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Greene v. Bank of America

California Court of Appeals, Second District, Fifth Division

May 12, 2015

GARY GREENE, Plaintiff and Appellant,
BANK OF AMERICA et al., Defendants and Respondents.

[As modified May 28, 2015.].

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC478655 Frank Johnson, Judge.

Page 923

[Copyrighted Material Omitted]

Page 924


Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte, for Plaintiff and Appellant.

Severson & Werson, Jan T. Chilton and Andrew S. Elliott, for Defendants and Respondents.

Page 925




This matter, before us for the second time, concerns plaintiff and appellant Gary Greene’s malicious prosecution action against defendants and respondents Bank of America (Bank) and its employee Jenny Casasola.[1] In his action, plaintiff alleged that he went to a branch of the Bank to cash two checks he received from State Farm Insurance in settlement of a claim. When the Bank refused to cash the checks, a dispute arose between plaintiff and Bank employees. Casasola, the Bank’s branch manager, called the police and reported that plaintiff had threatened to blow up the Bank’s branch. Plaintiff was arrested and charged with making a criminal threat in violation of Penal Code section 422. After a jury trial, plaintiff was acquitted.

In our prior opinion, we reversed a judgment in favor of defendants that was entered after their successful Code of Civil Procedure section 426.16 motion to strike plaintiff’s action (anti-SLAPP[2] motion). On remand, defendants brought a summary judgment motion on the ground of the collateral estoppel effect of the magistrate’s finding of probable cause based on a credibility determination at plaintiff’s preliminary hearing in his criminal proceeding. Contrary to plaintiff’s contention in connection with defendants’ anti-SLAPP motion, we did not address the issue of collateral estoppel expressly or by implication in our prior opinion. Defendants had not raised that issue. In affirming the judgment, we hold that the doctrine of law of the case does not preclude consideration of the application of the doctrine of collateral estoppel and that under the doctrine of collateral estoppel, the determination of probable cause by the magistrate in plaintiff’s criminal proceeding, when the issue of Casasola’s credibility had been raised before the magistrate, defeats, as a matter of law, plaintiff’s malicious prosecution claim.

Page 926


I. The Anti-SLAPP Motion Appeal

In our prior opinion, we set forth the evidence presented in connection with defendants’ anti-SLAPP motion as follows: “Plaintiff’s trip to the Bank began with a teller, who told him that she could cash the smaller of his two checks, which was for $40, but not the larger check, which was for $7, 250.97. For that, she needed authorization from her supervisor, Yahaira Reyes. Reyes either could not or would not cash the larger check. Plaintiff then talked to the branch manager, Casasola. It was Casasola who called the police and said that plaintiff was threatening to blow up the Bank. Plaintiff was outside the Bank, smoking a cigarette and waiting for his checks to be verified, when he was arrested. That much, plaintiff and defendants agree on.

“Defendants submitted evidence with their motion to strike, and plaintiff submitted evidence with his response to that motion; their accounts of the events differ.

“Plaintiff declared that on February 25, 2010, he picked up two checks from the Woodland Hills office of his car insurer, State Farm. Both were on State Farm’s Bank of America account, and they were signed by the same person. The State Farm employee who gave him the checks told him that he could cash the checks at the Bank of America branch nearby on Canoga Avenue, and that the checks were ‘preapproved and easily verifiable based on a long standing agreement between State Farm and Bank of America.’

“Plaintiff went to the branch the State Farm employee recommended and waited in line for a teller. The teller told him that since he did not have a Bank of America account, the Bank would charge him to cash the checks. He knew that that might be the case, and told her that he did not have a problem with that. At the teller’s request, he endorsed the checks. The teller then said that she could cash the smaller check, but that the larger check needed approval from her supervisor.

“The supervisor, Reyes, came to the window and said that she could not cash the check unless plaintiff opened an account. Plaintiff told her that he did not want to open an account, that he needed the money right away (he had arranged to buy a car), and that State Farm had told him that the checks were preapproved. Reyes said that she could not verify the signature on the larger check and that he would have to deposit it. Plaintiff called State Farm and ...

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