The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING MOTION TO DISMISS IN PART AND GRANTING IN PART [Motion filed on 2/3/11]
Presently before the court is Defendant Bank of America Corporation ("the bank")'s Motion to Dismiss. Having reviewed the parties' moving papers and heard oral argument, the court denies the motion in part, grants in part, and adopts the following order.
Plaintiff Elham Shafiee ("Elham") is the principal of Melika, Inc. ("Melika"), which operates an automobile dealership. (First Amended Complaint ("FAC") ¶ 1.) In 2000, Melika opened a checking account with Bank of America. (FAC ¶ 7.) Elham was the only individual authorized to write checks drawn upon Melika's checking account. (FAC ¶ 8.)
On August 22, 2007, Elham discovered that Mahmoud Shafiee ("Mahmoud") had written a $100,000 check on the Melika account. Elham contacted the bank to inquire about the unauthorized check. (FAC ¶ 17.) The bank informed Elham that Mahmoud's signature was on the account's signature card, and that Mahmoud was authorized to make transactions upon the account. (Id.) (FAC ¶ 9.) Between August 21, 2001 and August 28, 2007, the bank paid four checks written by Mahmoud on the Melika account, totaling $277,000. (FAC ¶ 10.)
Also during August 2007, the same month that he wrote four checks drawn upon the Melika account, Mahmoud intercepted at least sixteen checks payable to Melika, endorsed them, and deposited them with the bank into his own separate accounts. (FAC ¶¶ 38-39.) The endorsed checks totaled approximately $215,000. (FAC ¶ 38.) Elham did not become aware of the diverted checks until August 9, 2010. (FAC ¶ 43.)
After informing Elham on August 22, 2007 that Mahmoud had access to the Melika account, the bank reiterated that fact "[f]rom time to time thereafter" until May 2010. (FAC ¶ 18.) In May 2010, however, the bank informed Elham that Mahmoud was not a signatory on the Melika account. (FAC ¶ 19.) Plaintiffs filed a complaint against the bank in California state court on August 27, 2010, and amended the complaint on December 20. (Opp. at 4; Dkt. No. 1). The First Amended Complaint alleges causes of action for (1) Unauthorized Drawer's Signature, (2) Breach of Contract, (3) Failure to Honor Stop Payment Order, (4) Unauthorized Endorsement -Conversion, (5) Negligence, (6) Fraud, and (7) Civil Conspiracy.
The bank removed to this court on January 27, 2011, and now moves to dismiss all claims.*fn1
A complaint will survive a motion to dismiss when it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 1950. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 1949 (citations and internal quotation marks omitted).
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 1950. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly, 550 U.S. at 555-56. "Determining whether a complaint states a plausible claim for relief" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.
As an initial matter, the court must address the bank's contention, upon which several of the bank's arguments depend, that this is a case about forgery. See, e.g. Mot. at 5 n.5 ("A checked lacking a required signature is a forged check for these purposes.") The court disagrees. A forgery is a "material alteration of a writing with intent to defraud anyone, so as to make the writing appear to be different from what it was originally intended to be." Union Tool Co. v. Merchants' Nat'l Bank of Los Angeles, 192 Cal. 40, 52 (1923). "Unauthorized signature, in contrast, "means a signature made without actual, implied, or apparent authority. The term includes a forgery." Cal. Com. Code § 1201(41). Contrary to the bank's assertion, the difference between a forgery and an unauthorized signature is not a "hyper-technical" one. (Reply at 7.) A forgery is made without authority, and therefore qualifies as a subset of "unauthorized signature." Cal. Com. Code § 1201(41). This does not mean, however, that all unauthorized signatures, however, are material alterations of writing made with the intent to defraud. As is evident from the facts of this case, the realm of unauthorized signatures made "without actual, implied, or apparent authority" is far more expansive ...