Heston v. Feuillet
Filed 6/21/12 Heston v. Feuillet CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JEFFREY G. HESTON,
Plaintiff and
Appellant,
v.
DAEMON FEUILLET et al.,
Defendants and
Respondents.
[And six other cases.
D060250
(Super. Ct. No. 37-2010-00096471-
CU-NP-CTL)
APPEAL from a judgment of the Superior Court of
County, Luis R. Vargas, Judge.
Affirmed.
This action is a consolidation of
seven complaints for conversion filed by Jeffrey Heston, in propria persona
against Bank of America, N.A., and Daemon Feuillet and other bank employees
(collectively, the Bank). Heston, a
payee of checks written by an account holder of the Bank, cashed the checks at
a bank branch, and the Bank charged him a disclosed $5 per check service fee it
imposes on noncustomers.
name="_ftnref3" title="">[2] Heston appeals a
court sustained the Bank's demurrer without leave to amend. We affirm the judgment.
DISCUSSION
I
"On appeal from a judgment
after a demurrer is sustained without leave to amend, we review the trial
court's ruling de novo, exercising our independent judgment on whether the
complaint states [facts sufficient to constitute] a cause of action." (Lincoln
Property Co., N.C.,
137 Cal.App.4th 905, 911.)
"
' "We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions of conclusions of fact or law. [Citation.]" . . . Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context.' " (
When a general demurrer is
sustained, "the plaintiff must be given leave to amend his or her
complaint when there is a reasonable possibility that the defect can be cured
by amendment. [Citations.] 'The burden of proving such reasonable
possibility is squarely on the plaintiff.' " (Maxton
v. Western States Metals (2012) 203 Cal.App.4th 81, 95.)
II
We conclude Heston's case lacks merit
as a matter of law. "A cause of action for conversion
requires allegations of plaintiff's ownership or right to possession of
property; defendant's wrongful act toward or disposition of the property, interfering
with plaintiff's possession; and damage to plaintiff." (McKell
v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)
"A payor bank is liable to its
by the wrongful dishonor of an item."
(Cal. U. Com. Code, § 4402, subd. (b), italics added.) "Generally, a drawee bank is not liable
to a holder for failure to pay a check, because the check itself is not an
assignment of the funds in the drawer's bank account. [Citation.]
The payee's remedy is against the maker of the check, not against the
payor bank." (Nautilus Leasing Services, Inc. v. Crocker National Bank (1983) 147
Cal.App.3d 1023, 1028.) "It is
immaterial, . . . in determining the question of payment,
whether the bank had in fact a valid ground for refusal to
pay, . . . or whether the refusal was entirely without
justification; the drawee bank can refuse to pay a check for no reason at all
without incurring any liability to the payee." (Sneider
v. Bank of Italy (1920) 184 Cal. 595, 599.)
We agree with the Bank that since it may decline to pay a check for no
reason without liability to the payee, it may deduct a service fee without
incurring any liability to the payee.
Heston cites no apposite authority
to support his theory he had a contractual relationship with the Bank. Rather, he cites authority discussing the
relationship between a bank and its depositor. "The relation of banker and depositor is
founded on contract. The essence of the
bank's obligation under such debtor and creditor contract is that in
consideration of the deposit by the customer or depositor, the bank will
whenever by the presentation of a genuine check in the hands of a person
entitled to receive the amount of such check, a demand for payment is made,
honor such check if sufficient funds to cover the amount thereof are on deposit
[citation]. And the rule is firmly
established in this state that whenever the bank fails to discharge its
agreement by dishonoring a duly presented check, a right of action then
accrues." (Allen v. Bank of America Nat'l Trust & Sav. Asso. (1943) 58
Cal.App.2d 124, 127.) The right of
action is in favor of the depositor, not the payee, who lacks standing. Heston's recourse, if any, was through the
maker of the checks.
Moreover, Heston's action lacks
merit even without considering banking law, because implied consent is an
absolute defense to conversion claims. (Klett
v. Security Acceptance Co. (1952) 38 Cal.2d 770, 789; Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 716-717;
Cal.App.2d 392, 406; Farrington v. A.
Teichert & Son, Inc. (1943)
59 Cal.App.2d 468, 474.)
" ' "Consent, in law, means a voluntary agreement by
a person in the possession and exercise of sufficient mentality to make an
intelligent choice, to do something proposed by another." ' " (Wade,
supra, at p. 406.) " 'Implied
consent is that manifested by signs, actions, or facts, or by inaction or
silence, from which arises an inference that the consent has been
given.' " (
Heston impliedly consented to the
imposition of the service fees by proceeding to cash the checks after the bank
advised him he could either pay the fee or take the checks elsewhere. According to Heston's seven complaints, he
cashed 19 checks at the bank between February and July of 2010. One wonders why Heston intentionally
continued to incur service fees he found objectionable instead of cashing the
checks somewhere else, such as his own financial institution, or requesting a
different form of payment from the maker of the checks. He cannot now invoke the court's assistance.
DISPOSITION
The judgment is affirmed. The defendants are entitled to
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
v. Teller Number
37-2010-00096557-CU-NP-CTL); Heston v.
Teller Number 15 (No. 37-2010-00096558-CU-NP-CTL); Heston v. Teller Number 7 (No. 37-2010-00096577-CU-NP-CTL);
37-2010-00096578-CU-NP-CTL); Heston v.
Teller Number 13 (No. 37-2010-00096579-CU-NP-CTL).
also represents himself on appeal.
