Huntmix, Inc. v. Bank of America

Plaintiff Huntmix, Inc., appeals from the judgment for defendant Bank of America National Trust & Savings Association after defendant’s demurrer to the complaint was sustained without leave to amend.

According to the allegations of the complaint, plaintiff received a check in the amount of $22,415.27 drawn on a Black Paving Company, Inc. account with defendant. The check was deposited in plaintiffs bank which presented it to defendant on July 12, 1979, “said check having previously been dishonored for lack of sufficient funds.” “Said check was not paid, returned or notice of dishonor given within [the] time period specified in Commercial Code Section 4302.”

The trial court sustained the demurrer without leave to amend, stating: “Once the check was dishonored, there appears to be no logical reason to expect each re-presentment to be treated like the initial presentment. (Dicta in Bank of America v. Security Pacific 23 CA 3 638 (1978) citing Leaderbrand v. Central State Bank of Wichita 202 Kan 450 (1969).”

The order sustaining the demurrer was implemented by an order of dismissal under the provisions of section 581, subdivision (3), of the Code of Civil Procedure. This…