NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2010-00096471-CU-NP-CTL, Luis R. Vargas, Judge.
McCONNELL, P. J.
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. Heston appeals a judgment of dismissal entered after the court sustained the Bank's demurrer without leave to amend. We affirm the judgment.
Heston also represents himself on appeal.
One complaint alleged the imposition of a $7 service fee; all other service fees were $5.
"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. , Inc. v. Travelers Indemnity Co. (2006) 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.' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
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.)
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 customer for damages proximately caused 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; Wade v. Southwest Bank (1962) 211 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.' " (Ibid.)
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.
Given our holding under state law, we are not required to address the bank's discussion of federal banking law. We deny the bank's related request for judicial notice as unnecessary.
The judgment is affirmed. The defendants are entitled to costs on appeal.
WE CONCUR: McINTYRE, J., O'ROURKE, J.