Arciniega v. Bank of San Bernardino

• Citation: 52 Cal.App.4th 213,60 Cal.Rptr.2d 495
• Decision Date: 23 January 1997
• Docket Number: No. E016659,E016659
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 572, 97 Daily Journal D.A.R. 882 Leticia ARCINIEGA, Plaintiff and Appellant, v. BANK OF SAN BERNARDINO, N.A., Defendant and Respondent.

Page 495

60 Cal.Rptr.2d 495

52 Cal.App.4th 213, 97 Cal. Daily Op. Serv. 572,

97 Daily Journal D.A.R. 882

Leticia ARCINIEGA, Plaintiff and Appellant, v. BANK OF SAN BERNARDINO, N.A., Defendant and Respondent.

No. E016659.

Court of Appeal, Fourth District, Division 2, California.

Jan. 23, 1997.

[52 Cal.App.4th 215] Richard L. Quint, Santa Ana, for Plaintiff and Appellant.

Gresham, Varner, Savage, Nolan & Tilden, and Bart W. Brizzee, for Defendant and Respondent.

McDANIEL, Associate Justice. ^*

Leticia Arciniega (plaintiff) once operated a check-cashing business, styled as Community Financial Services, and in connection therewith maintained a commercial bank account The scam worked like this. El Faro opened a checking account with defendant. Over a period of time, there were issued to purported employees of El Faro what appeared to be bona fide payroll checks. These checks were periodically presented for cashing at plaintiff's place of business. On these occasions, telephone calls were made from plaintiff's business to defendant to verify that there were funds on deposit in the El Faro account to cover the checks. After this pattern of regularity had been established, El Faro struck. On a Friday, El Faro checks aggregating $7,353.37 were presented for cashing at plaintiff's business. Telephone calls to defendant confirmed that these checks would clear. The checks were cashed and, later that day, these same checks were deposited by plaintiff in her account with defendant. However, just before its 6:00 p.m. closing, someone appeared at defendant bank and succeeded in withdrawing all funds from the El Faro account.

with Bank of San Bernardino (defendant). In October of 1986, plaintiff and defendant, along with other merchants in San Bernardino, were the victims of a bogus check passing scam perpetrated by El Faro Construction Co. (El Faro).

The following Monday was a holiday. On Tuesday, when defendant discovered what had happened, it debited plaintiff's account pro tanto and returned the checks. Thereafter, defendant refused plaintiff's demand that her account be credited in the amount of $7,353.37, the aggregate amount of the El Faro checks, as noted, which she had cashed and then deposited in her account with defendant.

The resulting dispute led plaintiff to retain attorneys Brunick and Pyle to commence litigation against defendant. Such suit was eventually filed against defendant about a year after the scam had been perpetrated and was only the first of three separate lawsuits which figure in this appeal. In the first of these three actions, plaintiff alleged her damages to be $7,353.37, nothing more, and prayed for their recovery.

For reasons not fully revealed by the record, the action above noted, prepared and filed by attorneys Brunick and Pyle, was dismissed without prejudice and, for a time, the fact of such dismissal was unknown to plaintiff. Her discovery of the unauthorized dismissal eventually led plaintiff to file an action against her former attorneys for legal malpractice. This was the second of the three actions figuring in this appeal. In this action, plaintiff alleged damages of $137,543, predicated upon non-specific, boilerplate allegations of fraud and deceit, plus the infliction of emotional distress. A first amended complaint filed in this second action raised the price tag of plaintiff's grievance against her former attorneys to $265,498.53. Such grievance was later embellished by the allegations in a second amended complaint.

According to plaintiff's deposition testimony, given in the underlying (current and third) action, she settled the legal malpractice action against her former attorneys for $60,000 and it was then ordered dismissed. ¹ Thus fortified, plaintiff, with new counsel, resumed prosecution of the underlying (current) action against defendant. In terms of chronology, however, the underlying (current) action had actually been filed before the legal malpractice action. However, it had remained dormant until after settlement of the legal malpractice action.

In the third (the underlying) action, plaintiff again alleged, as in the first action, the deposit of $7,353.37 in checks with defendant, followed by defendant's refusal to pay plaintiff such sum. However, expanding upon the objective of the earlier (first) action against defendant, plaintiff, without providing any details, alleged in the complaint filed in the underlying (current) action that as "a legal result" of defendant's refusal to pay her the sum of $7,353.37 she had incurred $253,063.68 in "economic " damages.

The underlying (current) action, in which this appeal was taken, was resolved in the trial court by summary judgment entered in favor of defendant. Several grounds were Because defendant, in support of its motion, succeeded in showing that it had a complete defense to plaintiff's action by reason of a retraxit (post ), the burden shifted to plaintiff to show, if she could, that a triable issue of one or more material facts remained to be resolved as to such defense. (Code Civ. Proc. § 437c, subd. (o)(2).). In turn, because plaintiff failed to submit any evidentiary filings in opposition to the motion for summary judgment, other than copies of so-called Record of Return Items (post ), she failed to raise an issue of material fact requiring a trial of the affirmative defense. Thus, regardless of the theory of plaintiff's argument that there remains "a triable question of fact of plaintiff's total damage caused by the bank," because of the total absence of evidentiary filings by plaintiff, the trial court was required to grant the motion, as mandated by section 437c, subdivision (c) of the Code of Civil Procedure. In turn, we have no option other than to affirm the judgment.

urged in support of the motion. Choosing from among these, the trial court reasoned that plaintiff's receipt of $60,000 in settlement of the legal malpractice action barred plaintiff from further recovery against the bank, under the "case-within-a-case" doctrine.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

The underlying action, No. 263149, was filed April 24, 1991. However, a first amended complaint was not filed until October 15, 1993; yet certain filings in other actions had occurred before the two foregoing filings noted. More specifically, plaintiff had retained attorneys Brunick and Pyle to file an action, No. 240019, against defendant on October 9, 1987. Its objective was to recover the aggregate amount of the El Faro checks, $7,353.37, which defendant had returned to plaintiff after debiting her account in this amount. (Plaintiff's grievance against defendant dates from October 14, 1986, when defendant refused to credit plaintiff's account with the amount of the El Faro checks or to pay her such amount.) The initial action by plaintiff against defendant, No. 240019, was dismissed without prejudice on April 18, 1988.

About three years later, on April 24, 1991, as above noted, plaintiff filed the underlying action, No. 263149, against defendant. Thereafter, on January 3, 1992, plaintiff filed yet another action, No. 268648, this one for legal malpractice against Brunick and Pyle. On September 15, 1993, for a consideration of $60,000, this action, No. 268648 (against her former attorneys), was settled and ordered dismissed. (See fn. 1, ante.) A month later, a first amended complaint was filed in the underlying action.

This unverified pleading, in the first instance, reflected the allegations contained in plaintiff's initial complaint filed by her former attorneys against defendant in No. 240019 about six years earlier. More particularly, the complaint in No. 240019, alleged, "9. At or about 5:00 p.m. on October 10, 1986, plaintiff deposited the El Faro Construction checks in the amount of $7,353.37 in its account with defendant BANK OF SAN BERNARDINO. [p] 10. At approximately 6:30 p.m., all monies were withdrawn from the El Faro Construction account, without payment on any of the checks drawn against that account that day, including those previously deposited during the day by plaintiff. [p] 11. As a proximate result of the negligence of defendants, and each of them, plaintiff was damaged in the sum of $7,353.37, together with interest and expenses in a sum to be proven at trial, together with interest for loss of deposits, related expenses and lost income."

In this current effort against defendant, plaintiff likewise alleged, "4. Plaintiff, LETICIA ARCINIEGA, has and at all times hereinafter mentioned had on deposit with defendant, 'BSB[,'] the sum of $7,353.37 at its branch located at 505 West Second Street, San Bernardino, California. [p] 5. Defendant, 'BSB[,'] has intentionally refused and failed and still fails and refuses to pay plaintiff, LETICIA ARCINIEGA, the sum of $7,353.37, or any part thereof although plaintiff has demanded and continues to demand of defendant that it pay the same; the sum of $7,353.37 is due, owing and unpaid from defendant to plaintiff since October 14, 1986, with legal interest at the rate of $2.04 per day until paid."

However, the current effort in No. 263149 has been expanded beyond that in No. 240019 to include allegations that "6. As a legal result of the defendant's [sic ], and each of their, refusal and failure to pay said sum of deposit, plaintiff, LETICIA ARCINIEGA, has incurred $253,063.68 in economic damages, with legal interest thereon, representing loss of business income, re-financing costs [sic ], interest payments and attorney's fees. [p] Plaintiff, LETICIA ARCINIEGA, anticipates she will continue to incur attorney's fees and legal costs, the exact amount of which shall be proven at trial. [p] 7. As a further legal result of defendant's [sic ], and each of their, refusal and failure to pay said sum of deposit, plaintiff, LETICIA ARCINIEGA, was unable to remain in the check cashing business and has lost profits on said business in an amount to be proven at trial. [p] 8. As...