APPEAL from the Superior Court of San Bernardino County. David A. Williams, Judge. Affirmed. (Super.Ct.No. CIVRS906198).
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PUBLICATION
Appellant Brian D. Peters is the victim of a Nigerian-style email scam. He agreed that his corporation would receive money supposedly owed to a gentleman in Malaysia and would then pay that money out as the gentleman directed in exchange for a 15 percent fee. His corporation received checks totaling $808,988.90 and deposited them in an account with respondent Chino Commercial Bank, N.A. (the Bank). It then had the Bank pay out $468,000. Thereafter, all of the checks that had been deposited bounced.
The Bank filed this action to recover the resulting overdraft. It promptly obtained a right to attach order against Peters. Peters appeals from the right to attach order. He argues that the Bank had the burden of proving that it did not act negligently and that it failed to carry this burden.
We will hold that, under the California Uniform Commercial Code, Peters had the burden of proving that the Bank did act negligently, and he failed to do so. Hence, we will affirm.
Faux Themes Inc. (Faux or the corporation) is a corporation in the construction business. In March 2008, it opened a checking account with the Bank. Both Peters and Marilyn Charlnoes were authorized signers on the account. Peters was the president of the corporation; Charlnoes was the treasurer of the corporation.
The written account agreement defined "you" and "your" as "the account holder(s) and anyone else with the authority to deposit, withdraw, or exercise control over the funds in the account." It then provided: "Each of you also agrees to be jointly and severally (individually) liable for any account shortage resulting from charges or overdrafts . . . ."
Until April 2009, the average monthly balance in the account ranged from $3,000 to $5,000; the deposits in any one month never exceeded about $10,000.
In March 2009, Peters received an email supposedly from Husaine Norman, a citizen of Malaysia. Norman said that certain third parties in the United States and Canada owed him money; however, they were insisting that "they can not transfer the funds to any bank account outside America continent due to their new company policy." He asked Peters to "assist me in receiving the funds and forward to me." He offered to pay Peters 12 percent of the money. Peters agreed (apparently after negotiating an increase of his fee to 15 percent).
On April 30, 2009, Faux received a check for $178,000; Peters had Charlnoes deposit it. On May 8, 2009, the Bank confirmed that the check had cleared. Charlnoes then had the Bank wire $80,000 to a bank in Hong Kong.
Also on May 8, 2009, Faux received a second check, for $373,988.90; Peters had ...