Beizer v. Financial Savings & Loan Assn.

• Decision Date: 13 September 1985
• Citation: Beizer v. Financial Savings & Loan Assn., 218 Cal.Rptr. 143, 172 Cal.App.3d 133 (Cal. App. 1985)
• Court: California Court of Appeals
• Parties: Hyman B. BEIZER, Plaintiff and Appellant, v. FINANCIAL SAVINGS & LOAN ASSOCIATION, Defendant and Respondent. Civ. B014452.

Page 143

218 Cal.Rptr. 143

172 Cal.App.3d 133

Hyman B. BEIZER, Plaintiff and Appellant, v.FINANCIAL SAVINGS & LOAN ASSOCIATION, Defendant and Respondent.

Civ. B014452.

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

Sept. 13, 1985.

[172 Cal.App.3d 134] Albert A. Dorn, Los Angeles, for plaintiff and appellant.

Good, Wildman, Hegness & Walley by Ronald K. Brown, Jr., Newport Beach for defendant and respondent.

GATES, Associate Justice.

Proceeding under Rule 62, subdivision (a), of the California Rules of Court, on our motion we ordered this matter transferred when the Appellate Department of the Los Angeles Superior Court certified for publication a decision that suggested it was founded upon a record sufficient to permit an important and novel issue of law to be definitively resolved.

Some years ago this appellate department abandoned its former practice of first certifying its decisions to us for consideration prior to directing their publication.Thus deprived of (1) a statement of the question or questions believed to require resolution (Cal.Rules of Court, rule 63, subd. (e)) and (2) an opportunity to review the record that underlies these questions prior to deciding whether or not to order a transfer (Cal.Rules of Court, rule 64, subd. (b)), we frequently must base our initial decision largely upon guesswork.

However, since the instant case is before us, we shall attempt to speak to the potential issues inherent therein, even though it is now clear the appellant has overlooked the obligation imposed upon one who would challenge a trier of fact's decisions to perfect a record that demonstrates the existence of the errors alleged.(In re Kathy P.(1979)25 Cal.3d 91, 102, 157 Cal.Rptr. 874599 P.2d 65;Weiss v. Brentwood Sav. & Loan Assn.(1970)4 Cal.App.3d 738, 746, 84 Cal.Rptr. 736.)

While we have been presented with no record of the trial itself, so far as can be gleaned from the laconic settled statement and the patchwork collection of excerpted items that is before us, appellantHyman Beizer, his wife and adult daughter, Lorraine Graham, on January 6, 1981, opened a joint tenancy "T-Bill Plus" account in the amount of $10,000 with respondentFinancial Savings & Loan Association.In his deposition appellant asserted the funds deposited in this account had been derived from the Beizers' earnings and the joint tenancy form had been adopted because "My wife felt that if anything ever happened to both of us after our deaths our daughter would be able to have access to the account without the necessity of going through probate."

Appellant's wife died on February 16, 1981.Financial was not notified of her demise and on February 20, 1981, it surrendered to appellant's daughter the entirety of the account, even though she was not then in possession of the T-bill certificate.¹Graham had told the branch office manager, Brenda Karst, that "her mother was sick in the hospital with her father by her bedside and that the funds within the ... account were the only monies available to satisfy the costs of medical care which was desperately needed by her mother."After assuring herself of Graham's identity, Karst waived presentation of the certificate and authorized the withdrawal.

Appellant was advised of these events when he went to Financial "in connection with the account" on approximately March 1, 1981.A year later, on March 1, 1982, he filed the instant action for breach of contract.

As authorized by present sections 6800-6803(formerly §§ 7602-7604) of the Financial Code, ² the signature card signed by the three joint tenants permitted any one of them to direct Financial to make payments from the account, i.e., "Until notified to the contrary in writing signed by one or more of the signatories, Association is authorized to act as to such account in accordance with any writing bearing the signature of any one or more of signatories appearing on reverse; including, without limiting the generality of the foregoing, (1) the payment, delivery or transfer of all or any part of such account, or any rights relating thereto, at any time(s) to one or more of the signatories, or to any other person(s), and any such payment, transfer or delivery, or a receipt or acquittance signed by one or more of the signatories, shall be a valid release and discharge of Association; (2) the acceptance of a pledge of such savings account as security for a loan from Association to one or more of us...."(See Attachment "A.")

The T-bill certificate itself set forth in five sections additional terms governing the account and, under the caption, "IMPORTANT INFORMATION REGARDING THIS SAVINGS ACCOUNT," contained, inter alia, the notation: "Withdrawals may be made only if this certificate accompanies the request."(See attachment "B.")

Appellant conceded he had not read any of the provisions of the certificate at the time the account was opened nor had he discussed any of its terms with the officers with whom he dealt.Furthermore, so far as revealed by our record, he never has explicitly stated when he first became aware of the informational language indicating the document itself should accompany any request for withdrawal.In a declaration in opposition to a motion for summary judgment, appellant merely alleged that at some undesignated point in time after the account was opened he had read the words printed thereon.Without further specification he declared:

"I regarded these provisions as part of the contract between myself and [Financial] and relied upon these contractual provisions in all of my dealings with [Financial]."He additionally asserted, "I was never informed by [Financial] or any of its agents, servants or employees that [it] would permit the funds in my Certificate account to be withdrawn without the presentation of the Certificate.If I had been so informed I would have had an opportunity to take steps to protect the account from being depleted, as happened in this case."

Obviously the trier of fact was not required to give full credit to such general conclusional assertions, particularly when their vagueness appears to have been carefully designed.In any event, appellant acknowledged that at no time had he instructed Financial, either orally or in writing, to restrict the other signatories' ability to withdraw or deposit funds in the account in accordance with the provisions of the signature card.

At trial Financial took the position that in the absence of any written instructions to the contrary, it was justified in releasing the funds to Graham under the clear terms of the signature card and the relevant provisions of the Financial Code, both of which formed a part of its contract with appellant.In addition, it asserted in both the points and authorities accompanying its motion for summary judgment and its brief filed in the appellate department, that the clause in the certificate referred to by appellant was merely a statement of its policy and not part of its contractual relationship with him, his wife and his daughter.This, it urged, was demonstrated by the fact that reference to the need to present the certificate when making withdrawals was "positioned below the signature line and conspicuously adjacent to the logo of FINANCIAL SAVINGS," while "[a]ll of the contractual provisions appear above the signature line."

Such a contention was certainly not an unreasonable one, particularly when it is noted that none of the other items of "IMPORTANT INFORMATION" set forth on the certificate could possibly have been construed as among those contractual promises Financial made for the benefit of its depositors.³As a result, Financial argued, appellant did not have, and could not have had, any reasonable expectation that presentation of the certificate would be an absolute prerequisite to the withdrawal of funds.

In support of its position, Financial relied largely upon Gray v. Landmark Union Trust Bank, etc.(Fla.App.1978)364 So.2d 1256, 1257, wherein the court found that a statute similar to our Financial Code section 6803 was "clearly designed to protect a bank from liability to a depositor in situations where, as here, it pays funds from a joint account to a co-depositor."It concluded that "passbook presentation clauses are for the purpose of preventing payment to one who is not a depositor and may be waived by the bank.The clauses are not meant to protect a depositor against withdrawals by a co-depositor.To hold otherwise would place a heavy burden on a bank to mediate between co-depositors, and this is one of the burdens which the legislature sought to remove by enacting [the statue under review]."(Id., pp. 1257-1258.See alsoPaskas v. Illini Federal Sav. & Loan Ass'n(1982), 109 Ill.App.3d 24, 64 Ill.Dec. 642, 645-646, 440 N.E.2d 194, 197-198;Speasl v. National Bank of Decatur(1962)37 Ill.App.2d 384, 186 N.E.2d 84, 86-88;Forbes v. First Camden Nat. Bank & Trust Co.(N.J.App.Div.1953)25 N.J.Super. 17, 95 A.2d 416, 418-419;Brooks v. Erie County Savings Bank(N.Y.1915)169 A.D. 73, 154 N.Y. 692, 693.)

Appellant, on the other hand, relied upon decisions which, in appropriate factual contexts, have held that a rule printed in a passbook which requires production of that book when money is withdrawn may constitute a part of the contract between a bank and its depositors which may not be unilaterally waived by the bank to the disadvantage of the account's several joint owners.(Badders v. Peoples Trust Company(1957)236 Ind. 357, 140 N.E.2d 235;Graves v. Red River Valley Bank(La.App. 2 Cir.1984)445 So.2d 122, 124-125;Stillings v. Citizens Bank of Ava(Mo.App.1982)637 S.W.2d 401, 404;Welch v. North Hills Bank(Mo.App.1969)442 S.W.2d 98, 103;Keokuk Savings Bank & Trust Company v. Desvaux(1966)259 Iowa 387, 143 N.W.2d 296, 300-302;Griffin v. Centreville Savings Bank(1961)93 R.I. 47, 171 A.2d 204, 207-208;La Valley v. Pere Marquette Employes' Credit Union...