Mel-Jen, Inc. v. Bank of America CA2/7

Filed 10/27/14 Mel-Jen, Inc. v. Bank of America CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MEL-JEN, INC., B252165

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. SC119922) v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Allan J. Goodman, Judge. Affirmed.

Burton V. McCullough for Plaintiff and Appellant.

Jan T. Chilton for Defendant and Respondent.

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Appellant Mel-Jen, Inc. doing business as Wally’s Wine and Spirits (Mel-Jen) appeals from the judgment of dismissal entered upon the trial court’s order sustaining the respondent Bank of America, N.A.’s (BofA) demurrer without leave to amend Mel-Jen’s complaint. Before this court, Mel-Jen asserts that the trial court erred in dismissing its sole claim of negligence. As we shall explain, the court did not err by sustaining BofA’s demurrer and dismissing Mel-Jen’s negligence claim. Moreover, it does not appear that affording Mel-Jen an opportunity to amend could cure the defects in its cause of action against BofA. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Mel-Jen’s First Amended Complaint alleges that Mel-Jen is a California corporation doing business as Wally’s Wine and Spirits with its principal location in Los Angeles, California. It further alleges that Adilia Bermudez, Mel-Jen’s employee and accounting controller, forged approximately 185 handwritten checks totaling $4,692,376.75 on Mel-Jen’s checking account between August 2009 and June 2012. Bermudez stole checks for Mel-Jen’s checking account and handwrote them payable to “CASH” forging the signature of Steven A. Wallace, the president and CEO of Mel-Jen and an authorized signer on the account. Bermudez did not have signing authority on the account. Bermudez placed notations in the left hand corner of many of the checks reading “reimb.,” “exp. reimb.,” “wine purch.,” and “wine purch. reimb.” Bermudez, and occasionally her husband, would bring the checks into the Canyon Plaza Branch of BofA in Sun Valley, California, endorse the checks, and have them deposited into Bermudez and her husband’s personal joint checking account. Bermudez also had her monthly salary directly deposited into her joint checking account, and had done so for years prior to creating the forged checks. In addition to forging checks from Mel-Jen’s corporate checking account, Bermudez also forged two checks on president and CEO Steven A. Wallace’s personal checking account, making both checks payable to the order of “CASH” and writing the notation “loan” in the memo line on the checks. These two checks were endorsed by Bermudez’s husband and deposited into their joint checking account at BofA. BofA