a statute indicates an intent to create a new private right to sue, a party contending for judicial recognition of such a right bears a heavy, perhaps insurmountable, burden of persuasion.” (Id. at 601 [citing Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 133]).

Defendant MACU contends that because Fin. Code § 105.2 was a definitional provision, and not a substantive regulatory command, it would have contained no language creating a private right of action, no reference to a remedy, and no indication that the Legislature intended private enforcement. Similarly, Defendant MACU contends that Comm. Code § 11105 defines several foundational terms used throughout Division 11, but does not establish duties or create any cause of action, remedies, or specify who may bring a claim, and is purely definitional.

Plaintiff failed to establish how Defendant MACU could have violated either of these statutes to give rise to a cause of action.

In her FAC, Plaintiff alleges/declares that these claims are based on the allegation that “the banks created the accounts and deleted without the trace. But the money I sent to these banks were kept by them without return.” However, Plaintiff also alleges/declares that she received a judgment against the “debtor”, and called the bank where the debtor registered the account to get her money. These allegations are unclear, at best. On the one hand, Plaintiff is alleging that the banks kept her money and that the accounts do not exist, but on the other hand, Plaintiff is alleging that she obtained a judgment against a debtor because of these wire transfers, and is attempting to collect this judgment by going through the debtor’s banks. Neither Comm. Code § 11105, nor Fin. Code §§ 105.2 or 109, provides Plaintiff with a basis to do that.

In Plaintiff’s Opposition, Plaintiff adds further allegations to supplement her declaration in her FAC, providing the names on the

accounts, account numbers/transfer numbers and the amount transferred to each bank. She also contends that Comm. Code § 11105 allows fund transfer to process by the bank if a customer is registered on that bank system, and that the bank cannot receive that fund transfer if the bank does not have that person. However, Comm. Code § 11105 does not provide for such duties. Furthermore, Plaintiff also acknowledged in her Opposition, as she did in her FAC, that she received a default judgment relating to these transfers. Her Opposition contains the same discrepancies as her FAC, and she fails to establish how Defendant MACU “violated” either of these code sections that are purely definitional.

Accordingly, the demurrer is sustained.

Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.

Defendant Mountain American Credit Union shall give notice

6 Pacheco vs. OFF CALENDAR General Motors LLC 7 Sanmina TENTATIVE RULING: Corporation vs. Gemayel Plaintiff/Cross-Defendant Sanmina Corporation’s demurrer to Defendant/Cross-Complainant George Gemayel’s cross-complaint is SUSTAINED.

Defendant/Cross-Complainant Gemayel is granted 30 days leave to file an amended cross-complaint.

Request for Judicial Notice

The court GRANTS Sanmina’s request for judicial notice in support of its demurrer as to nos. 1, 2, 4 and 5, and DENIES the request for no.

3. Sanmina contends that Gemayel incorporates the PSA, Exhibit 1, by reference into his Cross-Complaint at paragraph 8. Sanmina also cites to Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, where the trial court judicially noticed the entire master lease that was in issue. (Id. at 128, fn. 1). It is true that Gemayel refers to the PSA and the First Amendment in his cross-complaint. (See Cross-Complaint (“CC”), ¶ 10), but he does not allege anything about the “reaffirmation of Indemnity.”

The court also GRANTS Sanmina’s request for judicial notice in support of its Reply. (Evid. Code § 452, subd. (d)).