Case Number: BC538711 Hearing Date: June 10, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
________________________________________
Hearing Date: Tuesday, June 10, 2014
Calendar No: 8
Case Name: Wussler v. J.P. Morgan Securities, et al.
Case No.: BC538711
Motion: Demurrer
Moving Party: Defendants JPMorgan Chase Bank, N.A. and JPMorgan Securities
Opposing Party: Plaintiff Kathy Wussler
Notice: Improperly served opposition

Tentative Ruling: Demurrer is sustained with 15 days leave to amend.
________________________________________

On 3/7/14, Plaintiff Kathy Wusslaer filed this action against Defendants J.P. Morgan Securities and J.P. Morgan Chase Bank arising out of alleged unauthorized and fraudulent charges to her debit card. Plaintiff asserts a single cause of action for violation of the Identity Theft Act (Civil Code § 1798.92 et seq.).

Factual Allegations of the Complaint –
On 7/30/13, Plaintiff discovered that she did not have her debit card. ¶ 7. On 8/1/13, Plaintiff alerted Defendants that she lost her card and ordered a new one. ¶ 8. On 11/24/13, Plaintiff discovered that an unknown person was using her debit card and called her personal banker at Defendants, Lorenzo Esparza, concerning this issue (¶ 9): on 12/3/13, Plaintiff received a security alert stating that her debit card had been compromised and that Defendants would be cancelling her debit card and issuing a new one. ¶ 10. On 12/13/13, Plaintiff filed a police report (¶ 11); and on 12/16/13, Plaintiff faxed a letter and a copy of the police report to Defendants (¶ 12).

Plaintiff’s account statements for the periods of 7/24/13 to 11/25/13 showed approximately $8,865.45 in fraudulent charges. ¶¶ 13-16. On 1/10/14, Plaintiff received a letter from Dawud Thompson from Defendants’ Chicago office advising that Defendants have closed two other accounts. ¶ 17.

Demurrer –
Defendants demur to the Complaint, arguing that Plaintiff fails to allege facts to support a claim against Defendants under the Identity Theft Act.

1. Improperly Served Opposition
Defendants correctly note that Plaintiff’s opposition was improperly served by mail on 5/28/14, in violation of CCP § 1005(c). See Watson Decl. ¶ 4. However, the Court finds no prejudice for this violation because Defendants timely filed a substantive reply. Nevertheless, Plaintiff is admonished to comply with the law and motion requirements: in the future, the Court may decline to consider improperly served papers.

2. Request for Judicial Notice
In connection with the demurrer, Defendants request judicial notice of the legislative history of the Identity Theft Act: the RJN is granted.

3. Identity Theft Act
The Identity Theft Act provides: “A person may bring an action against a claimant to establish that the person is a victim of identity theft in connection with the claimant’s claim against that person.” Civil Code § 1798.93(a). “Claimant” is defined as “a person who has or purports to have a claim for money or an interest in property in connection with a transaction procured through identity theft.” Civil Code § 1798.92(a).

Plaintiff fails to allege facts to support that Defendants fall within the definition of “claimant” for purposes of the Identity Theft Act: no facts are alleged that Defendants have a present claim for money against Plaintiff or an interest in a debt owed by Plaintiff. That Plaintiff is alleged to be a victim of identity theft (see Civil Code § 1798.93(c); Penal Code § 530.5) is insufficient to allege an Identity Theft Act claim against Defendants. Notably, the Identity Theft Act is intended to address collection efforts against a victim of identity theft when the victim gave written notice to the creditor of identity theft (see RJN Exs. 1-2): no such collection efforts are alleged as to Defendants.

In Satey v. JPMorgan Chase & Co. (9th Cir. 2008) 521 F.3d 1087, 1092, the Ninth Circuit Court of Appeals noted that the term “claimant” “reflects a present tense interest in a debt or attempt to collect.” Plaintiff correctly notes that the facts and holding of Satey are not applicable here because it involved a disputed credit card debt (alleged to be fraudulent by the plaintiff) where the issuing company attempted to seek payment from the plaintiff and plaintiff’s account was subsequently purchased by another entity prior to the plaintiff’s Identity Theft Act claim being filed (id. at 1089-90): the Ninth Circuit held that the issuing company was not a “claimant” because it no longer had a claim or retained an interest at the time the suit was filed (id. at 1093). However, Satey provides support for how “claimant” is defined under the Identity Theft Act.

4. Ruling
Therefore, the demurrer is sustained. Plaintiff has requested leave to amend. Because this is the first challenge to the pleadings, leave to amend is granted.