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Meri Fayroyan-Mezhlumyan v. Wells Fargo Bank

December 21, 2011

MERI FAYROYAN-MEZHLUMYAN, PLAINTIFF AND APPELLANT,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, DEFENDANT AND RESPONDENT.



APPEAL from orders of the Superior Court of Los Angeles County. Elizabeth A. White, Judge. Affirmed in part and reversed in part. (Los Angeles County Super. Ct. No. BC397008)

The opinion of the court was delivered by: Chaney, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Meri Fayroyan-Mezhlumyan (Appellant) appeals from an order granting Wells Fargo Bank, N.A.'s motion to strike portions of her second amended complaint, sustaining without leave to amend Wells Fargo's demurrer to the remainder of the second amended complaint on statute of limitations grounds, and dismissing Wells Fargo from the action. As explained below, we affirm in part and reverse in part.

In the published portion of the opinion, we hold that the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (c), for an action "by a depositor against a bank for the payment of a forged or raised check" is not applicable to this case. Appellant's action relates to Wells Fargo's alleged payment of a forged check drawn on her home equity line of credit. With respect to this account, Appellant is a not a "depositor." The trial court erred when it sustained Wells Fargo's demurrer to three causes of action in the second amended complaint, based on its conclusion that these causes of action are barred by the statute of limitations in Code of Civil Procedure section 340, subdivision (c).

BACKGROUND

On August 26, 2008, Appellant filed this action against Wells Fargo.*fn2 On August 5, 2009, she filed a first amended complaint, asserting one cause of action against Wells Fargo for identity theft under Civil Code section 1798.93. This statute provides, in pertinent part, "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." (Civ. Code, §1798.93, subd. (a).)

Appellant alleged that someone forged her signature on two checks totaling $99,000 drawn on her home equity line of credit at Wells Fargo. The checks were made out to "Lord of the Rings Jewelry," one dated April 1, 2007 in the amount of $45,000, and one dated April 4, 2007 for $54,000. The checks were cashed. Appellant alleged that she sent Wells Fargo written notice that the checks had been "lost and/or stolen along with her identity" and that "her signature [on the checks] was forged." She asserted that Wells Fargo "failed to diligently investigate [her] notification of identity theft" and "continue[d] to pursue its claim against" her.

Pursuant to Civil Code section 1798.93, subdivision (c), Appellant sought (1) a declaration that she is not obligated to Wells Fargo for the $99,000 drawn against her home equity line of credit, (2) an injunction restraining Wells Fargo from collecting or attempting to collect on the claim, and (3) damages, attorney fees, costs, a civil penalty and any equitable relief the court deems appropriate against Wells Fargo.

In the first amended complaint, Appellant also made claims against Lord of the Rings Jewelry (LORJ).*fn3 In the second cause of action in her first amended complaint, Appellant alleged that, "On or about April 3rd and 5th, 2007 [LORJ] and DOES 1 through 10 knowingly and willingly conspired and agreed among themselves to defraud, embezzle, and take $99,000.00 from [Appellant] by cashing the two checks drawn on [Appellant]'s home equity line of credit." Appellant alleged that she had not written or authorized the checks and had not conducted business with LORJ.

Appellant also asserted that LORJ had committed general negligence and fraud. She alleged that LORJ "knew or should have known that the two checks were illegally obtained and written." She also alleged that LORJ "defrauded [her] in the amount of $99,000.00 by depositing and/or cashing two checks drawn on [Appellant]'s home equity line of credit without [Appellant]'s knowledge and permission . . . ." Appellant sought "recovery of all [her] damages, attorney's fees and costs and exemplary damage [sic] from [LORJ]." Appellant did not include Wells Fargo in the claims of conspiracy, general negligence and fraud made in the first amended complaint.

Wells Fargo filed a demurrer to the first amended complaint on grounds that the action was barred by the statute of limitations. Wells Fargo argued that the statute of limitations applicable to Appellant's cause of action against Wells Fargo is the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (c), which governs actions "by a depositor against a bank for the payment of a forged or raised check." (Code Civ. Proc., § 340, subd. (c).) According to the first amended complaint, the checks were cashed on April 3 and 5, 2007. Wells Fargo argued that that the statute of limitations began to run on May 5, 2007 at the latest because, within 30 days after the checks were cashed, Appellant would have received a statement showing that the checks had posted to her account. Appellant filed this action against Wells Fargo on August 26, 2008, more than a year later. Wells Fargo argued that Appellant could not avoid the bar of the one-year statute of limitations by labeling her cause of action against Wells Fargo as one for "identity theft" under Civil Code section 1798.93, and attempting to apply the four-year statute of limitations for identity theft claims set forth in Civil Code section 1798.96.

Appellant filed an opposition to the demurrer, arguing that the four-year statute of limitations in Civil Code section 1798.96 applied to her identity theft cause of action against Wells Fargo. Appellant did not dispute Wells Fargo's contention that she became aware of the alleged wrongful conduct in May 2007.

On December 31, 2009, the trial court heard oral argument on Wells Fargo's demurrer to the first amended complaint. The court concluded that the statute of limitations applicable to Appellant's cause of action against Wells Fargo is the one-year statute of limitations in Code of Civil Procedure section 340, subdivision (c), and found that Appellant's claim against Wells Fargo, as pleaded in the first amended complaint, was barred by that statute of limitations. The court also found, however, that "it is conceivable that [Appellant] may plead facts that may toll the statute of limitations." Accordingly, the court sustained the demurrer with leave to amend.

In its written tentative ruling, which the court adopted as the final ruling, the court explained: "The delayed discovery rule prevents accrual of a cause of action for statute of limitations purposes until the plaintiff discovers or should have discovered the negligent cause of his or her injury. It is noted, however, that [Appellant] states in her Opposition that she 'became aware of the fraud on or around May of 2007.' [Citation.] If this is true, then [Appellant]'s claim would clearly be time barred by CCP § 340(c), thereby deeming leave to amend fruitless. However, in the interest of justice, the Court would sustain with leave to amend to provide plaintiff an opportunity to attempt to cure the defect."

At oral argument, counsel for Wells Fargo informed the trial court that Appellant's counsel had indicated that Appellant intended to amend the complaint to "add a different theory, as opposed to merely asserting the same theory, just with a different set of facts." The court stated that it was only granting Appellant leave to amend "to plead around the [statute of limitations] defect." The court instructed Appellant that if she wanted to ...


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