Hirons v. U.S. Bank

• Decision Date: 14 February 2022
• Docket Number: B312669
• Court: California Court of Appeals Court of Appeals
• Parties: KARIE HIRONS, Plaintiff and Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Defendant and Respondent.

KARIE HIRONS, Plaintiff and Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Defendant and Respondent.

B312669

California Court of Appeals, Second District, Third Division

February 14, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County (Los Angeles County Super. Ct. No. 20STCV26680), Holly J Fujie, Judge. Affirmed.

Law Offices of John A. Belcher and John A. Belcher for Plaintiff and Appellant.

Shepard, Mullin, Richter & Hampton, Sascha Henry, Valerie E. Alter and Juthamas Suwatanapongched for Defendant and Respondent.

EDMON P. J.

Plaintiff Karie Hirons (Hirons) appeals a judgment in favor of defendant U.S. Bank National Association (U.S. Bank). The court ordered judgment in favor of U.S. Bank after sustaining U.S. Bank's demurrer with leave to amend, and Hirons did not amend the complaint. We conclude that the trial court properly sustained the demurrer as to each of Hirons's causes of action. Accordingly, we affirm the judgment.

BACKGROUND

I. Prior proceedings.

A. Hirons's sexual assault suit.

Hirons retained attorney Lisa Maki (Maki) in August 2016 to represent her in a sexual assault suit (the sexual assault suit). Hirons and Maki entered into a retainer agreement, under which Maki was entitled to 40 percent of Hirons's recovery.

In April of 2018, Hirons settled the sexual assault suit for $450, 000 pursuant to a written settlement agreement. The settlement agreement provided that in exchange for the settlement payment, Hirons agreed to dismiss her action and release the defendants from any and all claims against them. The settlement agreement further provided that "[Hirons] and [her] attorney [Maki], for themselves and for each other, . . . represent and warrant that no settlements funds will be transferred to [Hirons] until all [third party] liens and similar claims have been determined and satisfied by them, and each of them," and "[i]t is understood and agreed that [defendants] shall not be responsible for . . . any lien . . . beyond the consideration directed to go to [Hirons] and [Hirons's] attorney, as mentioned herein, who will hold the monies in trust and/or a set-aside account until such are satisfied."

The settlement check was made out to both Hirons and Maki and was delivered to Maki. Maki signed the check via a stamped signature and submitted it to U.S. Bank for deposit without Hirons's signature. U.S. Bank accepted the check for deposit into Maki's client trust account even though Hirons did not sign the check. Hirons alleges that Maki thereafter paid her only $70, 000 of the $270, 000 to which Hirons was entitled.

B. Hirons's suit against Maki.

In May 2019, Hirons filed suit against Maki to recover monies that Maki owed her from the settlement. Maki failed to answer the complaint, and in September 2020, Hirons obtained a default judgment against Maki for $1, 649, 302.

II. The present action.

A. The operative complaint.

On July 15, 2020, Hirons filed the present action against U.S. Bank alleging that U.S. Bank accepted the settlement check made out to both Hirons and Maki, with only Maki's signature. Hirons alleged five causes of action against U.S. Bank: (1) conversion (Civ. Code, § 3336), (2) elder abuse, (3) payment on unauthorized check (Cal. U. Com. Code, §§ 3403, 4401), (4) negligence, and (5) breach of contract.

U.S. Bank demurred to the complaint. The trial court sustained the demurrer with leave to amend.

On November 16, 2020, Hirons filed the operative first amended complaint (FAC). The FAC was nearly identical to the original complaint, but it additionally alleged that Hirons did not authorize Maki to deposit the check into Maki's account, and that "[a]ll of the promises and representations made by Maki to procure Hirons' 'consent' were false." Hirons also attached as exhibits to the FAC (1) the settlement agreement in the sexual assault suit, and (2) Hirons's declaration filed in the suit against Maki. As relevant here, Hirons's declaration stated as follows:

". . . On April 27, 2018, I agreed to settle the [sexual assault suit] for $450, 000 after Maki represented to me that the settlement offer was fair. . . .

". . . After the [sexual assault suit] settled, I asked Maki to use the settlement funds to pay off the High Rise Loan.^[1] I also asked Maki to hold on to the rest of the settlement funds until I could retain a financial planner. As of that time, the payoff amount for the High Rise Loan was $7, 599.00.

". . . Maki agreed to pay off the High Rise Loan. Maki represented that the remainder of the settlement funds would be placed in a client trust account. Maki did, however, disburse approximately $70, 000 for my living expenses.

". . . In November 2018, I received a call from High Rise Financial indicating that the High Rise Loan was still outstanding. Prior to this call, I did not know that, contrary to Maki's representation, she had not paid off the High Rise Loan.

". . . In November and December 2018, I demanded that Maki pay off the High Rise Loan and disburse to me the remainder. Maki replied that she will 'take care of everything.' Maki, however, never paid off the High Rise Loan. To date, Maki has only disbursed to me $70, 000.

". . . After I became aware of Maki's fraud, I conducted an investigation and learned that Maki's misappropriation of my funds was part of a pattern. In November 2018, I discovered that Maki was ordered ineligible to practice law by the State Bar of California . . . ."

B. Demurrer and judgment.

U.S. Bank filed a demurrer and motion to strike the FAC. U.S. Bank asserted, among other things, that all of Hirons's causes of action failed because the exhibits to the FAC, including Hirons's January 2020 declaration in her suit against Maki, showed that Maki had Hirons's consent to deposit and disburse funds from the settlement check. Further, Hirons "made no demand on U.S. Bank until July 2020 when she filed the lawsuit. By then, over two years had passed since Maki deposited the check, and more than a year had passed since [Hirons] sued Maki. . . . Nowhere in the FAC does [Hirons] explain her inaction or delay in notifying U.S. Bank of Maki's purported fraud or conversion of [Hirons's] funds."

Hirons opposed the demurrer. She urged that she did not authorize Maki to deposit the settlement check before U.S. Bank accepted it, and the events after the deposit were irrelevant to U.S. Bank's breach because "they came after the fact and [were] procured by fraud."

On January 11, 2021, the trial court sustained U.S. Bank's demurrer. The court explained: "The FAC is premised on Defendant's negligently giving Maki the $450, 000.00 in settlement funds and allowing Maki to deposit the funds in an account, allegedly without Plaintiff's knowledge or consent. According to Plaintiff's declaration in the [suit against Maki], of which the Court can and does take judicial notice, Plaintiff consented to Maki obtaining and holding the settlement funds. Plaintiff's declaration . . . states that Maki had authority to obtain the settlement funds on behalf of Plaintiff and Maki could possess such settlement funds. The basis for the FAC fails because Plaintiff's declaration in the [suit against Maki] shows that Plaintiff consented to and had knowledge of Maki's obtaining the settlement funds."

The court granted Hirons leave to amend her complaint, but Hirons did not pursue further amendment. On March 10, 2021, the court entered judgment in U.S. Bank's favor. Hirons timely appealed.

DISCUSSION

I. Standard of review.

"' "On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law."' (Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016.)" (Inns-by-the-Sea v. California Mutual Ins. Co. (2021) 71 Cal.App.5th 688, 696.) In reviewing the sufficiency of a complaint, we accept as true all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)"' "[F]acts appearing in the exhibits attached to the complaint will also be accepted as true, and if contrary to the allegations in the pleading, will be given precedence." '" (Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145-1146.) With regard to affirmative defenses, "' "[i]t must appear clearly and affirmatively that, upon the face of the complaint [and matters of which the court may properly take judicial notice], the right of action is necessarily barred." '"

(Favila v. Katten, Munchin Rosenmann LLP (2010) 188 Cal.App.4th 189, 224.) When" 'a plaintiff is given the opportunity to amend [her] complaint and elects not to do so, strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as [she] can.'" (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252.)

II. Hirons's claims for conversion and payment on unauthorized check (first and third causes of action).

A. A bank is liable for conversion under the California Uniform Commercial Code if it accepts a check on the unauthorized endorsement of a payee.

"' "Conversion is the wrongful exercise of dominion over the property of another."' (Hernandez v Lopez (2009) 180 Cal.App.4th 932, 939; accord, Hester v. Public Storage (2020) 49 Cal.App.5th 668, 680.)" (Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 576.) "To prove conversion, a plaintiff must establish three elements: (1) 'plaintiff's ownership or right to possession of property,' (2) 'defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession,' and (...