Mason v. Shapro

Opinion

DAVID, J. pro tem.* Assertedly, Jacob Shemano engaged in the factoring business as National Consumers Credit Plan and Gary Financial Corporation. Appellant loaned some $60,000 to Shemano for the same. Demand was made upon him for payment, but he is insolvent. Appellant [791]brought this action against Golden Gate National Bank, Shemano, and the six other respondents, asserting that he was a depositor in the Golden Gate National Bank, of which Shemano was also president and its chief executive officer; that Shemano made false and fraudulent representations to induce the loans, to the effect that the Golden Gate National Bank was his bank, that the bank owned the National Consumers Credit Plan and was liable for its debts.

Individual liability was claimed against the other respondents, the individual directors, on the ground that they well knew or should have known in the exercise of reasonable care and prudence that Shemano was using his official capacity to borrow such money for his private gain, but nevertheless permitted him to remain as president and thus enabled him to defraud appellant.

Following their answers to the complaint, the six directors defendant, other than Shemano, moved for and were given summary judgments. The judgments must be affirmed.

Although a national bank is concerned, the state courts have jurisdiction, by virtue of the provisions of the National Bank Act. (Most v. First Nat. Bank of San Diego (1966) 246 Cal.App.2d 425, 427 [54 Cal.Rptr. 669].) No breach of any duty of a director is alleged (12 U. S. C. § 93), as it is not alleged they knowingly violated or permitted any violation of that act. Appellant’s only personal relationship with the bank was as a depositor, and no duty to him as such was established by the pleading. The six directors by their affidavits disclaimed all knowledge of the personal dealings of Shemano and appellant. Appellant filed no affidavits at all in opposition to those presented upon the motion under Code of Civil Procedure, section 437c. He concedes that knowledge is essential to any liability under the federal law.

Appellant turns to Bowerman v. Hamner (1918) 250 U.S. 504, 511-512 [63 L.Ed. 1113, 1118-1119, 39 S.Ct. 549], as establishing a general common law duty of directors to use that degree of care “which ordinarily prudent and diligent men would exercise under similar circumstances,” in relation to creditors, depositors and stockholders.