Arciniega v. Bank of San Bernardino

Opinion

McDANIEL, J.

*

Leticia Arciniega (plaintiff) once operated a check-cashing business, styled as Community Financial Services, and in connection therewith maintained a commercial bank account with Bank of San Bernardino, N. A. (defendant). In October of 1986, plaintiff and defendant, along with other merchants in San Bernardino, were the victims of a bogus check passing scam perpetrated by El Faro Construction Co. (El Faro).

The scam worked like this. El Faro opened a checking account with defendant. Over a period of time, there were issued to purported employees of El Faro what appeared to be bona fide payroll checks. These checks were periodically presented for cashing at plaintiff’s place of business. On these occasions, telephone calls were made from plaintiff’s business to defendant to verify that there were funds on deposit in the El Faro account to cover the checks. After this pattern of regularity had been established, El Faro struck. On a Friday, El Faro checks aggregating $7,353.37 were presented for cashing at plaintiff’s business. Telephone calls to defendant confirmed that these checks would clear. The checks were cashed and, later that day, these same checks were deposited by plaintiff in her account with defendant. However, just before its 6 p.m. closing, someone appeared at defendant bank and succeeded in withdrawing all funds from the El Faro account.

[216]

The following Monday was a holiday. On Tuesday, when defendant discovered what had happened, it debited plaintiff’s account pro tanto and returned the checks. Thereafter, defendant refused plaintiff’s demand that her account be credited in the amount of $7,353.37, the aggregate amount of the El Faro checks, as noted, which she had cashed and then deposited in her account with defendant.

The resulting dispute led plaintiff to retain Attorneys Brunick and Pyle to commence litigation against defendant. Such suit was eventually filed against defendant about a year after the scam had been perpetrated and was only the first of

three

separate lawsuits which figure in this appeal. In the first of these three actions, plaintiff alleged her damages to be $7,353.37, nothing more, and prayed for their recovery.