Global Swift Funding v. Bank of America CA6

Filed 12/11/13 Global Swift Funding v. Bank of America CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

GLOBAL SWIFT FUNDING LLC, H038712 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 109CV145993)

v.

BANK OF AMERICA CORPORATION,

Defendant and Respondent.

Plaintiff Global Swift Funding LLC appeals from a judgment entered after a grant of summary judgment to respondent Bank of America Corporation. Plaintiff brought this action when respondent released funds to Net Courier Services, Inc. (Net Courier), the defendant in plaintiff's underlying lawsuit, contrary to a stipulated order. On appeal, plaintiff challenges the trial court's conclusion that plaintiff suffered no damages when respondent mistakenly released those funds because the error was subsequently remedied to plaintiff's advantage. We find no error and therefore must affirm the judgment. Background In 2008 plaintiff pursued an action against Net Courier, which culminated in a 2009 stipulated judgment against Net Courier for $477,701.88, including costs. The judgment was to be paid in specified installments from December 15, 2008 until satisfied in full. An order in December 2008, also entered by stipulation, directed respondent's branch in Half Moon Bay and another branch in San Jose to release the funds in Net

Courier's accounts, which totaled $168,037.92, to the sheriff of each county. The sheriff was then to distribute half of the proceeds of each levied amount to Net Courier and half to plaintiff. Thus, plaintiff was to receive $84,018.96 from the disbursement. At the Half Moon Bay branch, however, a bank employee released the entire $68,315.20 in that account directly to Net Courier instead of to the sheriff of San Mateo County. The bank employee's manager, upon discovering the error at the end of December, overdrew the account, hoping that Net Courier would replace the funds, but it did not; instead, it transferred the money to accounts outside respondent's reach. To remedy the deficiency, plaintiff obtained an ex parte order on January 12, 2009, directing the release of all the remaining funds at either branch to the sheriff and then to plaintiff. Respondent then issued two checks to the Santa Clara County sheriff from the San Jose branch: one for $19, 396.73 and one for $80,325.99. Plaintiff thus recovered $99,722.72 – more than the amount initially ordered. By January 30, 2009, respondent's management decided to "wait and see what happens." Thus, no further action was taken until mid-April of 2009, when plaintiff's attorney contacted respondent. At that point respondent did not release any more money to plaintiff because it had already disbursed the remaining funds pursuant to the court's second (January 12, 2009) order. Plaintiff initiated this action on June 29, 2009, seeking "the approximate amount of $99,000" for respondent's "failure to maintain control over the attached funds." Plaintiff did not assert a specific cause of action, but only alleged the violation of Code of Civil Procedure section 488.455, subdivision (c), in failing to maintain control over the attached funds.1