Case Name:   Tevel v. Wells Fargo Bank, N.A., et al.

Case No.:       1-14-CV-260581

Defendants HSBC Bank (USA), N.A. (“HSBC”), Wells Fargo Bank, N.A. (“Wells Fargo”), and American Express Bank, FSB (“AMEX”) (collectively, “Defendants”) each separately demur to the Second Amended Complaint (“SAC”) of plaintiff Avshalom Tevel (“Plaintiff”).

Wells Fargo’s request for judicial notice is GRANTED.  (Evid. Code, § 452, subd. (d).)

AMEX’s request for judicial notice is GRANTED.  (Evid. Code, § 452, subd. (d).)

Defendants’ demurrers on the grounds of uncertainty are OVERRULED.  The SAC is not so unclear that Defendants cannot respond and further clarification can be obtained through the discovery process.

The SAC sets forth four causes of action: (1) wire transfer reversal; (2) breach of contract; (3) fraud; and (4) consumer rights violation.  As pointed out by Defendants, there are no such causes of action as “wire transfer reversal” and “consumer rights violation.”  For these causes of action, Plaintiff cites to the Uniform Commercial Code Article 4A, adopted as Commercial Code section 11211, which does not provide for a cause of action, but simply states the conditions under which cancellation or amendment of a payment order is both effective and rightful.  (See official comments to Com. Code, § 11211.)

With regard to the second cause of action for breach of contract, Plaintiff does not allege the existence of any contract with HSBC or Wells Fargo.  Plaintiff quotes from a portion of a “deposit account agreement” with AMEX, but fails to allege facts that would support a breach of contract cause of action under the quoted portions.  Plaintiff only alleges factual and legal conclusions.

As for the third cause of action for fraud, such a cause of action must by pleaded with specificity.  (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th at 153, 157.)  Plaintiff’s allegations do not meet this standard.  For example, Plaintiff has not alleged what specific misrepresentations were made by Defendants and who made those misrepresentations.

In sum, for the reasons discussed above, it is unnecessary for the Court to address AMEX’s collateral estoppel argument and Defendants’ demurrers are SUSTAINED.  Plaintiff has had several chances to correct the defects in the pleadings and has not stated how the defects can be cured.  Accordingly, the demurrers are SUSTAINED WITHOUT LEAVE TO AMEND.