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Filed 5/25/16 Dagdagan v. Bank of America CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.

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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.