Case Name: Adeline Cisneroz v. Valley Credit Union, et al.

Case No.: 1-13-CV-255237

Demurrer by Defendant Bank of America to the First Amended Complaint of Plaintiff Adeline Cisneroz

The Bank’s demurrer to the first cause of action for breach of contract is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

“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 alleges that she entered into a contract with the Bank for the deposit of her money and had certain accounts pursuant to that contract. (See First Amended Complaint [“FAC”] at ¶ 10.) However, Plaintiff fails to allege whether her contract with the Bank was oral, written, or implied by conduct. (See Code Civ. Proc. § 430.10, subd. (g); see also Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 [the complaint must indicate on its face whether the contract is written, oral, or implied by conduct].) To the extent that the first cause of action is based on a written contract, Plaintiff fails to allege the terms of such an agreement or attach it to the pleading. Finally, Plaintiff does not allege whether she performed under the contract or that she was excused from performing under the agreement. (See Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614 [appellate court sustained demurrer to complaint for breach of forbearance agreement where plaintiffs failed to allege that they had performed, or that they were excused from performing under the agreement].)

The Bank’s demurrer to the second cause of action for financial elder abuse is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

“Financial abuse of an elder adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315 [internal quotation marks omitted]; Welf. & Inst. Code § 15610.30, subd. (a).)

Here, Plaintiff’s elder abuse claim is based on the same facts as her breach of contract cause of action. (See FAC at ¶ 18.) Thus, since the court has sustained the demurrer to the first cause of action, there are no facts to support a claim for financial elder abuse. Furthermore, Plaintiff fails to allege any facts showing that the Bank took, secreted or appropriated any funds to state a valid claim. Also, a claim for financial elder abuse applies only to a person who is 65 years of age or older. (See Welf. & Inst. Code § 15610.27.) Since Plaintiff alleges that she is 32 years old, she is not an “elder” under the statute. (See FAC at ¶ 1.)

Bank’s Motion to Strike Portions of the FAC

Given the court’s rulings on demurrer, Bank’s motion to strike is MOOT.

Demurrer to the FAC by Defendant Bankers Life and Casualty

Given the Notice of Settlement filed June 27, 2014, the demurrer to the first cause of action for breach of contract by defendant Bankers Life and Casualty is off calendar.

A dismissal review as to defendant Bankers Life and Casualty is set for September 25, 2014, at 10:00 a.m. in Department 2.