La Vista Cemetery Assn. v. American Sav. & Loan Assn.

• Decision Date: 27 October 1970
• Court: California Court of Appeals Court of Appeals
• Parties: LA VISTA CEMETERY ASSOCIATION, a non-profit California corporation, et al., Plaintiffs and Appellants, v. AMERICAN SAVINGS AND LOAN ASSOCIATION, a California corporation, Defendant and Respondent. Civ. 36096.

Page 722

90 Cal.Rptr. 722

12 Cal.App.3d 365

LA VISTA CEMETERY ASSOCIATION, a non-profit California corporation, et al., Plaintiffs and Appellants, v. AMERICAN SAVINGS AND LOAN ASSOCIATION, a California corporation, Defendant and Respondent.

Civ. 36096.

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

Oct. 27, 1970.

Geo. C. Gillette, Anaheim, for plaintiffs and appellants.

Daniel S. McDonald, Daniel L. Shafton, Mark Brandler, Beverly Hills, of counsel, for defendant and respondent.

FLEMING, Associate Justice.

Plaintiffs La Vista Cemetery Association and The Trustees of La Vista Cemetery Association Endowment Care Fund (hereafter collectively La Vista) appeal the judgment of dismissal of their action against American Savings and Loan Association (hereafter American) for the recovery of money on deposit and for damages for fraud. American's demurrer to the first amended complaint for failure to state a cause of action and for uncertainty was sustained by the trial court without leave to amend.

The complaint reveals the following facts: In August 1964 two La Vista employees were entrusted with three checks totalling $30,000 payable to La Vista. The employees endorsed the checks in La Vista's name for deposit in an American savings account, which latter account was in the name of an entity controlled by the employees. Shortly thereafter the employees withdrew these funds from the account and apparently have since absconded.

Two possibilities flow from these facts. First, the acts of the employees in endorsing the checks and depositing them in American could have been authorized. If so, La Vista has no cause of action against American, for the exhibits incorporated in La Vista's complaint show that authorized withdrawals have emptied the American account and left American with liability to no one under that account. Second, the acts of the employees in endorsing and depositing the checks could have been unauthorized. Under this possibility La Vista would be in the position of a payee whose endorsement has been forged. By the law applicable in 1964 (former section 3104 of the Civil Code) the remedies of a payee against a holder or collecting bank which collects from the drawee and gives the money to a false payee, are for money had and received (George v. Security Trust & Sav. Bank, 91 Cal.App. 708, 267 P. 560), or for conversion (Fabricon Products v. United Cal. Bank, 264 Cal.App.2d 113, 70 Cal.Rptr 50; 1 Witkin, Summary of California Law, 1960 ed., p. 641), and the periods of limitation for such remedies are two years and three years, respectively (Fabricon Products v. United Cal. Bank, Supra). But since La Vista did not file suit until February 1969, its causes of action as a payee whose endorsement had been forged were barred by the statute of limitations.

Undaunted by the realities of its case, La Vista has searched the statutes and found two causes of action not yet barred by the statute of limitations. It has used these two as the basis for its complaint.

Its first cause of action is for the recovery of money on deposit (no period of limitation, Code Civ.Proc., § 348). It is alleged that La Vista deposited $30,000 with American in 1964 and American now refuses to repay that sum with interest. But, as previously indicated, La Vista's own exhibits incorporated in the complaint provide a complete defense to this cause of action since they show that authorized withdrawals have depleted the American account. Furthermore, La Vista has not alleged that it was authorized to make withdrawals from the account in which the deposits were made. Thus the cause of action from...