Severin Mobile Towing, Inc. v. JPMorgan Chase etc. ( 2021 )


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  • Filed 6/9/21
    CERTIFIED FOR PUBLICATION
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    SEVERIN MOBILE TOWING, INC.,               D077409
    Plaintiff and Appellant,
    v.
    (Super. Ct. No. 37-2017-
    JPMORGAN CHASE BANK, N.A.,                 00031451-CU-MC-CTL)
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Ronald L. Styn, Judge. Reversed and remanded with directions.
    Niddrie Addams Fuller Singh, Victoria E. Fuller and John S. Addams
    for Plaintiff and Appellant.
    Ballard Spahr, Amy Schwartz (pro hac vice), and Scott S. Humphreys
    for Defendant and Respondent.
    Over the course of a few years, an employee of Severin Mobile Towing
    Inc. (Severin) took about $157,000 in checks made payable to Severin’s d/b/a,
    endorsed them with what appears to be his own name or initials, and
    deposited them into his personal account at JPMorgan Chase Bank N.A.
    (Chase). Because the employee deposited all the checks at automated teller
    machines (ATM’s), and because each check was under $1,500, Chase—in
    accordance with its deposit procedures—accepted each check without “human
    review.” When Severin eventually discovered the embezzlement, it sued
    Chase for negligence and conversion under California’s version of the
    Uniform Commercial Code (UCC), and for violating the unfair competition
    law (Bus. & Prof. Code, § 17200; the UCL) based on those alleged UCC
    violations.
    Severin moved for summary adjudication of its conversion cause of
    action and Chase moved for summary judgment of all of Severin’s claims.
    Chase argued Severin’s claims as to 34 of the 211 stolen checks were time-
    barred and the remaining claims were barred by two UCC defenses:
    California Uniform Commercial Code sections 3405 and 3406.1
    Section 3405 (generally speaking) shields a bank from liability for
    accepting a check made out to an employer if an employee “fraudulently
    indorse[d]”2 the check by signing it in a manner “purporting to be that of the
    employer” (§ 3405, subd. (a)(2)), and the bank exercised “ordinary care” in
    accepting the check “in good faith” (§ 3405, subd. (b)). Chase supported its
    motion with an expert’s opinion that Chase’s automated deposit procedures
    satisfied the applicable ordinary care standard, but Chase did not address
    whether Severin’s employee had fraudulently indorsed the stolen checks as
    defined in section 3405, subdivision (a)(2). Chase also relied on section 3406,
    1   Unspecified statutory references are to the California Uniform
    Commercial Code.
    2     “The law in this area is riddled with spelling anomalies. Depository,
    depositary—endorse, indorse—insure, assure.” (HH Computer Systems, Inc.
    v. Pacific City Bank (2014) 
    231 Cal.App.4th 221
    , 226, fn. 3 (HH Computer
    Systems).) When referring to the statutory phrase, we will use “fraudulent
    indorsement.” In all other contexts, we will use “endorsement.”
    2
    which applies when a victim’s negligence substantially contributed to the
    fraud.
    The trial court granted Chase’s motion on statute of limitations and
    section 3405 grounds; the court did not reach section 3406. The court denied
    Severin’s motion as moot, and entered judgment for Chase.
    On appeal, Severin argues only that the court erred in granting
    summary judgment to Chase on Severin’s conversion cause of action (and, by
    extension, the derivative UCL cause of action). Severin does not challenge
    the trial court’s ruling as to the statute of limitations or the negligence cause
    of action.
    Specifically, Severin argues the court erroneously granted summary
    judgment under section 3405 because Chase failed to meet its burden of
    establishing that Severin’s employee fraudulently indorsed the stolen checks
    in a manner “purporting to be that of [his] employer.” (§ 3405, subd. (a)(2).)
    Severin further argues factual disputes about its reasonableness in
    supervising its employee preclude summary judgment under section 3406.
    We agree with Severin in both respects, and therefore do not reach the
    merits of Chase’s claim that its automated deposit procedures satisfy the
    applicable ordinary care standard. Accordingly, we reverse the judgment and
    remand with directions specified in the Disposition.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    A. Factual Background
    Severin is an auto towing company doing business as “USA Towing &
    Recovery.” Severin is owned and operated by brothers Asad and Basil Raffo,
    who started the company in 2007. That year, Severin hired Guillermo
    Oseguera as its first employee. The company did not run a background check
    3
    on Oseguera when it hired him, but a check a few years later came back
    clean.
    Oseguera began as a tow truck driver, and was promoted to lot
    manager within a year. He was “ ‘100 percent responsible’ for running the
    lot.” Tow truck drivers would drop an average of four to five cars at the lot
    each day. Each driver would give Oseguera an invoice for the vehicle, which
    Oseguera was supposed to enter into Severin’s computer system. When
    someone would come to retrieve a vehicle, that person would give payment to
    Oseguera, who would release the vehicle. Oseguera “was the only lot
    manager that had the power to ‘release’ cars from the lot by himself.”3
    At the end of each day, Oseguera was supposed to take the invoices and
    payments to Asad. Asad testified in his deposition that Oseguera “ ‘was 100
    percent responsible for receiving the car, entering the information [into
    Severin’s computer system], receiving the check and then releasing the car,
    and he would run that all through [Asad].” No one at Severin reviewed
    Oseguera’s files or compared the invoices he delivered at the end of each day
    to the original invoices in his files.
    Severin first suspected in mid-2016 that Oseguera might be stealing
    money. Severin discovered that from time-to-time, at the end of the work
    day, Oseguera “would actually steal one or two checks and misfile the related
    invoices.” When Asad confronted Oseguera about the theft, Oseguera left
    work and never returned. Asad filed a police report, but never took legal
    action against Oseguera because he was “a fugitive . . . in Mexico.”
    3    Asad explained in deposition that managers of Severin’s other lots
    “needed permission” because they did not have the software required to
    generate invoices.
    4
    After Oseguera’s departure, Severin implemented several new
    procedures to prevent employee theft, including installation of surveillance
    cameras on the lot, use of triplicate invoices delivered simultaneously to the
    lot manager and an owner, and division of responsibility for intaking and
    releasing vehicles. Still, Asad testified Oseguera “could have come up with
    something else” to circumvent Severin’s new measures. It “blew out [Asad’s]
    mind,” in the first place, “that somebody could cash a check written to
    somebody else.”
    About a month after it discovered the fraud, Severin notified
    Oseguera’s bank (Chase). Based on a review of Oseguera’s account records
    for the period January 2014 through September 2016, it appears he deposited
    into his own account 211 checks payable to “USA Towing” totaling
    $156,805.30. Each check was for an amount less than $1,500, and was
    deposited at an ATM. Oseguera endorsed the checks with what appears to be
    his own name or initials, rather than the name Severin or USA Towing.4
    Under Chase’s applicable Deposit Review Operations procedures,
    checks under $1,500 deposited at ATM’s were “automatically processed and
    accepted for deposit without human review.” Accordingly, every check at
    issue “was processed by automatic means and accepted without review for
    deposit into Oseguera’s account.”
    4      The appellate record contains Severin’s stolen checks and several
    unrelated checks payable to Oseguera. He endorsed all of these checks in a
    substantially similar manner, with what appear to be two initials followed by
    handwriting that is difficult to decipher (see exemplar attached as Appendix
    A, post, page 23). Chase’s appellate counsel acknowledged at oral argument
    that none of the “squiggle[d]” endorsements on the checks appear on their
    face to be in the name of Severin or USA Towing. We agree.
    5
    B. Severin’s Complaint
    Severin sued Chase in August 2017 to recover the sums Oseguera stole.
    Severin’s complaint asserted three causes of action: (1) a statutory negligence
    claim alleging Chase breached a duty of care by permitting Oseguera to
    deposit checks payable to USA Towing into his personal account without
    verifying the endorsements; (2) a statutory conversion claim alleging Chase
    converted funds by allowing Oseguera to deposit checks lacking proper
    endorsements into his personal account; and (3) a UCL claim premised on the
    statutory violations alleged in the first two causes of action.
    C. Cross-Motions for Summary Disposition
    The parties eventually filed simultaneous dispositive motions—Severin
    moved for summary adjudication of its conversion claim, and Chase moved
    for summary judgment (or, in the alternative, summary adjudication) of all of
    Severin’s claims.
    1. Chase’s Motion
    Chase moved for summary judgment on two grounds.
    First, Chase argued that claims arising from 34 of the stolen checks
    were time-barred under the applicable three-year statute of limitations. (See
    Edward Fineman Co. v. Superior Court (1998) 
    66 Cal.App.4th 1110
    , 1117-
    1118 (Edward Fineman) [individual checks are subject to summary
    adjudication].) Severin did not contest the argument, and the trial court
    found it meritorious.
    Second, Chase argued all of Severin’s claims were barred by the
    defense set forth in section 3405, which, as noted, can shield a bank from
    liability for accepting a check made out to an employer if an employee
    “fraudulently indorse[d]” the check and the bank exercised “ordinary care” in
    accepting the check “in good faith.” (§ 3405, subd. (b).) Chase relied on the
    6
    definition of “ordinary care” set forth in section 3103, subdivision (a)(7),
    which, in certain circumstances, allows banks to accept checks “by automated
    means” without “examin[ing]” them.5 Chase submitted a declaration and
    report from a banking expert who asserted Chase “exercised ordinary care
    and observed reasonable commercial standards in the process of the ATM
    deposits at issue.” Chase did not address the fraudulent indorsement prong
    of the defense.
    In opposition, Severin argued Chase had failed to establish its section
    3405 defense because it had not shown that Oseguera fraudulently indorsed
    the stolen checks as required by section 3405. Citing the statute’s narrow
    definition of a “fraudulent indorsement” as “a forged indorsement purporting
    to be that of the employer” (§ 3405, subd. (a)(2), italics added),6 Severin
    argued that because Oseguera had signed the checks in his own name, rather
    than in Severin’s or USA Towing’s name, Chase had not satisfied the
    threshold criterion. Severin also argued Chase “did not act with ordinary
    5     Section 3103, subdivision (a)(7) states: “ ‘Ordinary care’ in the case of a
    person engaged in business means observance of reasonable commercial
    standards, prevailing in the area in which the person is located, with respect
    to the business in which the person is engaged. In the case of a bank that
    takes an instrument for processing for collection or payment by automated
    means, reasonable commercial standards do not require the bank to examine
    the instrument if the failure to examine does not violate the bank’s
    prescribed procedures and the bank’s procedures do not vary unreasonably
    from general banking usage not disapproved by this division or Division 4
    (commencing with Section 4101).”
    6     The definition also covers another scenario not at issue here: “[I]n the
    case of an instrument with respect to which the employer is the issuer, a
    forged indorsement purporting to be that of the person identified as payee.”
    (§ 3405, subd. (a)(2).)
    7
    care” because its ATM check deposit procedures were “commercially
    unreasonable.”
    In its reply, Chase did not address the contention that it had failed to
    establish the fraudulent indorsement prong of the section 3405 defense.
    Instead, Chase highlighted the undisputed facts showing it acted with
    ordinary care in accepting the ATM check deposits. Chase also highlighted
    that Severin had not attempted to defend its negligence or UCL claims.
    Finally, Chase incorporated by reference its opposition to Severin’s cross-
    motion for summary adjudication, in which Chase argued Severin’s
    conversion claim was also barred by section 3406, which precludes recovery
    by “[a] person whose failure to exercise ordinary care substantially
    contribute[d] to . . . the making of a forged signature.” (§ 3406, subd. (a).)
    Chase asserted cursorily that “[i]t was [Severin]’s total failure to supervise its
    employee that allowed [him] to steal the checks . . . .”
    2. Severin’s Motion
    Severin moved for summary adjudication of its statutory conversion
    cause of action, arguing the undisputed facts satisfied the elements of the
    claim and established that Chase’s ordinary care defense failed as a matter of
    law. Severin supported its motion with a declaration and report from a
    banking expert who opined Chase’s check deposit procedures were
    “commercially unreasonable” and “inconsistent with general banking usage.”
    Chase opposed Severin’s motion and moved to exclude Severin’s expert
    evidence. The trial court ultimately granted the exclusion motion, and
    Severin does not challenge that ruling.
    Chase opposed Severin’s summary adjudication motion on the basis
    that the conversion claim was barred by the ordinary care defenses set forth
    in sections 3405 and 3406.
    8
    In reply, Severin argued primarily that Chase had not exercised
    ordinary care in accepting the checks at issue.
    D. Trial Court’s Rulings
    The trial court granted Chase’s summary judgment motion and denied
    Severin’s motion as moot. First, as noted, the trial court found that Severin’s
    claims regarding 34 of the checks were time-barred.
    Second, the court found that Chase’s unrebutted expert evidence
    established a section 3405 ordinary care defense to Severin’s conversion
    claim. The court did not explain how Chase had satisfied section 3405’s
    fraudulent indorsement requirement, nor did the court address Chase’s
    section 3406 argument.
    Finally, the court found that Severin’s negligence and UCL claims
    failed because (1) Severin “fail[ed] to raise any argument as to” them; (2) the
    negligence claim was also barred by the section 3405 defense; and (3) the
    UCL claim was merely derivative of Severin’s other unmeritorious claims.
    The trial court entered judgment in Chase’s favor.
    II. DISCUSSION
    Severin maintains the section 3405 and 3406 defenses do not support
    summary disposition of its conversion claim (or derivative UCL claim).7
    7      The statute on which Severin based its conversion claim (§ 3420) has
    its own “good faith” defense, but, by its express terms, it does not apply to “a
    depositary bank” like Chase. (§ 3420, subd. (c) [“[a] representative, other
    than a depositary bank, who has in good faith dealt with an instrument . . . is
    not liable in conversion,” italics added]; see § 4105 [defining a depositary
    bank as “the first bank to take an item”]; Laurie B LLC v. Wells Fargo Bank,
    N.A. (C.D.Cal., May 8, 2015, No. CV 14-3942-DMG (SSX)) 
    2015 WL 12656285
    , at p. *5 (Laurie B.) [although prior version of “conversion statute
    provided a good faith defense to depositary banks, [it] was subsequently
    eliminated in 1992”]; Official Comment on Cal. U. Com. Code, 23A pt. 2
    West’s Ann. Com. Code (2002 ed.) foll. § 3420, p. 507, comment 3 [protection
    9
    As to section 3405, Severin contends Chase failed to meet its burden of
    establishing that Oseguera fraudulently indorsed the stolen checks. We
    agree.
    As to section 3406, Severin maintains (1) Chase waived the issue by
    failing to timely and properly assert it in its own motion; (2) there are factual
    disputes about whether Severin’s alleged “failure to exercise ordinary care
    contribute[d] to . . . the making of a forged signature” (§ 3406, subd. (a));8 and
    (3) Chase failed to exercise ordinary care by accepting the stolen checks via
    automated means. We disagree that Chase waived the section 3406 defense,
    but agree that factual disputes preclude summary judgment under it.
    A. Summary Judgment Principles
    “Summary judgment is appropriate only ‘where no triable issue of
    material fact exists and the moving party is entitled to judgment as a matter
    of law.’ ” (Regents of University of California v. Superior Court (2018)
    
    4 Cal.5th 607
    , 618; see Code Civ. Proc., § 437c, subd. (c).) A defendant who
    moves for summary judgment has the initial burden of showing each alleged
    cause of action is without merit. (Code Civ. Proc., § 437c, subd. (c); Aguilar v.
    Atlantic Richfield Co. (2001) 
    25 Cal.4th 826
    , 843.) A defendant can meet this
    burden by “prov[ing] an affirmative defense, disprov[ing] at least one
    essential element of the plaintiff’s cause of action [citations], or show[ing]
    that an element of the cause of action cannot be established.” (Sanchez v.
    Swinerton & Walberg Co. (1996) 
    47 Cal.App.4th 1461
    , 1465; see Hutton v.
    for depositary banks in former version was eliminated because it “drew
    criticism from the courts, that saw no reason why a depositary bank should
    have the defense”].)
    8     Severin does not argue that section 3406 does not apply because
    Oseguera’s endorsements do not constitute “forged signature[s]” under
    section 3406. We will assume without deciding that section 3406 applies.
    10
    Fidelity National Title Co. (2013) 
    213 Cal.App.4th 486
    , 492.) “ ‘[A] defendant
    moving for summary judgment based upon the assertion of an affirmative
    defense . . . “has the initial burden to show that undisputed facts support
    each element of the affirmative defense.” ’ ” (Consumer Cause, Inc. v.
    SmileCare (2001) 
    91 Cal.App.4th 454
    , 467-468 (Consumer Cause).)
    “We review an order granting summary judgment de novo.” (Serri v.
    Santa Clara University (2014) 
    226 Cal.App.4th 830
    , 858.) “A trial court’s
    stated reasons for granting summary judgment do not bind us; we review the
    court’s ruling, not its rationale.” (Citizens for Odor Nuisance Abatement v.
    City of San Diego (2017) 
    8 Cal.App.5th 350
    , 358.)
    If an appellate court reverses summary judgment on grounds affecting
    fewer than all causes of action, the appellate court may direct the trial court
    to enter an order granting summary adjudication of the unaffected causes of
    action so long as the moving party alternatively moved for summary
    adjudication of them. (See Code Civ. Proc., § 437c, subd. (f)(2); Troyk v.
    Farmers Group, Inc. (2009) 
    171 Cal.App.4th 1305
    , 1354-1355 (Troyk).)
    B. General Principles Regarding the UCC and Checks
    In enacting sections 3405 and 3406, the Legislature adopted UCC
    sections 3-405 and 3-406, respectively, as proposed by the National
    Conference of Commissioners on Uniform State Laws. (See Edward
    Fineman, supra, 66 Cal.App.4th at p. 1121; Lee Newman, M.D., Inc. v. Wells
    Fargo Bank (2001) 
    87 Cal.App.4th 73
    , 81-82 (Lee Newman).) The Legislature
    directed that the statutes be “interpreted and applied in accordance with the
    Official Comments of the National Conference of Commissioners on Uniform
    State Laws.” (Edward Fineman, at p. 1121; see Lee Newman, at p. 82.)
    Additionally, because “one important purpose of the Uniform Commercial
    Code is to make uniform the law among the various jurisdictions . . . we
    11
    generally afford great deference to the decisions of our sister jurisdictions
    interpreting its provisions.” (Oswald Machine & Equipment, Inc. v. Yip
    (1992) 
    10 Cal.App.4th 1238
    , 1247; see § 1103, subd. (a)(3).)
    Sections 3405 and 3406 appear in division 3 of the California Uniform
    Commercial Code, which “applies to negotiable instruments.” (§ 3102, subd.
    (a).) “ ‘[N]egotiable instruments . . . is a fancy word for checks.’ ” (HH
    Computer Systems, supra, 231 Cal.App.4th at p. 227, italics omitted.) A
    transaction involving a “ ‘check typically involve three parties, (1) the
    “drawer” who writes the check, (2) the “payee”, to whose order the check is
    made out, and (3) the “drawee” or “payor bank” . . . [that] has the drawer’s
    checking account from which the check is to be paid.’ ” (Mills v. U.S. Bank
    (2008) 
    166 Cal.App.4th 871
    , 881, fn. 10 (Mills).) “ ‘After receiving the check,
    the payee typically indorses it on the back in the payee’s own name, and then
    deposits it in the payee’s account in a different bank, the “depositary bank”.
    The depositary bank credits the check to the payee’s account, and sends the
    check through the check clearing system to the payor bank for ultimate
    payment from the drawer’s account.’ ” (Ibid.)
    C. Chase Did Not Meet Its Burden to Show That Section 3405 Applies
    Section 3405 provides a bank with a “defense for accepting a check
    made out to [an] employer that has been fraudulently [i]ndorsed by [an]
    employee.” (Taubman v. USAA Federal Savings Bank (N.D.Cal. 2019) 
    408 F.Supp.3d 1053
    , 1054 (Taubman); see Lee Newman, supra, 87 Cal.App.4th at
    p. 82; § 3405, subd. (b).9) The statute allocates the risk of loss to the
    9     Section 3405, subdivision (b) states: “For the purpose of determining
    the rights and liabilities of a person who, in good faith, pays an instrument or
    takes it for value or for collection, if an employer entrusted an employee with
    responsibility with respect to the instrument and the employee . . . makes a
    fraudulent indorsement of the instrument, the indorsement is effective as the
    12
    employer when (1) “the employer ‘entrusted [the] employee with
    responsibility with respect to’ the check”; (2) the check was “fraudulently
    [i]ndorsed by the employee”; and (3) “the bank accepted the check ‘in good
    faith.’ ” (Taubman, at p. 1054, quoting § 3405, subd. (b); see Lee Newman, at
    p. 82.) “If these requirements are satisfied, the extent of the defense depends
    on the doctrine of comparative negligence. If the bank was not negligent”—
    that is, if it exercised ordinary care as defined in section 3103, subdivision
    (a)(7) (see fn. 5, ante)—“the defense is complete. If the bank was negligent,
    then it remains partially liable, with liability based on the extent to which
    the bank’s negligence ‘contributed to the loss.’ ” (Taubman, at p. 1054; see
    Lee Newman, at p. 83.)
    Section 3405 defines a “[f]raudulent indorsement” as occurring in two
    circumstances in which an employee endorses a check in a manner
    purporting to be that of the payee.10 In the circumstance at issue here,
    involving “an instrument payable to the employer,” a “[f]raudulent
    indorsement” is “a forged indorsement purporting to be that of the employer.”
    (§ 3405, subd. (a)(2), italics added.) It is sufficient if the endorsement is
    “substantially similar” to the employer’s name. (§ 3405, subd. (c).)
    indorsement of the person to whom the instrument is payable if it is made in
    the name of that person. If the person paying the instrument or taking it for
    value or for collection fails to exercise ordinary care in paying or taking the
    instrument and that failure contributes to loss resulting from the fraud, the
    person bearing the loss may recover from the person failing to exercise
    ordinary care to the extent the failure to exercise ordinary care contributed to
    the loss.” (§ 3405, subd. (b).)
    10     The entire definition reads: “ ‘Fraudulent indorsement’ means (A) in
    the case of an instrument payable to the employer, a forged indorsement
    purporting to be that of the employer, or (B) in the case of an instrument with
    respect to which the employer is the issuer, a forged indorsement purporting
    to be that of the person identified as payee.” (§ 3405, subd. (a)(2).)
    13
    In light of this definition, the courts and commentators agree that
    when an employee has endorsed a check other than in a name “purporting to
    be that of the employer” (§ 3405, subd. (a)(2)), the employee has not made a
    “fraudulent indorsement.” (See John Hancock Financial Services, Inc. v. Old
    Kent Bank (E.D.Mich. 2002) 
    185 F.Supp.2d 771
    , 773-774, 778 [no fraudulent
    indorsement where employee of “John Hancock Financial Services, Inc.”
    endorsed checks payable to employer with “Sherman and Associates
    Financial Services”]; Continental Cas. Co. v. Fifth/Third Bank (N.D.Ohio
    2006) 
    418 F.Supp.2d 964
    , 975 [no fraudulent indorsement where employee
    endorsed checks payable to employer with “missing or illegible
    endorsements”]; Willier, Inc. v. Hurt (S.D.W.Va., Dec. 31, 2007, No. CIV.A.
    5:06-CV-00547) 
    2007 WL 4613033
    , at p. *6 [no fraudulent indorsement where
    employee deposited checks payable to employer into personal account with no
    endorsement]; McMullen Oil Co. v. Crysen Ref., Inc. (In re McMullen Oil
    Co.) (Bankr.C.D.Cal. 2000) 
    251 B.R. 558
    , 565, 574-575 (McMullen) [no
    fraudulent endorsement where employee of “McMullen Oil Co.” endorsed
    checks payable to that entity with “McMullen Oil Co. Pension Plan,” italics
    added]; Laurie B, supra, 
    2015 WL 12656285
    , at p. *5 [no fraudulent
    indorsement where employee of “Laurie B LLC” endorsed checks payable to
    “Desert Underground Utilities Inc., dba Laurie B”];11 6B Lawrence’s
    Anderson on the Uniform Commercial Code (3d ed. Dec. 2020 supp.)
    Negotiable Instruments, § 3-405:11 (Anderson UCC); 4 Hawkland UCC
    Series (Dec. 2020 Update) § 3-405:1.)
    11    The Ninth Circuit reversed summary judgment in Laurie B., finding
    there was a triable issue of fact about whether the names were substantially
    similar. (Laurie B LLC v. Wells Fargo Bank N.A. (9th Cir. 2017) 
    679 Fed.Appx. 598
    .)
    14
    The courts and commentators further agree that section 3405 does not
    apply unless an employee has made a fraudulent indorsement as defined in
    the statute. (See Mills, supra, 166 Cal.App.4th at p. 889 [“The instant
    case . . . does not fall within the scope of section 3405, as it does not concern
    fraudulent [i]ndorsements made by an employee”];12 McMullen, 
    supra,
     251
    B.R. at pp. 574-575 [section 3405 “covers only [the] two categories of
    fraudulent indorsements” defined in the statute]; Anderson UCC, § 3-405:10
    [“In order for this section to be applicable, there must be a fraudulent
    indorsement.”]; see also § 3405, com. 1 [section 3405 “is addressed to
    fraudulent indorsements” and “covers [the] two categories” specified in the
    definition].)
    Although Chase inexplicably failed to address the fraudulent
    indorsement prong in its summary judgment papers or in its briefing on
    appeal, Chase’s appellate counsel acknowledged at oral argument that, to
    establish it was entitled to summary judgment based on the section 3405
    defense, Chase bore the initial burden of establishing that Oseguera
    fraudulently indorsed the stolen checks. (See Consumer Cause, supra, 91
    Cal.App.4th at pp. 467-468 [a defendant moving for summary judgment
    “ ‘ “has the initial burden to show that undisputed facts support each element
    of [an] affirmative defense.” ’ ”], italics added.) We conclude Chase did not
    meet this burden.
    12     The parties debate in their briefing the significance of our court’s
    decision in Mills. Mills is factually distinguishable because it did not involve
    employee fraud (it involved checks deposited by a payee entity into its
    affiliate’s bank account). (Mills, supra, 166 Cal.App.4th at p. 876.) The case
    is nevertheless instructive because it supports the general proposition that
    section 3405 applies only when an employee has made a fraudulent
    indorsement. (Mills, at p. 889.)
    15
    Quite simply, Chase never addressed the fraudulent indorsement prong
    of the section 3405 defense in its summary judgment papers. Neither Chase’s
    briefing nor separate statement of undisputed material facts addressed the
    manner in which Oseguera endorsed the checks (i.e., with what appear to be
    his own name or initials), or explained how those endorsements satisfied the
    statutory definition of a fraudulent indorsement (i.e, how they “purport[ed] to
    be that of the employer” (§ 3405, subd. (a)(2)). Instead, Chase skipped ahead
    to the ordinary care analysis. But none of the cases Chase cited on that issue
    in the trial court or on appeal involved section 3405’s fraudulent indorsement
    requirement. (See Story Road Flea Market, Inc. v. Wells Fargo Bank (1996)
    
    42 Cal.App.4th 1733
    , 1737 [addressing § 4406, which has no fraudulent
    indorsement requirement]; Espresso Roma Corp. v. Bank of America (2002)
    
    100 Cal.App.4th 525
    , 527 [same]; National Union Fire Ins. Co. v. Wells Fargo
    Bank, N.A. (C.D.Cal. Mar. 16, 2005, No. CV 03-2452 NM (CTx)) 
    2005 WL 6459866
     [addressing only motion to exclude experts]; National Union v. Wells
    Fargo Bank (C.D.Cal. June 24, 2005, No. CV 03-02452-NM(CTx)) 
    2005 WL 6524450
     [addressing motion for reconsideration of expert issues and
    summary judgment ruling on good faith/ordinary care].)13 “[C]ases are not
    authority for issues not raised or decided.” (Mintz v. Blue Cross of California
    (2009) 
    172 Cal.App.4th 1594
    , 1607.)
    At oral argument, Chase’s appellate counsel finally advanced a theory
    as to how the fraudulent indorsement prong was satisfied: Oseguera must
    13    Both in the trial court and on appeal, Chase knowingly and improperly
    discussed an unpublished Court of Appeal opinion. (See Cal. Rules of Court,
    rule 8.1115 [unpublished Court of Appeal opinions “must not be cited or
    relied on by a . . . party in any other action”]; Olive v. General Nutrition
    Centers, Inc. (2018) 
    30 Cal.App.5th 804
    , 816.) We have not considered the
    improperly cited opinion.
    16
    have “intended” that his “squiggle[d]” name or initials on the stolen checks
    “be interpreted by Chase to be that of the employer.” This argument fails for
    two reasons. First, Chase forfeited it by raising it for the first time at oral
    argument. (See In re I.C. (2018) 
    4 Cal.5th 869
    , 888, fn. 5.) Second, even
    assuming without deciding that Oseguera’s intent is relevant to the issue,
    Chase has cited no evidence—let alone undisputed evidence—establishing his
    intent.
    More generally, Chase argues it is “self-evident” from a policy
    perspective that Severin should bear the losses caused by its employee. In
    support, Chase cites Lee Newman, which observed: “As explained in the
    Official Comment to the corresponding Uniform Commercial Code provision,
    ‘Section 3-405 is based on the belief that the employer is in a far better
    position to avoid the loss by care in choosing employees, in supervising them,
    and in adopting other measures to prevent forged indorsements on
    instruments payable to the employer . . . .’ ” (Lee Newman, supra, 87
    Cal.App.4th at p. 83.) But Chase’s argument ignores the fact that the cited
    Official Comment begins by clarifying that “[s]ection 3-405 is addressed to
    fraudulent indorsements,” which include “indorsements made in the name of
    the employer.” (Official Comments on Cal. U. Com. Code, 23A, pt. 2 West’s
    Ann. Com. Code (2002 ed.) foll. § 3405, p. 426, comment 1 (§ 3405, com. 1).)
    We agree with section 3405’s risk-shifting policy as it relates to
    fraudulent indorsements. In that context, in which an employee’s
    endorsement “purport[s] to be that of the” employer or its payee, the
    employer is better situated than the bank to prevent or detect fraud—all the
    bank sees is a seemingly proper endorsement by the payee. But in the context
    presented here, in which an employee endorsed checks made payable to his
    employer in a name that does not appear on its face to be that of the
    17
    employer, the bank is equally well-suited to detect the apparent mismatch
    and there is no need to shift the risk of loss to the employer.
    In short, because Chase did not meet its burden to show that Oseguera
    “fraudulent[ly] indorse[d]” (§ 3405, subd. (a)(2)) the stolen checks, Chase is
    not entitled to summary judgment under section 3405.
    D. Fact Disputes Preclude Summary Judgment Under Section 3406
    Section 3406 provides an ordinary care defense in broader
    circumstances than section 3405.14 (See Taubman, supra, 408 F.Supp.3d at
    p. 1055 [section 3406 “potentially applies in any situation (regardless of the
    identity of the victim and the perpetrator of the fraud) where a bank accepts
    an altered or forged check”].) Section 3406 provides a “defense to liability for
    accepting a fraudulent check if: (i) the victim’s own failure to exercise
    ordinary care was a cause of the fraud; and (ii) the bank took the check in
    good faith.” (Taubman, at p. 1055.) “As with Section 3405, if these
    requirements are satisfied, the extent of the defense depends on comparative
    negligence: if the bank was not negligent”—that is, if it exercised ordinary
    care—“it is free from liability; if the bank was also negligent, the loss is
    14     Section 3406 states: “(a) A person whose failure to exercise ordinary
    care contributes to an alteration of an instrument or to the making of a
    forged signature on an instrument is precluded from asserting the alteration
    or the forgery against a person who, in good faith, pays the instrument or
    takes it for value or for collection. [¶] (b) Under subdivision (a), if the person
    asserting the preclusion fails to exercise ordinary care in paying or taking the
    instrument and that failure contributes to loss, the loss is allocated between
    the person precluded and the person asserting the preclusion according to the
    extent to which the failure of each to exercise ordinary care contributed to the
    loss. [¶] (c) Under subdivision (a), the burden of proving failure to exercise
    ordinary care is on the person asserting the preclusion. Under subdivision
    (b), the burden of proving failure to exercise ordinary care is on the person
    precluded.”
    18
    allocated between the bank and the victim ‘according to the extent to which
    the failure of each to exercise ordinary care contributed to the loss.’ ”
    (Taubman, at p. 1055.)
    Severin contends Chase waived its right to assert the section 3406
    defense by waiting until its summary judgment reply brief to do so. We are
    not persuaded. “It is well established that the trial court’s consideration of
    additional reply ‘evidence is not an abuse of discretion so long as the party
    opposing the motion for summary judgment has notice and an opportunity to
    respond to the new material.’ ” (Jacobs v. Coldwell Banker Residential
    Brokerage Co. (2017) 
    14 Cal.App.5th 438
    , 449.) In the context of the parties’
    cross-motions (in which Chase raised section 3406 in its opposition to
    Severin’s motion about three weeks before raising it in reply), and absent a
    request by Severin for leave to file a surreply, we find no waiver by Chase.
    (See Jacobs, at p. 449 [by failing “to ask the trial court for permission to
    submit responsive evidence or to file a sur-reply, . . . or to even object to the
    court’s consideration of the evidence, plaintiffs forfeited any claim of a due
    process violation”].)
    We are similarly unpersuaded by Severin’s assertion that Chase did not
    comply with the summary judgment statute’s procedure for incorporating
    items by reference. (See Code Civ. Proc., § 437c, subd. (b)(7) [“An
    incorporation by reference of a matter in the court’s file shall set forth with
    specificity the exact matter to which reference is being made and shall not
    incorporate the entire file.”].) Chase identified in its reply brief the specific
    materials within the court’s files that it sought to incorporate. This was
    sufficient.
    Turning to the substance of the section 3406 defense, we agree with
    Severin that disputed material facts preclude summary judgment. Whether
    19
    a party “fail[ed] to exercise ordinary care” and whether such a failure
    “substantially contribute[d]” to the forging of an instrument ordinarily are
    questions for the trier of fact to resolve. (See § 3406, com. 1 [“No attempt is
    made to define particular conduct that will constitute ‘failure to exercise
    ordinary care [that] substantially contributes to an alteration.’ Rather,
    ‘ordinary care’ is defined in Section 3-103(a)(7) in general terms. The question
    is left to the court or the jury for decision in the light of the circumstances in
    the particular case,” italics added]; Atlas Vegetable Exchange, Inc. v. Bank of
    America (1970) 
    10 Cal.App.3d 868
    , 876 [whether employer was negligent for
    failing to implement measures to prevent bookkeeper from forging checks
    was an issue of fact for jury]; Elden v. Merrill Lynch, Pierce, Fenner & Smith
    Inc. (S.D.N.Y., Mar. 30, 2011, No. 08 Civ. 8738(RJS)) 
    2011 WL 1236141
    , at
    p. *10 [“[S]ummary judgment is rarely warranted on this issue.”].)
    Chase cites evidence that would allow a jury to find that Severin failed
    to exercise ordinary care, thereby substantially contributing to Oseguera
    forging endorsements on the stolen checks. For example, Asad acknowledged
    Oseguera—unlike other lot managers—“was 100 percent responsible for
    receiving the car, entering the information, receiving the check and then
    releasing the car.” And after Severin discovered the embezzlement, Severin
    implemented additional controls to reduce the likelihood it would happen
    again, suggesting Severin was aware that its prior measures were
    inadequate.
    But Severin cites evidence that would allow the jury to reach a contrary
    conclusion. Asad explained that Oseguera had more authority than other lot
    managers in part because the others did not have access to the computer
    needed to generate invoices, but also because Oseguera was a trusted
    employee and Severin’s first hire. A subsequent background check on
    20
    Oseguera came back clean. Asad compared the checks and invoices Oseguera
    brought to him each day (“he would run all that through [me]”). And Asad
    testified it “blew out [his] mind . . . that somebody could cash a check written
    to somebody else,” and Oseguera “could have come up with something else” to
    circumvent Severin’s new precautions.
    On this record, we cannot say as a matter of law that a family-owned
    business “fail[ed] to exercise ordinary care” in supervising its long-time,
    trusted employee, who was intentionally stealing checks and misfiling
    corresponding invoices.
    Accordingly, Chase is not entitled to summary judgment under section
    3406.
    E. Status of Claims
    Because Severin has not challenged the trial court’s rulings as to the
    negligence cause of action or the claims based on the 34 time-barred checks,
    we do not disturb the trial court’s rulings as to those claims, and will direct
    the trial court to grant summary adjudication on them in Chase’s favor. (See
    Troyk, supra, 171 Cal.App.4th at pp. 1354-1355.)
    And because Severin’s UCL claim is derivative of its conversion claim,
    and because summary judgment was erroneously granted as to the
    conversion claim, the UCL claim will be reinstated.
    DISPOSITION
    The judgment is reversed. The trial court is directed to vacate its order
    granting summary judgment, and to enter a new order granting summary
    adjudication to Chase on Severin’s negligence cause of action and all claims
    based on the 34 time-barred checks (identified at page 425 of Appellant’s
    Appendix), and denying summary adjudication to Chase on Severin’s
    21
    conversion and UCL causes of action. Severin is entitled to its costs on
    appeal.
    HALLER, Acting P. J.
    WE CONCUR:
    AARON, J.
    IRION, J.
    22
    Appendix A
    23
    

Document Info

Docket Number: D077409

Filed Date: 6/9/2021

Precedential Status: Precedential

Modified Date: 6/9/2021