Burns

Plaintiff Brian P. Bums appeals from a judgment in favor of defendant The Neiman Marcus Group, Inc. (Neiman Marcus), after its general demurrer to the second amended complaint was sustained without leave to amend. Plaintiff seeks to recover damages arising from an employee’s fraudulent use of checks drawn on his personal checking account to make payments on the employee’s Neiman Marcus store credit card accounts. Plaintiff argues that he has alleged sufficient facts requiring the reinstatement of his causes of action for common law negligence or, in the alternative, a statutory cause of action pursuant to California Uniform Commercial Code, *483 section 3406, subdivision (b), 1 and a related request for an accounting. We disagree and, accordingly, affirm.

FACTUAL AND PROCEDURAL BACKGROUND 2

As more fully set forth in the operative complaint, plaintiff alleges that Carol Young 3 was employed as plaintiffs secretary, and throughout the relevant time period, her base salary never exceeded the sum of $75,000. Between 1995 and 2000, Young opened several credit card accounts with Neiman Marcus. In the three-year period prior to 2006, Young spent approximately $1 million at…

I respectfully dissent. I agree with the majority that the amended complaint does not state a cause of action under the California Uniform Commercial Code section 3406, subdivision (b). However, plaintiff has adequately alleged a cause of action for common law *496 negligence. I agree with the distinction the majority recognizes between the broad foreseeability that is relevant to establish the existence of a duty and the factually specific foreseeability that may establish a breach of that duty or causation, but the distinction leads to exactly the opposite conclusion. The facts here may eventually show that Neiman Marcus committed no breach of its common law duty, or that plaintiff’s claim is defeated by affirmative defenses such as comparative negligence, but they provide no principled basis for denying the existence of the duty that our Supreme Court recognized in Sun ’n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671 [ 148 Cal.Rptr. 329 , 582 P.2d 920 ] (Sun ’n Sand). The fact that Sun ’n Sand concerned a bank while this case involves a retail merchant hardly provides an acceptable basis for recognizing a duty in one case and denying it in the other. Certainly the…

Plaintiff Brian P. Burns appeals from a judgment in favor of defendant The Neiman Marcus Group, Inc. (Neiman Marcus), after its general demurrer to the second amended complaint was sustained without leave to amend. Plaintiff seeks to recover damages arising from an employee's fraudulent use of checks drawn on his personal checking account to make payments on the employee's Neiman Marcus store credit card accounts. Plaintiff argues that he has alleged sufficient facts requiring the reinstatement of his causes of action for common law negligence or, in the alternative, a statutory cause of action pursuant to California Uniform Commercial Code, section 3406, subdivision (b), [1] and a related request for an accounting. We disagree and, accordingly, affirm.

As more fully set forth in the operative complaint, plaintiff alleges that Carol Young [3] was employed as plaintiff's secretary, and throughout the relevant time period, her base salary never exceeded the sum of $75,000. Between 1995 and 2000, Young opened several credit card accounts with Neiman Marcus. In the three-year period prior to 2006, Young spent approximately $1 million at Neiman Marcus, and "the balance…