Filed 10/16/20 Tedesco v. Wells Fargo Bank, N.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THOMAS S. TEDESCO,

Plaintiff and Appellant, E070407

v. (Super.Ct.No. PSC1704669)

WELLS FARGO BANK, N.A. et al., OPINION

Defendants and Respondents.

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge.

Affirmed.

Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D. Marshall; Law Offices of

Joseph D. Davis and Joseph D. Davis for Plaintiff and Appellant.

McGuireWoods, Leslie Mark Werlin and Alicia A. Baiardo for Defendants and

Respondents.

1 Plaintiff and appellant Thomas S. Tedesco1 (Thomas), by his guardian ad litem

Stephen Carpenter, appeals from two judgments of dismissal entered on April 5, 2018,

after the trial court sustained the demurrers of defendants and respondents Wells Fargo

Bank, N.A., and Michael A. Bas (collectively the bank defendants), without leave to

amend, to Thomas’s first amended complaint (FAC). The FAC alleged causes of action

for, inter alia, negligence, fraud, and breach of fiduciary duty based on the bank

defendants’ transfer of control of an account containing some $30 million (the funds),

belonging to a limited partnership of which Thomas was the general partner.

On appeal, Thomas contends the bank defendants: (1) breached the duty of due

care owed to him as a depositor (breach of fiduciary duty); (2) negligently and

wrongfully transferred control of the funds (conversion); and (3) knew or should have

known the documents presented to Wells Fargo did not provide a valid basis to transfer

control of the funds (financial elder abuse). As to Bas, Thomas contends he: (1) is liable

for cancellation and rescission of a series of documents, which transferred control of the

funds (cancellation/rescission); (2) breached the duty of care by transferring control of

the funds (negligence); (3) participated in the manufacturing of fraudulent documents

used to transfer control of the funds (fraud); and (4) was properly joined in the claim for

declaratory relief. Thomas further contends the trial court erred in denying him leave to

amend. We affirm.

1 We refer to the Tedesco family members by their first names to avoid confusion. We mean no disrespect in doing so. (Estate of O’Connor (2018) 26 Cal.App.5th 871, 875, fn. 2.)

2

I. PROCEDURAL BACKGROUND AND FACTS

On July 28, 1988, Thomas and Wanda created the Tedesco Family Trust. In 1993,

Thomas was the sole general partner and owner of the controlling one percent general

partnership interest, and 98 percent limited partnership interest, in TW Tedesco

Properties, L.P., a California limited partnership (Tedesco Properties).2 Following

Wanda’s death in 2002, the Tedesco Family Trust was divided into five separate trusts,

one of which is the living trust, which was restated in a complete amendment and

restatement dated February 11, 2011. On an annual basis, Thomas gifted approximately

one-half percent interest in Tedesco Properties to his daughters, Laura K. White, Julie M.

Bas, and Sandra L. Kay. Thomas also transferred his interest in Tedesco Properties to his

living trust and, therefore, remained the beneficial owner.

On December 13, 2012, Thomas sold a 12.17 percent limited partnership interest

in Tedesco Properties to himself as trustee of the living trust. On December 26, 2012, he

gifted his one percent general partnership interest in Tedesco Properties to W. Mae, LLC,

which is held by his daughters, and gifted 11.7 percent of his limited partnership interest

in Tedesco Properties to his daughters’ trusts. A “Seventeenth Amendment to the

Agreement of Limited Partnership of TW Tedesco Properties” was executed and filed to

reflect these actions.

In early 2013, Thomas became “seriously ill and underwent two surgeries

requiring general anesthesia in or about April 2013.” During the following year, he was

2 Wanda owned the remaining one percent limited partnership interest.

3 of “diminished health and mental capacity, and was reliant in part upon his family

members, including [his daughters], to assist him in his business and financial affairs.

Because of his temporarily diminished health and vitality, [he] was susceptible to the

undue influence of others and unable to fully care for his own finances, to understand the

influence of persons seeking to have him transfer his funds or assets or control of his

property against his self-interest, or to resist fraud.” Effective June 5, 2013, Thomas

resigned as trustee of the living trust, and his daughters became successor trustees.

On August 25, 2017, Thomas (who was then 91 years old) initiated this action

alleging various misdeeds by his daughters, his former attorneys, and the bank

defendants, regarding his ownership interest in Tedesco Properties and his various trusts.

More specifically, Thomas claimed his daughters and others participated in the

manufacture of documents, which were used to transfer the controlling interest in

Tedesco Properties to his daughters and entities controlled by his daughters. By way of

the FAC filed on October 20, 2017, Thomas alleged three causes of action against Wells

Fargo (negligence, financial elder abuse, & conversion) and seven causes of action

against Bas (cancellation/rescission of documents, breach of fiduciary duty, financial

elder abuse, fraud/misrepresentation, negligence, conversion, & declaratory relief).

Thomas contends the bank defendants breached their fiduciary duties by failing to

(1) contact him, (2) take any measure to assure the validity of the documents transferring

his control and interest in Tedesco Properties, along with the funds, and (3) investigate

the documents’ authenticity or legal validity.

4 On January 10, 2018, both Wells Fargo and Bas demurred to the FAC; they

primarily argued they owed no duty of care to Thomas, and he cannot establish they

caused him harm. After hearing the matters, the trial court sustained both demurrers

without leave to amend. Thomas appeals.

II. DISCUSSION

A. Preliminary Matters.

1. Thomas’s standing.

Before we address the merits of the issues raised, we acknowledge the bank

defendants’ contention that Thomas lacks standing to “sue for any claimed damage to,

loss, or impairment of Partnership property” because Tedesco Properties, not Thomas, is

the aggrieved party. The bank defendants argue an individual partner may not sue an

outsider “for damage to ‘his’ beneficial interest in the partnership property.” (Mayer v.

C.W. Driver (2002) 98 Cal.App.4th 48, 60 [“The property was the partnership’s. The

[general and limited partners] could not have sued individually for damage to their

individual ‘beneficial interest’ in partnership property . . . .”].) Likewise, they assert an

individual partner may not sue on behalf of the partnership when his or her claims are

individual in nature and not derivative. (Everest Investors 8 v. McNeil Partners (2003)

114 Cal.App.4th 411, 424 [“A partnership is an entity separate and apart from the

partners of which it is comprised, and it is the partnership entity which owns its assets,

not the partners.”]; see id. at pp. 425-429.)

In response, Thomas asserts the bank defendants “mischaracterize [his] interest in

and standing with regard to the subject bank account” because he “has an enforceable

5 interest and standing as the real general partner, as the sole life beneficiary of the trust

which owns the partnership, and as the victim of a scheme to destroy his estate plan and

personal financial autonomy.” Thomas cites to Everest Investors 8 v. McNeil Partners,

supra, 114 Cal.App.4th 411, and argues that since his “daughters as ostensible general

partners and tort-feasors are obviously not going to bring an action to restore [his]

possession and control of the account, or to restore funds which they wrongfully

withdrew, [he] has the right to enforce a claim which the limited partnership possesses

against others.”

Arguably, since Thomas’s claims are individual in nature, he lacks standing.3

Nonetheless, we do not decide the standing issue in this appeal because we choose to

address the merits of the issues raised by Thomas.

2. Mootness.

On September 16, 2020, this court was informed that on July 27, 2020, the trial

court dismissed the entire underlying action as to all parties and all claims with prejudice.

On September 29, the bank defendants requested judicial notice of the lower court’s

September 28 order denying Thomas’s motion to vacate the dismissal. The bank

defendants contend the appeal should also be dismissed as moot. In the interest of

3 See also our prior nonpublished opinion in Wilson v. Tedesco (Conservatorship of Tedesco) (Sept. 19, 2019, E070316) [nonpub. opn.], mod. Oct. 7, 2019. On the court’s own motion, we take judicial notice of our prior opinion. (Evid. Code, § 452, subd. (d); Cal. Rules of Court, rule 8.1115(b)(1).) “It is well accepted that when courts take judicial notice of the existence of court documents, the legal effect of the results reached in orders and judgments may be established.” (Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 185.)

6 justice, we choose to address the merits of the issues. We therefore deny the request for

judicial notice and will not decide the mootness issue.4

B. The Bank Defendants’ Demurrer

Thomas contends the FAC sufficiently pled causes of action against the bank

defendants. Alternatively, he contends the trial court abused its discretion in denying him

leave to amend. We reject his contentions and affirm.

1. Standard of review.

“A ‘demurrer tests the pleading alone, and not the evidence or the facts alleged.

Thus, a demurrer will be sustained only where the pleading is defective on its face.’

[Citation.] On appeal from a judgment of dismissal based on an order sustaining a

demurrer, ‘we examine the complaint de novo to determine whether it alleges facts

sufficient to state a cause of action under any legal theory, such facts being assumed true

for this purpose.’ [Citation.] We may also consider matters that have been judicially

noticed, but must disregard allegations that are contrary to law or facts judicially noticed.

[Citations.] Alternatively stated, ‘[w]e treat the demurrer as admitting all material facts

properly pleaded but not contentions, deductions or conclusions of fact or law.’

[Citation.] [¶] . . . [¶] We review a court’s denial of leave to amend on sustaining a

demurrer for abuse of discretion. [Citation.] On appeal, the appellant must show there is

a reasonable possibility the defect in the complaint can be cured by amendment.”

(Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020)

4 The court has reviewed respondents’ request for judicial notice filed September 29, 2020. The request is denied.

7 46 Cal.App.5th 1103, 1116-1117.) We may consider exhibits attached to a complaint

when reviewing a demurrer, and “[i]f facts appearing in the exhibits contradict those

alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Internat.,

Inc. (2001) 86 Cal.App.4th 1443, 1447.)

2. The orders sustaining the demurrers were proper.

a. Negligence and breach of fiduciary duty against Wells Fargo

and Bas.

Thomas asserts Bas has a “confidential and fiduciary relationship” by reason of his

family relationship (Bas is married to one of Thomas’s daughters). He further asserts the

existence of a fiduciary duty by reason of the fact Tedesco Properties “maintained one or

more bank accounts” with Wells Fargo, holding in excess of $30 million. Thus, he

contends the bank defendants breached their fiduciary duty by failing to contact him or

otherwise take any measure to assure the validity of the documents, which transferred

signatory power and control over the bank funds to W. Mae, LLC, and its managers

(Thomas’s daughters). On appeal, Thomas maintains the FAC properly alleged breach of

the duty of due care owed to depositors and customers. We disagree.

“‘A fiduciary relationship is “‘any relation existing between parties to a transaction

wherein one of the parties is in duty bound to act with the utmost good faith for the benefit

of the other party. Such a relation ordinarily arises where a confidence is reposed by one

person in the integrity of another, and in such a relation the party in whom the confidence

is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no

advantage from his acts relating to the interest of the other party without the latter’s

8 knowledge or consent . . . .’” [Citations.] [¶] “Traditional examples of fiduciary

relationships in the commercial context include trustee/beneficiary, directors and majority

shareholders of a corporation, business partners, joint adventurers, and agent/principal.”’”

(Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546-547.) However, “the

relationship between a bank and its depositor is not fiduciary in character. [Citation.]

‘“The relationship of bank and depositor is founded on contract,” [citation] which is

ordinarily memorialized by a signature card that the depositor signs upon opening the

account. [Citation.] This contractual relationship does not involve any implied duty “to

supervise account activity” [citation] or “to inquire into the purpose for which the funds

are being used”’” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 741 (Das);

see Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 538 [bank has no duty to

police their fiduciary accounts]; Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th

1138, 1150 (Casey) [Under California law, a bank owes no duty to nondepositors to

investigate or disclose suspicious activities on the part of an account holder.].)

Under these principles, Thomas’s allegations regarding the bank defendants’

conduct in connection with documents transferring signatory power and control over the

bank funds to W. Mae, LLC, and its managers (Thomas’s daughters) fail to state claims

for breach of fiduciary duty or negligence. The FAC alleges no facts suggesting the bank

defendants undertook a special fiduciary duty to him.5 Although Thomas alleges he did

not execute the “Amendment to Certificate of Limited Partnership,” and the bank

5 Tedesco Properties, not Thomas, is the owner of the Wells Fargo account, and Thomas was not the sole owner of the partnership.

9 defendants made no “attempt to contact [him] or otherwise take any measure to assure the

validity of the transfer of the general partnership interest,” the documents attached to the

FAC, which we may consider, bear Thomas’s signature. Nothing in the FAC suggests

the bank defendants discharged their contractual duties in an unreasonable manner or

knew of the specific primary wrong they are accused of substantially assisting. When

presented with the documents, the bank defendants followed the instructions and

transferred control of the funds. (See discussion, infra.) Thus, Thomas’s allegations

establish no claim against Wells Fargo or Bas based on breach of fiduciary duty or

negligence.

b. Conversion against Bas and Wells Fargo.

The FAC alleges Bas and Wells Fargo committed the tort of conversion because

they have approximately $30 million in “their control and possession,” Thomas has the

“immediate right of possession,” and they improperly transferred control of these funds

to his daughters and their entities. On appeal, Thomas maintains the bank defendants’

unauthorized transfer of the funds constitutes conversion. We conclude the FAC fails to

state a cause of action for conversion.

“‘“Conversion is the wrongful exercise of dominion over the property of another.

The elements of a conversion claim are: (1) the plaintiff’s ownership or right to

possession of the property; (2) the defendant’s conversion by a wrongful act or

disposition of property rights; and (3) damages.”’” (Welco Electronics, Inc. v. Mora

(2014) 223 Cal.App.4th 202, 208; see Gruber v. Pacific States Sav. & Loan Co. (1939)

13 Cal.2d 144, 148 [Conversion is any act of dominion wrongfully exerted over the

10 personal property of another.].) It “is an intentional tort. [Citation.] ‘The act

[constituting conversion] must be knowingly or intentionally done, but a wrongful intent

is not necessary. [Citations.] Because the act must be knowingly done, “neither

negligence, active or passive, nor a breach of contract, even though it result[s] in injury

to, or loss of, specific property, constitutes a conversion.”’” (Multani v. Knight (2018)

23 Cal.App.5th 837, 853-854.)

Here, the funds are the property of Tedesco Properties, not Thomas personally,

and the FAC identifies defendants who have “intentionally and substantially interfered

with plaintiff’s property by fraudulently obtaining control of the [Tedesco Properties]

accounts and funds and diverting said funds into defendants’ personal accounts, and by

preventing plaintiff from having access to the money.” But the FAC does not allege

either Wells Fargo or Bas asserted dominion or control over the funds. (Cf. Simonian v.

Patterson (1994) 27 Cal.App.4th 773, 781-782 [Under the facts as pled, there was no

intention on defendant’s part to “‘convert the owner’s property, or to exercise some act of

ownership over it, or to prevent the owner’s taking possession of his property.’”].) Also,

as we state in our discussion of Thomas’s other causes of action, nothing in the FAC

suggests the bank defendants committed a wrongful act in honoring the legal documents,

which effected the transfer of control of the funds, and neither Wells Fargo nor Bas owed

a common law fiduciary duty to Thomas. We therefore conclude, as a matter of law,

Thomas cannot allege a cause of action for conversion.

11 c. Financial elder abuse against Wells Fargo and Bas.

The FAC asserts the bank defendants violated Welfare and Institutions Code

section 15610.30 and committed financial abuse upon an elder by secreting,

appropriating, and retaining Thomas’s assets after demand had been made, and they

engaged in undue influence as defined in Civil Code section 1575. On appeal, Thomas

contends the bank defendants “certainly knew and should have known that [neither] an

unsigned ‘assignment’ [nor the unsigned ‘Amendment’] was . . . a valid basis for transfer

of an account.” Thus, he maintains the FAC states a claim against them for financial

elder abuse. We disagree.

As defined by statute, financial elder abuse occurs when a person or entity

“[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or

dependent adult for a wrongful use or with intent to defraud” or “assists in taking,

secreting, appropriating, obtaining, or retaining real or personal property of an elder or

dependent adult for a wrongful use or with intent to defraud.” (Welf. & Inst. Code,

§ 15610.30, subd. (a)(1), (a)(2).)

Here, the claim for financial elder abuse is dependent on the bank defendants’

actual knowledge of the allegedly fraudulent documents. Thomas repeatedly asserts the

bank defendants relied upon “unsigned” documents to assist his daughters in the

wrongful and fraudulent transfer of control of the funds. However, included in the

exhibits attached to the FAC is the “Assignment of General Partner’s Interest” and an

“Amendment to Certificate of Limited Partnership,” both of which were signed by

Thomas, and the latter was filed with the California Secretary of State. According to

12 these documents, Thomas agreed to the transfer of his one percent general partnership

interest in Tedesco Properties to W. Mae, LLC. More importantly, Thomas signed the

“Assignment of General Partner’s Interest” on December 26, 2012 (prior to his

“diminished health and mental capacity” in 2013), and it was made “effective

immediately.” Again, nothing in the FAC suggests the bank defendants discharged their

contractual duties in an unreasonable manner or knew of the specific primary wrong they

are accused of substantially assisting. (Das, supra, 186 Cal.App.4th at p. 745 [When “a

bank provides ordinary services that effectuate financial abuse by a third party, the bank

may be found to have ‘assisted’ the financial abuse only if it knew of the third party’s

wrongful conduct.”].)

Although the FAC alleges the bank defendants “knew or should have known” the

fraudulent nature of the documents, such abuse allegation, without more, does not give

rise to tort liability. We are tasked with “carefully scrutiniz[ing] whether [Thomas] has

alleged the bank [defendants] had actual knowledge of the underlying wrong it

purportedly aided and abetted.” (Casey, supra, 127 Cal.App.4th at p. 1152.) Given the

exhibits attached to the FAC, which contain Thomas’s signature, we conclude the FAC’s

general allegation that the bank defendants knew the fraudulent nature of the documents

does not sufficiently plead that they had actual knowledge of the documents’ allegedly

fraudulent nature.

“In reviewing the sustaining of a demurrer, ‘we give the complaint a reasonable

interpretation, reading it as a whole and its parts in their context.’” (Casey, supra, 127

Cal.App.4th at p. 1153.) Applying that standard, the FAC fails to state a cause of action

13 for financial elder abuse. Consequently, we conclude the trial court properly sustained

the demurrer to this cause of action.

d. Cancellation/rescission and declaratory relief against Bas.

Thomas contends his daughters and Bas manufactured documents to effect the

transfer of Thomas’s interests in Tedesco Properties to, inter alia, his daughters and

W. Mae, LLC, and the documents are invalid and void. On appeal, Thomas argues Bas is

liable for cancellation and rescission of these documents, and he was properly joined in

the claim for declaratory relief. Not so.

Both causes of action are based on contract. Since there is no contract between

Thomas and Bas, both claims must fail. Under the basic principles of law, a contract is a

bargained-for exchange. (Bard v. Kent (1942) 19 Cal.2d 449, 452.) “‘“[T]he

consideration for a promise must be an act or a return promise, bargained for and given in

exchange for the promise.”’” (Levy v. Bellmar Enterprises (1966) 241 Cal.App.2d 686,

691.) Here, the contracts that accomplished the transfer of property or Thomas’s interest

in Tedesco Properties were between Thomas, on the one hand, and his daughters or

another entity, on the other. Bas was not a party to any of the documents. As such, he is

not the proper target of Thomas’s cause of action for rescission. (See Schauer v.

Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 959-960 [“Civil Code

section 1689 limits grant of rescission rights to the contracting parties. . . . [Defendant],

not having participated in the agreement, not having undertaken any duty or given any

consideration, is a stranger to the agreement, with no legitimate interest in voiding it.”];

14 Civ. Code, § 1688 [rescission extinguishes a contract between the parties].) In short,

Thomas failed to state claims for cancellation/rescission and declaratory relief.6

e. Fraud and misrepresentation against Bas.

In his fraud cause of action, Thomas alleged that “defendants misrepresented the

nature, substance and authenticity” of the documents, “inducing [him] to execute [them],”

and “misrepresenting the authenticity of [his] signature and the validity of his consent to

the transfer [of his] interests and control of [Tedesco Properties] to financial institutions,

to the Secretary of State and to [him] and other persons.” On appeal, Thomas faults the

trial court for not considering “Bas’ liability for participating in the manufacture of

fraudulent documents and exploitation of the family relationship as alleged.” He further

asserts his fraud claim is “pled with as much specificity as could reasonably be expected

from [him] in these circumstances.” We conclude the trial court properly sustained Bas’s

demurrer to this cause of action.

“Fraud must be pleaded with specificity, to provide the defendants with the fullest

possible details of the charge so they are able to prepare a defense to this serious attack.

To withstand a demurrer, the facts constituting every element of the fraud must be

alleged with particularity, and the claim cannot be salvaged by references to the general

6 By way of the declaratory relief cause of action, Thomas seeks a declaration of rights as to the funds in light of his cancellation/rescission of the allegedly fraudulent documents. Since the claim for declaratory relief is inextricably intertwined with the cancellation/rescission cause of action, the claim fails for the same reason. (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [“Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim.”].)

15 policy favoring the liberal construction of pleadings. [Citation.] Even in a case involving

numerous oft-repeated misrepresentations, the plaintiff must, at a minimum, set out a

representative selection of the alleged misrepresentations sufficient to permit the trial

court to ascertain whether the statements were material and otherwise actionable.”

(Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783; see

Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [“‘In California, fraud must be

pled specifically; general and conclusory allegations do not suffice.’”].)

Thomas’s cause of action for fraud and misrepresentation does not come close to

the required specificity. The FAC accuses 10 defendants (including a legal entity) of

misrepresentation and concealment. However, it avers no facts as to what was said or to

whom or in what manner. (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73

[Plaintiff must plead “facts which ‘show how, when, where, to whom, and by what means

the representations were tendered.’”].) We do not know how Bas induced Thomas to

execute the documents; when this conduct occurred; where it occurred; or by what means

Bas employed to induce Thomas to sign the documents. Absent this specificity, Bas is

unable to defend himself. (See Community Cause v. Boatwright (1981) 124 Cal.App.3d

888, 901 [“The rationale for the rule requiring specificity is that allegations of fraud are

serious, and the defendant is entitled to receive sufficient details in order to prepare his

defense.”].) Having failed to satisfy the strict pleading requirements, Thomas’s cause of

action for fraud and misrepresentation fails.

16 3. Sustaining the demurrer without leave to amend.

Finally, we consider the trial court’s decision to deny Thomas leave to amend the

FAC. Thomas asserts he could amend the FAC to allege the subject account was an

investment account “under the tutelage of Wells [Fargo’s] investment advisor Michael

Bas,” and thus enhanced the duty of care owed. However, Thomas fails to state how this

additional allegation would overcome the obstacles of the documents bearing his

signature and the bank defendants’ lack of knowledge of any alleged wrongdoing. For

the trial court to permit an amended pleading, the plaintiff must “clearly and specifically”

set forth the legal authority for the claims they contend they can allege, the elements of

each of those claims, and the specific factual allegations that would establish each of

those elements. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39,

43-44.) Thomas made no attempt to meet this burden. Accordingly, the causes of action

against the bank defendants were properly disposed of at the pleading stage. (Blank v.

Kirwan (1985) 39 Cal.3d 311, 318 [It is the plaintiff’s burden to prove a reasonable

possibility that a pleading defect could be cured by a further amendment.].)

17

III. DISPOSITION

The judgments of dismissal for Wells Fargo and Bas are affirmed. Defendants

shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ

P. J.

SLOUGH

J.

18