Demurrer by Defendant Bank of America to the First Amended Complaint of Plaintiff Vahe Tashjian

With respect to the first cause of action for breach of contract, Plaintiff alleges that Defendant breached a written contract by giving Plaintiff’s wife, without his consent, unfettered and unauthorized access to his financial accounts. (See First Amended Complaint (“FAC”) at ¶¶ 14, 15, and 18.) On demurrer, Defendant argues that Plaintiff fails to allege the terms of any written contract or attach a copy of the agreement to the FAC.

“To allege a cause of action for breach of contract, a plaintiff must allege (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 921.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

Here, Plaintiff fails to allege the terms of any written contract with Defendant in the pleading or attach a copy of the agreement to the FAC. In opposition, Plaintiff argues that discovery will yield all of the necessary contracts and agreements to support the first cause of action. (See OPP at p. 3.) However, before the parties can engage in civil discovery, Plaintiff must state a valid cause of action for breach of contract to overcome demurrer.

Defendant’s demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

With respect to the second cause of action for violation of Commercial Code § 4101, et seq., Plaintiff alleges that Defendant’s unauthorized disclosure to Plaintiff’s wife of his account and financial information violated Commercial Code section 4103. (See FAC at ¶ 22.) However, Division 4 of the Commercial Code contains statutory provisions governing the relationship between banks and customers with respect to checks. (See Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1058.) In particular, Division 4 (§ 4101 et seq.) is entitled “Bank Deposits and Collections” and “provides uniform rules governing the (1) collection by banks of checks and other instruments for the payment of money and (2) relationship of banks with their depositors in connection with the collection and payment of items.” (Id. at pp. 1058-1059 [citation omitted].)

Here, Plaintiff’s claim is based on Defendant’s alleged failure to prevent the disclosure of confidential information to Plaintiff’s wife. The second cause of action does not allege facts regarding Defendant’s collection of checks and other instruments for the payment of money nor does it pertain to the relationship between Defendant and Plaintiff in connection with the collection and payment of items.

Therefore, Defendant’s demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

With respect to the third cause of action for violation of Financial Code § 4050 et seq., Plaintiff alleges that Defendant violated section 4052.5 by disclosing Plaintiff’s financial information to his wife. (See FAC at ¶ 27.) Section 4052.5 provides that “a financial institution shall not sell, share, transfer, or otherwise disclose nonpublic personal information to or with any nonaffiliated third parties without the explicit prior consent of the consumer to whom the nonpublic personal information relates.”

As the moving papers point out, Financial Code section 4052, subdivision (e) defines “nonaffiliated third parties” as “any entity that is not an affiliate of, or related by common ownership or affiliated by corporate control with, the financial institution.” (See Fin. Code § 4052, subd. (e).) The court notes that the word “entity” is not separately defined anywhere within section 4052. Thus, it is not clear from the face of statute if the term “entity” was intended to refer to individuals along with businesses or financial institutions. However, other portions of section 4052 specifically refer to “individuals.” For example, with respect to “personally identifiable financial information,” the code mentions that “an individual is or has been a consumer” of a financial institution. (Id. at § 4052, subd. (b)(3).) Similarly, the Legislature has defined “consumer” as “an individual resident of this state or that individual’s representative. (Id. at § 4052, subd. (f).) Therefore, had the Legislature intended to identify individuals as “nonaffiliated third parties,” it could have done so. Since “nonaffiliated third parties” refers only to entities, the court finds that Plaintiff fails to state a cause of action.

Accordingly, Defendant’s demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim. (See Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020 [where the nature of plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result].)

Defendants’ demurrer to the fourth cause of action for unfair business practices is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. “Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1157.) Here, the UCL cause of action is based on Plaintiff’s prior claims in the FAC. (See FAC at ¶ 31.) Since the court has sustained the demurrer as to those claims, there is no cause of action for unfair business practices. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the antecedent substantive causes of action].)

With respect to the fifth cause of action for constructive fraud, Plaintiff alleges that Defendant’s unauthorized disclosure of his confidential financial information to his wife violated fiduciary duties owed to Plaintiff and constituted constructive fraud. (See FAC at ¶ 39.) Constructive fraud arises on a breach of a duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by latter to his prejudice. (Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 548.) The elements for a cause of action for constructive fraud are fiduciary relationship, nondisclosure, reliance, and resulting injury. (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 517, fn. 14.) Here, Plaintiff fails to allege facts giving rise to a confidential or fiduciary relationship with Defendant to state a claim for constructive fraud. (See Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562 [constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship].)

Therefore, Defendant’s demurrer to the fifth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

With respect to the sixth cause of action for violation of California Constitution Article I, Section 1, Defendant argues that Plaintiff’s privacy claim is barred by the one-year statute of limitations. (See Lauter v. Anoufrieva (C.D. Cal. 2008) 642 F.Supp.2d 1060, 1104 [citing Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 313].) “Statute of limitations is the collective term applied to acts or parts of acts that prescribe the periods beyond which a plaintiff may not bring a cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) “When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.” (Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.)

Here, Plaintiff alleges that, in October 2010, his wife telephoned Defendant in an attempt to gather sensitive and private information about him. (See FAC at ¶ 7.) However, it is not clear from the FAC when Defendant allegedly disclosed Plaintiff’s financial information to Plaintiff’s wife. The FAC is silent as to when the alleged unlawful disclosure of Plaintiff’s personal and private financial information took place. Thus, the court is unable to decide the statute of limitations defense on demurrer. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [in order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred].)

Accordingly, Defendant’s demurrer to the sixth cause of action on the ground that it fails to state a claim is OVERRULED.