May v. Bank of America CA4/3

Filed 4/2/13 May v. Bank of America CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

DONNA MAY et al.,

Plaintiffs and Appellants, G046893

v. (Super. Ct. No. 30-2011-00484717)

BANK OF AMERICA, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Jeffrey S. Benice for Plaintiffs and Appellants. Severson & Werson, Jan T. Chilton and Jonathan D. Dykstra for Defendant and Respondent.

INTRODUTION Appellants Donna May and Shellie May appeal from a judgment of dismissal in favor of Bank of America (BofA) after the trial court sustained BofA’s demurrer without leave to amend. Appellants accused BofA of negligence after they were defrauded in a real estate scheme. We affirm. BofA owed no duty of care to appellants, who were not BofA customers. The special circumstances that might create a duty of care are not present here. The trial court properly sustained BofA’s demurrer and dismissed it from the case. FACTS According to the first amended complaint, the only document other than the notice of appeal they included in their appendix, appellants fell victim to a real estate scam perpetrated by defendants other than BofA. These defendants persuaded appellants to wire $130,000 to a BofA escrow account in the name of Golden Gate Escrow as the purchase price of a house in San Bernardino. Golden Gate Escrow allegedly does not exist, and the people behind the scam absconded with appellants’ money. Appellants sued 14 defendants, including BofA. The other defendants were sued for several causes of action based on fraud. BofA was sued only for negligence. The negligence theory was that BofA should have checked out Golden Gate Escrow’s legitimacy, and its failure to do so breached a duty of care to appellants. BofA evidently demurred to the first amended complaint.1 The trial court sustained BofA’s demurrer and dismissed BofA from the lawsuit.2 The grounds for dismissal were that appellants were not BofA’s customers and BofA therefore owed no duty to them.