Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC076388, Stanley M. Weisberg, Judge.
Law Offices of Roger P. Noorthoek and Roger P. Noorthoek for Plaintiff and Appellant.
Troygould PC, Russ M. Fukano, Kenneth J. MacArthur and Eric L. Compere for Defendants and Respondents.
KRIEGLER, J.
A property owner paid the balance of a loan secured by a trust deed by check. Although the check was written for the full amount due on the loan and there were sufficient funds in the account to cover the check, the property owner’s bank erroneously processed the check for exactly $50,000 less than its face amount. After learning of the underpayment, the property owner withdrew the remaining funds from his bank without paying the lender the full amount due. When the lender instituted foreclosure proceedings, the property owner filed the instant action against his bank and the lender’s bank, along with numerous other defendants not parties to this appeal.
Plaintiff and appellant Anatoli Alexeenko, the property owner, appeals from the judgment of dismissal entered in favor of his bank, Washington Mutual Bank, FA (WaMu), and the lender’s bank, JPMorgan Chase Bank, NA (Chase), after a demurrer was sustained without leave to amend on plaintiff’s second amended complaint (SAC).
Plaintiff makes two procedural arguments on appeal. First, he argues Chase’s demurrer was not filed within ten days of the filing of the SAC, as required by rule 3.1320(j) of the California Rules of Court. Second, he contends Chase’s demurrer was not timely set for hearing within 35 days as required by rule 3.1320(d).
Plaintiff’s brief is interspersed with arguments in its various subdivisions. Consistent with rule 8.204 of the California Rules of Court, we address only those issues properly presented in the argument portion of the opening brief.
All citations to rules are to the California Rules of Court.
As substantive arguments, plaintiff contends his complaint sufficiently alleged causes of action against WaMu and Chase. Among his contentions, plaintiff asserts WaMu and Chase are liable for damages because their conduct constituted an improper dishonoring of the check, citing to Weaver v. Bank of America (1963) 59 Cal.2d 428 (Weaver), California Uniform Commercial Code section 4402, and Civil Code section 1708. Plaintiff further contends the trial court was under a duty to ignore “extrinsic evidence” at the demurrer stage and the trial court erred when it failed to consider the contents of the SAC as opposed to the titles of the causes of action. Finally, plaintiff asks this court to grant him leave to amend on appeal. We affirm the judgment.
Allegations of the SAC
Plaintiff filed his SAC against WaMu and Chase, and other defendants not parties to this appeal, on July 31, 2007. Plaintiff’s residence in Van Nuys was the subject of a loan secured by a trust deed in favor of CIT, with a balance of $70,164.58 as of November 2005. On November 27, 2005, plaintiff paid the entire balance of the loan to CIT by way of check drawn on his WaMu account.
CIT is one of the named defendants but is not a party to this appeal.
WaMu honored plaintiff’s check in the amount of $20,164.58—exactly $50,000 less than its face value. The reduced sum was delivered to Chase, which was CIT’s bank, and to CIT.
WaMu and Chase take the position the error was due to under encoding of the check, which is a logical inference under the circumstances. However, there is nothing in the SAC, or any earlier complaint, that alleges there was an under encoding.
CIT advised plaintiff in December 2005 that his loan had been paid in full. A full reconveyance of the trust deed was recorded. Plaintiff was informed by CIT on February 9, 2006, that he had breached the loan agreement because his check had been negotiated for $50,000 less than its face amount. Concerned with his bank’s handling of the check, plaintiff withdrew the balance of his funds from WaMu. At the time notice was given of the breach by plaintiff, WaMu and Chase knew he had tendered the entire sum of the loan by check.
WaMu’s failure to honor the full value of the check constituted a dishonor of the check. Plaintiff demanded that CIT accept delivery of the full amount of the funds covered by the check, but CIT refused. In October 2006, a foreclosure notice was recorded on the property, even though CIT knew plaintiff tendered full payment and was not in default.
Chase was named as a defendant in the following causes of action of the SAC: sixth—fraud; seventh—conspiracy re: fraud; eighth—negligent misrepresentation; ninth—intentional infliction of emotional distress; tenth—negligent infliction of emotional distress; fourteenth—collecting bank violation of California Commerce Code; and fifteenth—the doctrine of tort of another.
WaMu was named as a defendant in the following causes of action: twelfth—payor bank violation of California Uniform Commercial Code; and thirteenth—the doctrine of tort of another.
WaMu and Chase’s Demurrers to the SAC and the Trial Court’s Ruling
Chase filed a demurrer to the second amended complaint on February 6, 2008. WaMu joined in the demurrer. Plaintiff opposed the demurrers on procedural and substantive grounds. The trial court sustained the demurrers without leave to amend.
DISCUSSION
I. Timeliness of the Demurrers and Hearing on the Demurrers
Plaintiff’s procedural arguments regarding the timing of the filing of Chase’s demurrer and the date of the hearing on the demurrer are without merit. Plaintiff argues that his SAC was filed on July 31, 2007, and under rule 3.1320(j)(2), Chase had only ten days to file its demurrer, but it did not do so until September 10, 2007. Further, plaintiff argues hearing on the demurrer was set for October 18, 2007, which was more than 35 days after its filing, beyond the time permitted under rule 3.1320(d). Chase does not dispute these dates or the existence of the rules, but argues plaintiff consented to the filing of the demurrer beyond the ten-day period, the dates are not jurisdictional, and the trial court had the discretion to entertain the demurrer. Chase is correct.
These issues were raised in plaintiff’s ex parte motion for an order striking Chase’s demurrer. Chase attached to its opposition to the motion a letter from plaintiff’s counsel, allowing Chase until September 8, 2007, to file its demurrer. That date was a Saturday, with the next court day being September 10, 2007. The demurrer was filed September 10, 2007, which by law was within the time granted by plaintiff. (Code Civ. Proc., §§ 12a [if time to do an act required by law falls on a holiday, including a Saturday, the time to perform the act is extended to next day], 126 [if a county office is closed for a whole day, that day shall be considered a holiday], 1054, subd. (b) [parties may stipulate to extend time for filing of a pleading].) Moreover, the trial court has broad discretion to entertain a demurrer filed beyond a statutory period. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280.) Considering that plaintiff granted Chase an extension of time to file the demurrer and it was filed within that extension, the trial court did not abuse its discretion in denying the ex parte motion to strike the demurrer on timeliness grounds.
Plaintiff is correct that rule 3.1320(d) provides that a demurrer “must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter. For good cause shown, the court may order the hearings held on an earlier or later day on notice prescribed by the court.” In this case, the demurrer was set for hearing 38 days after it was filed—merely three days beyond the period in the rule. The trial court acted well within its considerable discretion in considering the merits of the demurrer. (McAllister v. County of Monterey, supra, 147 Cal.App.4th at p. 280.)
Assuming there was a violation of the time periods set forth in the rules, plaintiff fails to demonstrate actual prejudice as to either of his timeliness contentions, which precludes reversal on appeal. “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Code Civ. Proc., § 475; see also Cal. Const., art. VI, § 13.)
II. Sufficiency of the Complaint
A. Standard of Review
“When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Courts must also consider judicially noticed matters. (Ibid.) In addition, we give the complaint a reasonable interpretation, and read it in context. (Ibid.) If the trial court has sustained the [demurrer], we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Ibid.) If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. Improper Consideration of Extrinsic Evidence and Failure to Look Beyond the Titles of the Causes of Action
Plaintiff argues the trial court had a duty to ignore “extrinsic evidence” offered by WaMu and Chase in their demurrers. He also argues the trial court was under a duty to consider the content of the SAC, instead of focusing on the titles of the causes of action. Neither contention requires reversal.
As set forth above, the standard of review on appeal of an order sustaining a demurrer without leave to amend is well settled. Although plaintiff complains that the trial court considered “extrinsic evidence” at the demurrer stage, the argument is conclusory as plaintiff’s brief fails to identify even one extrinsic fact considered by the trial court. In addition, plaintiff does not explain how he was prejudiced by the trial court’s purported consideration of extrinsic evidence. It is plaintiff’s burden as the appealing party to demonstrate both error and prejudice, and his failure to do so precludes reversal on appeal. (Cal. Const., art. VI, § 13.)
Plaintiff’s further argument that the trial court should have looked beyond the titles of the causes of action in ruling on the demurrers suffers from the same infirmity as the contention the trial court considered extrinsic evidence. Plaintiff fails to point to any instance in which the trial court purportedly ignored the content of the pleadings or how he was prejudiced by the asserted error.
Because plaintiff argues the trial court erred in sustaining the demurrers, we turn to the propriety of the trial court’s order as to each cause of action against Chase and WaMu.
B. Liability of Chase for Negligence
i. Negligent Misrepresentation
In the eighth cause of action for negligent misrepresentation, plaintiff alleged that Chase made representations to plaintiff without information or personal knowledge. The trial court sustained the demurrer to this cause of action on the ground plaintiff did not plead a misrepresentation or reliance. The trial court was correct.
“The elements of a cause of action for fraud and a cause of action for negligent misrepresentation are very similar. Pursuant to Civil Code section 1710, both torts are defined as deceit. However, the state of mind requirements are different. ‘Fraud is an intentional tort, the elements of which are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. [Citation.]’ [Citation.] Negligent misrepresentation lacks the element of intent to deceive. Therefore, ‘“[w]here the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.” [Citation.]’ (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407-408, quoting 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 720, p. 819.)” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 85-86.)
Plaintiff’s eighth cause of action does not set forth any misrepresentation by Chase, nor does it allege that plaintiff relied on the misrepresentation, nor does it explain how he was damaged. The pleading of this cause of action was woefully defective.
ii. Negligent Infliction of Emotional Distress
In his tenth cause of action, plaintiff alleges negligent infliction of emotional distress against Chase. The trial court sustained the demurrer to this cause of action because plaintiff alleged only a potential harm to property, but did not allege emotional distress. The trial court’s reading of the pleading was accurate and it conclusion was correct that the pleading was insufficient as a matter of law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 554 [“‘No California case has allowed recovery for emotional distress arising solely out of property damage’”]; Mercado v. Leong (1996) 43 Cal.App.4th 317, 324.)
C. Liability of Chase for Intentional Conduct
i. Fraud Causes of Action
The sixth and seventh causes of action against Chase are for fraud and conspiracy to commit fraud. These causes of action allege that Chase and other defendants intentionally caused less than the face value of the check to be removed from plaintiff’s WaMu account for delivery to Chase for the purpose of extorting and coercing money from plaintiff and divesting him of ownership in the residential property.
The trial court properly sustained the demurrer to these two fraud causes of action because plaintiff did not allege reliance on any act committed by Chase. “The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.)
Plaintiff did not merely fail to plead justifiable reliance—his own pleading contradicted that element of the fraud causes of action. Plaintiff did not allege he relied on any representation by Chase. Instead, plaintiff alleged that he became aware the check was not paid in the full amount, did not pay the balance due on the loan, and withdrew the remaining funds from the WaMu account. It was plaintiff’s withdrawal of his funds from the WaMu account that prevented correction of the error, not his reliance on any misrepresentation or act of fraud by Chase.
In addition, we note that the fraud pleading lacked the required specificity. Allegations of fraud must be plead factually and specifically in order to allow the court to determine if there is a foundation for an allegation of fraud. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217; Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 240.) Plaintiff’s fraud allegations contain no specifics as to what individual made specific false representations.
ii. Intentional Infliction of Emotional Distress
The ninth cause of action for intentional infliction of emotional distress against Chase fails to allege outrageous conduct by Chase, and the trial court sustained the demurrer on this basis.
The tort of intentional infliction of emotional distress requires (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) To be considered outrageous, a defendant’s conduct must be so extreme as to exceed all bounds tolerated in a civilized community and be intended to inflict injury or engaged in with the realization injury will result. (Hughes v. Pair, supra, at pp. 1050-1051.)
Plaintiff’s allegations do not even remotely approach the type of outrageous conduct required for intentional infliction of emotional distress. At most, plaintiff has alleged his check was not fully paid and Chase received that deficient payment. This is insufficient as a matter of law for liability on a theory of intentional infliction of emotional distress.
iii. Collecting Bank Violation of the California Uniform Commercial Code
The fourteenth cause of action alleged “collecting bank violation of California Commercial Code” against Chase. Plaintiff argues he stated a cause of action against Chase because Chase improperly took $50,000 less than the face value of his check to CIT from the WaMu account. Plaintiff contends that under the California Uniform Commercial Code, Chase had a mandatory duty to use reasonable care in collecting checks issued by plaintiff to CIT in their full amount, the failure to do so was a breach of ordinary care, and plaintiff did not authorize the taking of less than the full sum of the check from his WaMu account. According to plaintiff, this pleading is also sufficient to allege a cause of action for violation of Civil Code section 1708.
We agree with the trial court’s finding that plaintiff failed to state a cause of action. To the extent plaintiff couches this cause of action in terms of negligence—relying on Chase’s purported duty to use reasonable care and breach of that duty—it fails, as Chase had no duty as to a noncustomer such as plaintiff. (Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 478-479 (Software Design).) “Recent cases have held that absent extraordinary and specific facts, a bank does not owe a duty of care to a noncustomer. (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1628 [no showing that noncustomer was alter ego of, or had personally guaranteed debts of, bank’s customer]; Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1076 [no duty to corporate president not a party to corporate account, nor an intended beneficiary thereof].)” (Software Design, supra, 49 Cal.App.4th at p. 479.)
According to the SAC, Chase was CIT’s bank and received $20,164.58 from WaMu, which was $50,000 less than the face amount of the check to CIT. Plaintiff alleged he was a customer of WaMu, but not a customer of Chase. Plaintiff’s lack of relationship to Chase is fatal to his negligence cause of action. A customer is “a person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank.” (Cal. U. Com. Code, § 4104, subd. (a)(5).) Because Chase had no contractual relationship with plaintiff and there were no extraordinary facts to justify imposition of a duty upon Chase, plaintiff failed to state a cause of action in negligence.
Second, plaintiff cannot establish damages as to this cause of action, as the measure of damages under California Uniform Commercial Code section 4103 “for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount that could not have been realized by the exercise of ordinary care. If there is also bad faith it includes any other damages the party suffered as a proximate consequence.” (Id., subd. (e).) Plaintiff did not lose anything when Chase received $20,164.58 from WaMu. Plaintiff’s additional $50,000 remained in his WaMu account after the underpayment, until plaintiff himself removed the funds. In this case, the error was in plaintiff’s favor, and it was due to his own conduct in removing those funds that the full amount of funds could not be delivered from WaMu to Chase. There are no facts alleged to suggest that Chase acted in bad faith by merely crediting CIT with the exact amount paid on the check by WaMu. Chase is not liable to plaintiff under California Uniform Commercial Code section 4103 for its handling of the funds received from WaMu.
Third, Civil Code section 1708 does not create a free-standing cause of action. Civil Code section 1708 provides as follows: “Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.” The California Supreme Court has rejected the notion that Civil Code section 1708 creates a private cause of action. (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 327-328; see Ley v. State (2004) 114 Cal.App.4th 1297, 1306 [§ 1708 does not authorize a cause of action for damages]; County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, 865 [California courts reject the concept of universal duty].)
To the extent plaintiff argues he stated a cause of action under Civil Code section 3523’s language that “For every wrong there is a remedy,” his reliance is misplaced. “This section, however, does not create substantive rights.” (San Luis Obispo v. Abalone Alliance, supra, 178 Cal.App.3d at p. 864-865.) The maxim of jurisprudence in Civil Code section 3523 applies only to wrongs recognized by the law. (Mega Life and Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1526-1527.)
The demurrer was properly sustained to the fourteenth cause of action.
iv. The Tort of Another Cause of Action
The fifteenth cause of action alleged “tort of another doctrine” against Chase. The cause of action repeated the allegations from the fourteenth cause of action for “collecting bank violation of California Commercial Code” and alleged that Chase’s conduct compelled plaintiff to file this action. As a result, plaintiff alleged he is entitled to compensation for loss of time, attorney fees, expenditures, and all other damage.
As pled, plaintiff’s tort of another claim is dependent on his success on the fourteenth cause of action. We have held that the trial court properly sustained the demurrer to the fourteenth cause of action and that none of his causes of action against Chase were well pled. The trial court properly sustained the demurrer as to the fifteenth cause of action.
D. Liability of WaMu for Dishonor of Check
Plaintiff argues the trial court erred in sustaining the demurrer to the twelfth cause of action against WaMu for “dishonor” of a check. Plaintiff reasons that WaMu breached its duty to act with reasonable care when it failed to honor the check in its full amount, as the taking of a lesser amount constituted a misappropriation of funds by Chase under Weaver, supra, 59 Cal.2d 428. Plaintiff argues Weaver has been codified in California Uniform Commercial Code section 4402, and he is entitled to damages under that statute.
i. Dishonor of a Check
The definition of dishonor of a check is found in California Uniform Commercial Code section 3502, which provides in pertinent part as follows: “(b) Dishonor of an unaccepted draft other than a documentary draft is governed by the following rules: (1) If a check is duly presented for payment to the payor bank otherwise than for immediate payment over the counter, the check is dishonored if the payor bank makes timely return of the check or sends timely notice of dishonor or nonpayment under Section 4301 or 4302, or becomes accountable for the amount of the check under Section 4302.”
As WaMu points out, plaintiff’s check was not dishonored within the definitions of California Uniform Commercial Code section 3502. WaMu did not return the check, did not send notice of dishonor or notice of nonpayment, nor did it accept responsibility for late return of the check under California Uniform Commercial Code section 4302. WaMu’s underpayment of the check is not a dishonor. (Azalea City Motels, Inc. v. First Alabama Bank of Mobile (1989) 551 So.2d 967, 975-976.)
Plaintiff, in his reply brief, recognizes that his allegations do not meet the definition of dishonor in California Uniform Commercial Code section 3502. Plaintiff argues that regardless of the statutory definition of dishonor, he alleged a common law negligence claim for WaMu’s mishandling of his check.
There is no dispute WaMu had a duty of reasonable care to plaintiff. “Thus it is said that ‘[t]he relationship between a payor bank and its customers is that of debtor and creditor, being founded upon contract, and the bank is under a duty to pay checks only in strict accordance with its customer's orders. [Citation.] The bank is without authority to charge its customer's account with an unauthorized order, and payment of such is said to have been made out of the bank's own funds.’ (Danning v. Bank of America [(1984)] 151 Cal.App.3d [961,] 969.)” (Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1062.)
It does not follow, however, that because WaMu had a duty of reasonable care to plaintiff, and it processed his check to CIT in an amount less than stated on its face, that plaintiff alleged facts supporting a cause of action for negligence. “‘[T]he well-known elements of any negligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]’ (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) Plaintiff’s pleading is deficient in two respects to the extent he relied on a common law negligence cause of action—proximate cause and damages.
As earlier noted, plaintiff was undercharged by $50,000 on the check he tendered to CIT to pay off his loan. That $50,000 remained in plaintiff’s WaMu account. He suffered no damage at the time of the underpayment, because he retained unfettered access to the money on deposit at WaMu. To the extent plaintiff was subjected to the costs of litigation, those costs were proximately caused by plaintiff’s own conduct, as he was the one who withdrew the $50,000 from the WaMu account without paying the balance owed to CIT.
ii. Weaver and California Uniform Commercial Code Section 4402
Plaintiff argues he stated a cause of action against WaMu and Chase under California Uniform Commercial Code section 4402 and Weaver, supra, 59 Cal.2d 428.
California Uniform Commercial Code section 4402 provides in pertinent part as follows: “(a) Except as otherwise provided in this division, a payor bank wrongfully dishonors an item if it dishonors an item that is properly payable, but a bank may dishonor an item that would create an overdraft unless it has agreed to pay the overdraft. (b) A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. Liability is limited to actual damages proved and may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.”
As noted earlier, the word “dishonor” is defined in California Uniform Commercial Code section 3502, and we give the same definition to “dishonor” in California Uniform Commercial Code section 4402. “‘Generally, identical words in different parts of the same act or in different statutes relating to the same subject matter are construed as having the same meaning.’ (Chandis Securities Co. v. City of Dana Point (1996) 52 Cal.App.4th 475, 486.)” (People v. Contreras (1997) 55 Cal.App.4th 760, 764; see H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 722-723 [definition of contracts for sale given same meaning in different sections of the Cal. U. Com. Code].)
We have held that plaintiff did not plead facts to support a cause of action for dishonor of his check under California Uniform Commercial Code section 3502. The same result necessarily applies under California Uniform Commercial Code section 4402.
Finally, plaintiff’s reliance on Weaver, supra, 59 Cal.2d 428 is misplaced. In Weaver, the plaintiff alleged that her bank refused to pay a check, which was covered by sufficient funds in her account, by giving notice that the account was closed. The plaintiff was later arrested on a warrant resulting from the bank’s erroneous dishonor of the check. Weaver held that the plaintiff had stated a cause of action for damages in both tort and contract flowing from her arrest due to the wrongful dishonor of her check within the meaning of the predecessor statute to California Uniform Commercial Code section 4402. (Weaver, supra, at pp. 435-438.)
Unlike the situation in Weaver, plaintiff’s check was not dishonored, but instead was paid in an amount less than its face value. Plaintiff’s account at WaMu continued to hold the funds not paid by the check until the time plaintiff withdrew the funds. Plaintiff was not arrested wrongfully, nor did he suffer any damages until the point that plaintiff refused to pay the sum he indisputably owed. There is nothing in the holding of Weaver that supports any of plaintiff’s causes of action, nor did Weaver give plaintiff the right to avoid his obligation to pay the full amount due on the loan.
III. Leave to Amend
Plaintiff contends that he be allowed to file an amended complaint if we hold that the trial court properly sustained the demurrer. Although this court has the authority to grant leave to amend on appeal, there is no basis for doing so in this case.
It is plaintiff’s burden to demonstrate the manner in which the complaint might be amended, and he has failed to do so here and in the trial court. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) In addition, the premise of plaintiff’s action—that he is somehow the wronged party although he did not pay his loan in full and withdrew the very funds that he intended to be used to cover that debt from his bank—speaks volumes as to the lack of merit to this lawsuit. It is time to put this meritless action to rest.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Washington Mutual Bank, FA and JPMorgan Chase Bank, NA.
We concur: TURNER, P. J., ARMSTRONG, J.