[00:00:00] Speaker 05:
Good morning.

[00:00:09] Speaker 04:
Mary Layman for Appellant Mrs. Ma, I'd like to reserve three minutes for rebuttal.

[00:00:16] Speaker 04:
For the court's recent order, I will address whether Mrs. Ma properly alleged that the employee Jane Doe's torts were within the scope of her employment.

[00:00:28] Speaker 04:
Under California law, scope of employment for respondeat superior is interpreted broadly.

[00:00:35] Speaker 04:
It is also generally a question of fact.

[00:00:37] Speaker 04:
It is highly unusual to decide in a motion to dismiss.

[00:00:42] Speaker 04:
Indeed, as the Juarez court stated, if there's any material dispute of fact on scope of employment, it should not be decided on a motion to dismiss.

[00:00:52] Speaker 04:
Juarez, that this court cited in its order,

[00:00:55] Speaker 04:
was a California Court of Appeal that vacated a demurr, finding there were sufficient allegations of scope of employment.

[00:01:02] Speaker 04:
Demurr is equivalent to the federal 12b6 motion.

[00:01:07] Speaker 04:
The court found that plaintiff in that case sufficiently alleged that the police officer's off-duty violent misconduct was indeed within the scope of their employment.

[00:01:18] Speaker 04:
The RARA's task looks for essentially a connection between the alleged misconduct

[00:01:24] Speaker 04:
and the employees duties.

[00:01:26] Speaker 04:
Here the alleged misconduct was by Jane Doe when my client Mrs. Ma entered the bank and she was approached by the customer service representative Jane Doe and asked if she could be of assistance.

[00:01:43] Speaker 03:
Ms.

[00:01:43] Speaker 03:
Levin, you plead that the bank had a policy that they should not give out phone numbers.

[00:01:51] Speaker 03:
So if Jane Doe allegedly on the terms of the complaint violated that policy, does that automatically take her conduct outside of the scope of employment?

[00:02:04] Speaker 04:
I don't think we pled that Jane Doe was not allowed to give out phone numbers.

[00:02:12] Speaker 04:
I think that was in the bank's motion to dismiss.

[00:02:17] Speaker 03:
I think in your complaint you say something that said that even if she was not supposed, even if the bank's policy was not to give out phone numbers, she would still, there's still enough there for the bank to be liable.

[00:02:35] Speaker 04:
Okay, sounds good.

[00:02:37] Speaker 03:
I'm just trying to figure out what to do with that as a pleading matter.

[00:02:39] Speaker 04:
I would refer the court to the Perez case.

[00:02:41] Speaker 04:
And the Perez case under California law says even if an employee violates an express rule of their employer, it can still be within the scope of their employment.

[00:02:53] Speaker 04:
And that Perez case.

[00:02:54] Speaker 02:
I'm not so sure how you get around DAS.

[00:02:58] Speaker 02:
That's the struggle I have.

[00:03:00] Speaker 02:
How do we get to the knowledge for the bank here?

[00:03:06] Speaker 04:
Okay.

[00:03:06] Speaker 04:
Well, there's, I guess there's two different issues here under respond yet superior.

[00:03:10] Speaker 04:
Correct.

[00:03:10] Speaker 04:
we have a vicarious liability so that if Jane Doe did the wrongful conduct, then through vicarious liability, the bank would be liable.

[00:03:20] Speaker 04:
And under DOS, DOS has to do with whether, and vicarious liability would be essentially direct taking.

[00:03:28] Speaker 04:
DOS goes to the allegations as to whether the bank assisted in the elder financial abuse.

[00:03:37] Speaker 04:
And DOS said, well, the statute says assist,

[00:03:40] Speaker 04:
So we're going to look at aid and abet, and we're going to say that's the same as assist.

[00:03:45] Speaker 04:
So since aid and abet requires an actual knowledge standard, we're going to do that as well.

[00:03:51] Speaker 04:
And as our briefing in the lower court said, DOS has pretty much been rejected in California courts, unpublished.

[00:04:00] Speaker 02:
We've provided those... Not by the California Supreme Court.

[00:04:03] Speaker 04:
Not by the California Supreme Court.

[00:04:04] Speaker 04:
And I realize this court's hands are tied accordingly and what the law is.

[00:04:11] Speaker 04:
But in our reply brief, we referred the court to a recent district court decision that we think properly or provides a path forward

[00:04:21] Speaker 04:
to the proper policies under the elder abuse, correct application of the law as to what is actual knowledge, and dealing with DOS.

[00:04:32] Speaker 04:
And to refresh the court summary, Lynn said that actual knowledge for assisting elder abuse can be satisfied with the standard must have known.

[00:04:42] Speaker 04:
And actual knowledge in other areas of California law is also satisfied by the standard must have known.

[00:04:51] Speaker 04:
which makes sense because actual knowledge can really only be proven by circumstantial evidence.

[00:04:57] Speaker 04:
So actual knowledge and must have known are essentially the same type of things.

[00:05:01] Speaker 05:
Yeah.

[00:05:02] Speaker 05:
What do you allege about how the bank actually knew or must have known about Jane Doe's giving out the scam phone number?

[00:05:13] Speaker 05:
I'm sorry.

[00:05:13] Speaker 05:
I couldn't hear you.

[00:05:14] Speaker 05:
I'm sorry.

[00:05:14] Speaker 05:
So what do you actually allege about on that point about the bank knowing

[00:05:22] Speaker 05:
having actual knowledge or should have known or must have known that Jane Doe was participating in this scheme by giving out the phone number.

[00:05:33] Speaker 05:
The scam.

[00:05:34] Speaker 04:
We allege that it must have known that what occurred here was elder abuse.

[00:05:42] Speaker 04:
And we say that, we didn't say that the bank must have known, we didn't say that the bank must have known

[00:05:49] Speaker 04:
that Jane Doe was involved in the scam of giving out a false number.

[00:05:53] Speaker 04:
However, we did make allegations that this same type of fraud had occurred three times at the bank, and Mrs. Ma was told that.

[00:06:03] Speaker 04:
So query whether that was a factor for the actual knowledge.

[00:06:07] Speaker 03:
So the answering brief, for example, says, this is at 18 and 19, most particularly lacking is any argument that the amended complaint alleged facts showing

[00:06:16] Speaker 03:
that Jane Doe knew that the persons who answered the telephone would have snared Ma and a Chinese authorities scam.

[00:06:22] Speaker 03:
What's your response to that?

[00:06:24] Speaker 04:
That Jane Doe knew?

[00:06:26] Speaker 03:
Well, if you're asking us to attribute the knowledge of Jane Doe to the bank, that knowledge has to be the knowledge that it is a scam.

[00:06:36] Speaker 00:
Absolutely.

[00:06:36] Speaker 03:
What they must have known.

[00:06:38] Speaker 03:
I mean, there's a lot of policy arguments in here about how banks should do more.

[00:06:42] Speaker 03:
Battle or abuse, that may be all true.

[00:06:45] Speaker 03:
But for the legal case, you need to establish that Jane Doe knew that she was getting Ma into a scam.

[00:06:54] Speaker 03:
And then we can start asking about the bank.

[00:06:56] Speaker 03:
But your friends say that you don't even plead that much.

[00:06:59] Speaker 03:
So where can we find that in your complaint?

[00:07:00] Speaker 04:
Absolutely.

[00:07:01] Speaker 04:
I would especially direct the court to our complaint

[00:07:06] Speaker 04:
Paragraph 43 I, and this is a quote.

[00:07:09] Speaker 04:
Banna employee, Jane Doe was a Banna employee who actually assisted and knew she was conducting a scam that preyed upon Ma.

[00:07:18] Speaker 04:
That specifically she knew it.

[00:07:20] Speaker 03:
Is that it?

[00:07:21] Speaker 03:
Might that be to conclusory?

[00:07:25] Speaker 04:
It's not it.

[00:07:26] Speaker 04:
I would refer to 2, 4, and 9 that they say that Jane, that we say that Jane Doe stole this and Banna employee,

[00:07:36] Speaker 04:
Hires employees that steal.

[00:07:39] Speaker 04:
We say on paragraph 33 that Ma was a perfect victim for Jane Doe.

[00:07:49] Speaker 04:
Paragraph 44, that Jane Doe had knowledge of the scam.

[00:07:54] Speaker 04:
And then paragraph 87, we state that Banna failed to stop Jane Doe from committing the scam themselves.

[00:08:07] Speaker 04:
And then there's other page numbers, the paragraph numbers, 2, 4, 9, 11, 33.

[00:08:11] Speaker 05:
So where do you allege that Bank of America had this happen there three times before?

[00:08:21] Speaker 05:
Is that alleged?

[00:08:23] Speaker 04:
Yes, it is.

[00:08:23] Speaker 05:
And that gives them notice?

[00:08:27] Speaker 04:
I'm sorry.

[00:08:27] Speaker 05:
That gives them constructive notice that their employees are engaging in this?

[00:08:36] Speaker 04:
Just to be clear it occurred three times And it was two times before ma so three times all total yes, and that is alleged because because when mrs. Ma was trying to get information about the investigation she was told by one of Banna's employees and the investigative department that this something similar had occurred twice before in the same branch and

[00:09:03] Speaker 04:
So yes, we see that that is part of the constructive notice that the bank had that it must have known for assisting elder abuse or that it should have known for direct elder abuse taking of property.

[00:09:18] Speaker 03:
You also, I think at paragraph 53 of the complaint, plead that the bank ratified Doe's conduct by not filing a police report.

[00:09:31] Speaker 03:
How does that work?

[00:09:32] Speaker 03:
So in other words, if we aren't able to find an agency arrangement, relationship sufficient to attribute her knowledge to the bank on its own,

[00:09:44] Speaker 03:
that there's somehow ratification here.

[00:09:46] Speaker 03:
So why does not filing a police report, as alleged, ratify any conduct by Doe if she were acting originally outside of the scope of her employment?

[00:09:58] Speaker 04:
I'd like to preface that answer with saying that under the 12b6 standard, not only are allegations deemed true, but reasonable inferences are to be made in our favor.

[00:10:11] Speaker 04:
And this court can use their experience and common sense

[00:10:14] Speaker 04:
in interpreting our allegations.

[00:10:16] Speaker 04:
So our allegations need to be interpreted broadly.

[00:10:19] Speaker 04:
We state that under the rule of law, USC 16 something, that when we reported the fraud, the bank was supposed to do an investigative report.

[00:10:34] Speaker 04:
And it was supposed to give us a copy and find out what the investigation turned up.

[00:10:41] Speaker 04:
And the bank did not.

[00:10:43] Speaker 04:
We alleged that the bank gave Mrs. Ma the roundabout, you know, wouldn't provide the video, wouldn't even connect her with the right person.

[00:10:54] Speaker 04:
So the idea that the bank is hiding something, per se, or could be involved or had knowledge of these frauds, because it was the third time it happened, it was trying to cover up, if you will.

[00:11:12] Speaker 04:
And this would tie into almost an estoppel argument as we set forth in our briefs.

[00:11:19] Speaker 04:
The bank refused to give us information about Jane Doe, even her name.

[00:11:24] Speaker 04:
The problem was that it would likely destroy diversity and the bank still wouldn't in violation of Federal Civil Procedure 1 and 26.

[00:11:37] Speaker 04:
And to the extent that the bank wants to say, well, we didn't allege the specific fact,

[00:11:42] Speaker 04:
you know, of Jane Doe's name perhaps or, you know, we did absolutely as best we could and the bank should be stopped from claiming more.

[00:11:53] Speaker 04:
And just to be clear, it's like the, I think there's two aspects of the relationship between Jane Doe and the bank.

[00:12:03] Speaker 04:
And one is vicarious liability for the conduct and that's the scope of employment that this court referred to in Juarez.

[00:12:11] Speaker 04:
And then there's also,

[00:12:12] Speaker 04:
the agency argument, and we did plead that, I believe, under Civil Code 2232, is that the knowledge of Jane Doe can be attributed to the bank.

[00:12:24] Speaker 04:
And those are two separate issues, and I believe we went on both of them.

[00:12:30] Speaker 05:
Unless the court has any... You want to reserve the rest of your time?

[00:12:33] Speaker 04:
Absolutely.

[00:12:34] Speaker 05:
Thank you.

[00:12:47] Speaker 01:
May it please the Court, I'm Jan Shilton, representing Bank of America.

[00:12:51] Speaker 01:
I'd like first to address the Court's focus question, if I might.

[00:12:56] Speaker 01:
And before I do that even, I'd like to say at the outset that it's Bank of America's position that Jane Doe never existed.

[00:13:04] Speaker 01:
This alleged conversation never occurred.

[00:13:07] Speaker 01:
We're dealing with a fantasy world that was created by and is limited to the allegations of the

[00:13:15] Speaker 01:
amended complaint, and particularly paragraphs 2, 4, 34, and 43 of the amended complaint.

[00:13:23] Speaker 01:
And let me say that we agree with plaintiff that the reasonable inference that arises from the allegations of those paragraphs is that Jane Doe, this fictional character, was a participant in the scheme that cheated the plaintiff.

[00:13:45] Speaker 05:
Do you have any doubt that she was cheated?

[00:13:48] Speaker 01:
I have no doubt that she was cheated.

[00:13:51] Speaker 05:
Okay.

[00:13:51] Speaker 05:
And that she was treated through wire transactions at this branch of Bank of America?

[00:13:57] Speaker 01:
I'm sorry.

[00:13:59] Speaker 05:
I'm sorry too.

[00:14:00] Speaker 05:
I don't know what's going on here.

[00:14:01] Speaker 05:
And that she was cheated by wire, through wire transactions through the branch of Bank of America where she had her account.

[00:14:13] Speaker 01:
If I can rephrase your honor's question, I don't contest that she sent wire transfers that depleted her savings.

[00:14:23] Speaker 01:
She was fraudulently induced by phone calls, not anything having to do with the bank, to make the wire transfers.

[00:14:33] Speaker 05:
But what basis do you have to say this is the total fiction?

[00:14:37] Speaker 01:
Oh, the total fiction is Jane Doe, not

[00:14:43] Speaker 03:
But isn't that then a question, why doesn't that get Ma passed a motion to dismiss?

[00:14:51] Speaker 01:
Your Honor, it is precisely because you can't attribute, even if we assume, as we must on a motion to dismiss, that the fictional allegations are true.

[00:15:04] Speaker 01:
They don't go far enough to impose a respondeat superior liability on the bank.

[00:15:11] Speaker 01:
And I direct the court's attention to three California Supreme Court decisions.

[00:15:19] Speaker 01:
that were decided in the 1980s and 1990s.

[00:15:23] Speaker 01:
They are the Lisa M., Mary M., and John R. cases that I gave the clerk this morning a list of.

[00:15:32] Speaker 05:
Are these cases that you cited in your brief?

[00:15:35] Speaker 01:
No, they are not.

[00:15:36] Speaker 05:
Okay, so the list, yeah, I didn't understand quite what that list was.

[00:15:41] Speaker 01:
The list of cases you gave us this morning, that's cases that weren't cited in your... That weren't cited because the... I compiled the list to address the focus question that we received last week.

[00:15:56] Speaker 01:
Okay.

[00:15:56] Speaker 01:
And I wanted to refer to these cases in my oral argument and I thought it would be easier than trying to

[00:16:04] Speaker 01:
give you the sites orally to give them to you in writing.

[00:16:08] Speaker 01:
Anyway, there are three reasons for looking to these three California Supreme Court cases.

[00:16:15] Speaker 01:
First, Erie says that the court must follow the law as stated by the California Supreme Court.

[00:16:21] Speaker 01:
Court of Appeal opinions like Juarez are useful guides only where the Supreme Court has not spoken.

[00:16:30] Speaker 01:
Secondly, as I'll get to in a moment, Juarez was a police officer case and different rules apply to those cases.

[00:16:38] Speaker 01:
And third, the three Supreme Court cases are helpful because one of them found respondeat superior liability and two did not.

[00:16:50] Speaker 01:
So you get both sides of the coin there and in three different factual situations.

[00:16:58] Speaker 01:
All three cases involved the same tort, a sexual assault.

[00:17:08] Speaker 01:
And the first thing that these three cases tell us is that police officer cases are different.

[00:17:17] Speaker 01:
Mary M.

[00:17:20] Speaker 01:
uh... is the case on that and makes the point strongly it says the police officers exercise the most awesome and dangerous power

[00:17:30] Speaker 01:
that a democratic state possesses with respect to its residents.

[00:17:35] Speaker 03:
I guess I wouldn't over read too much into our use of, I think we cited Juarez for the test rather than the facts.

[00:17:44] Speaker 03:
And I guess I'd like to add another, well, so I'd like to hear, particularly with respect, I think it's paragraph 34 where there's a very vivid, true or not, that's not the question before us, very vivid,

[00:17:58] Speaker 03:
picture that the complaint paints of Ms.

[00:18:02] Speaker 03:
Doe coming up to Ms.

[00:18:05] Speaker 03:
Ma asking for help, walking, she's clearly an employee, walking back to her desk, writing something at the desk, the phone number, bringing it back over.

[00:18:16] Speaker 03:
So that's the thing that I think raises the question of how is this not in scope of employment.

[00:18:25] Speaker 01:
take that up.

[00:18:28] Speaker 03:
I don't mean to take you away from the cases.

[00:18:30] Speaker 03:
That's where the cases are different.

[00:18:35] Speaker 03:
We're dealing with a complaint here.

[00:18:38] Speaker 01:
The second thing that the Supreme Court cases that I've cited teach is that, particularly in crime cases,

[00:18:49] Speaker 01:
which is what we're dealing with here.

[00:18:52] Speaker 01:
Sexual assault in the Supreme Court cases here, conspiracy to defraud.

[00:19:00] Speaker 01:
The employer is held liable only when the incident leading to the injury grows out of the employment.

[00:19:19] Speaker 01:
All that happens is victim and tortfeasor meet at the place of employment.

[00:19:27] Speaker 01:
That's not enough.

[00:19:28] Speaker 01:
That's the Lisa M case.

[00:19:30] Speaker 03:
Well, we've got more here.

[00:19:32] Speaker 03:
The perpetrator, the alleged perpetrator, relied on her ostensible position as an employee to provide the number in the guise of doing her job as advising and saying, well, we don't have those services here.

[00:19:49] Speaker 03:
But call this number.

[00:19:50] Speaker 03:
We've got those at this number.

[00:19:52] Speaker 01:
It is true that she asked a question and got a response, but the crime that this employee was supposedly engaged in didn't grow out of her work.

[00:20:10] Speaker 01:
Her work gave her the opportunity to give the phone number.

[00:20:15] Speaker 03:
Well, I guess that might be a slightly closer question.

[00:20:19] Speaker 03:
Certainly, there's nothing about sexual assault that would grow out of any work.

[00:20:25] Speaker 03:
But the fraud here was with respect to her Bank of America accounts.

[00:20:32] Speaker 03:
And I guess I'd add a layer of

[00:20:35] Speaker 03:
a Court of Appeal case, the Intermountain Mortgage case that applies, Lisa M. says that what they're looking at is whether it's foreseeable.

[00:20:47] Speaker 03:
They want to know whether an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of doing business.

[00:20:55] Speaker 03:
And they say there that fraud by a bank employee or a sensible bank employee was attributable to it.

[00:21:02] Speaker 03:
Of course, it's never a bank's

[00:21:05] Speaker 03:
Business to defraud its clients.

[00:21:07] Speaker 00:
That's always outside the scope and yet the state courts have told us that it can happen Well, yes, but I do distinguish inner inner mountain mortgage You know to be honest your honor I I'm not familiar with the facts of that case and so I can't give you an answer to your question.

[00:21:28] Speaker 01:
I'm sorry I

[00:21:29] Speaker 01:
But I would point out that this court has decided a somewhat similar case and gone a different way, and that's the Okei Semiconductor Company versus Wells Fargo case, also on the list of cases that I gave the clerk.

[00:21:51] Speaker 01:
There, the teller

[00:21:55] Speaker 01:
was part of a scam scheme that stole computer parts and resold them for profit.

[00:22:04] Speaker 01:
The teller laundered the money through the bank, using the bank's facilities to launder the money.

[00:22:15] Speaker 01:
using her knowledge about anti-money laundering requirements to structure the transactions in a way that would not generate reports and so forth.

[00:22:30] Speaker 01:
And this court said she was acting outside the scope of her employment.

[00:22:37] Speaker 01:
And it further pointed out, and I think this is particularly significant here,

[00:22:44] Speaker 01:
What Oke was trying to do was not hold the bank liable for the teller's wrongdoing, but for her co-conspirators' wrongdoing.

[00:22:56] Speaker 01:
And that was something that this court said it would not do.

[00:23:01] Speaker 01:
And that's exactly the same thing as what Mrs. Ma is asking this court to do here.

[00:23:10] Speaker 01:
The bank's Jane Doe,

[00:23:13] Speaker 01:
gave her a phone number.

[00:23:15] Speaker 01:
She didn't rob her.

[00:23:16] Speaker 01:
She didn't take any money.

[00:23:18] Speaker 03:
So what else should she have alleged or would she have needed to have alleged to establish a sufficient relationship?

[00:23:28] Speaker 01:
Well, I mean, there are all kinds of things that could be alleged, I suppose.

[00:23:34] Speaker 03:
Right, but of course if the scam is, the concern if the scam is that you have someone impersonating bank employees to prey upon that bank's client,

[00:23:42] Speaker 03:
who alleges actually a bank employee and the way that it works is all you need to do is give the phone number.

[00:23:48] Speaker 03:
How would you be able to plead a case like that if it occurred, if not in this way?

[00:24:00] Speaker 01:
Well, I think what you would need to do is show, I think you asked

[00:24:08] Speaker 01:
One of you asked my opponent that the bank had some reason to know what was going on here.

[00:24:19] Speaker 03:
But it had happened twice before.

[00:24:20] Speaker 01:
No, no.

[00:24:22] Speaker 01:
What happened twice before was some sort of scam.

[00:24:28] Speaker 01:
not this particular scam necessarily, not the same employee.

[00:24:33] Speaker 01:
I mean, all that is alleged in the complaint is that somebody in the bank's investigation department said that, oh, the same similar sort of thing happened twice before.

[00:24:46] Speaker 01:
Well, that's way different from saying Jane Doe gave a phone number out twice before, if that had been the case.

[00:24:57] Speaker 01:
If it were Jane Doe giving out phone numbers repeatedly, you know, invagling customers into scam schemes, that'd be one thing.

[00:25:08] Speaker 03:
Mr. Childer, I'm not sure we want to adopt a rule that gives a bank a free pass for the first time and you can only state a claim against it even under

[00:25:16] Speaker 03:
a motion to dismiss, only when you can allege that it had happened once before.

[00:25:20] Speaker 01:
I agree, but we were talking about the kind of additional allegations that could lead to liability.

[00:25:28] Speaker 01:
I'm not saying we get a free pass, but there has to be some fact, excuse me,

[00:25:36] Speaker 01:
fact that leads the bank to know that something is wrong and needs to get done.

[00:25:42] Speaker 01:
Here, there's no allegation that Jane Doe did anything wrong before.

[00:25:46] Speaker 01:
There's no allegation that the bank had any reason to suspect her.

[00:25:53] Speaker 01:
And this gets to one of the other points I wanted to make about the three California Supreme Court cases.

[00:26:02] Speaker 01:
What the California Supreme Court says is not only do they look at whether the crime grew out of the employment, but also whether imposing respondeat superior liability under the circumstances of the case would promote the three goals of the respondeat superior doctrine.

[00:26:23] Speaker 01:
And those are preventing harm, compensating victims,

[00:26:28] Speaker 01:
and equitably distributing the losses of the enterprise.

[00:26:33] Speaker 01:
On preventing harm, you know, that's something that the bank couldn't do here.

[00:26:41] Speaker 01:
It can't prevent somebody whom it has no knowledge that there

[00:26:50] Speaker 01:
doing wrong from proceeding.

[00:26:56] Speaker 03:
Do you have a case I'd ask your friend about whether, does the bank have a policy of not allowing its employees to give out phone numbers?

[00:27:06] Speaker 01:
I can't answer that question.

[00:27:08] Speaker 01:
I don't know.

[00:27:09] Speaker 03:
Okay.

[00:27:11] Speaker 01:
You know, bank policy.

[00:27:12] Speaker 03:
If it did have a policy, do you have a case that says that that would be enough to take DOE outside of the scope of employment?

[00:27:18] Speaker 01:
No, and my opponent is quite correct in saying that Perez says that the mere fact that the employee violates an employer's policy doesn't necessarily mean that the employer escapes respondeat superior liability.

[00:27:39] Speaker 01:
However, on the

[00:27:43] Speaker 01:
if we can go from prevention of harm, which I think is difficult or impossible in this case, and certainly impossible as to the co-conspirators over whom the bank exercises no control whatsoever, we move to the second policy, which is assuring compensation.

[00:28:10] Speaker 01:
It sounds, when you read the words, as if that means, well, wealthy bank, you know, obviously can pay where Ma can't find the real perpetrators, but that's not the way the Supreme Court looks at it.

[00:28:27] Speaker 01:
In Lisa M. and John R., it looked at whether the loss was insurable.

[00:28:37] Speaker 01:
And here, it would not be intentional torts.

[00:28:40] Speaker 01:
They're not insurable.

[00:28:41] Speaker 01:
Insurance Code Section 533 prohibits it.

[00:28:45] Speaker 01:
And typical bank insurance policies like blanket bonds and general liability insurance policies don't cover this sort of loss.

[00:28:55] Speaker 01:
And the third category or policy that they looked at is the equitable distribution of loss and here,

[00:29:07] Speaker 01:
that Lisa M. said that factor is basically a restatement of whether the employee's conduct was so unusual and startling that it would seem unfair to impose the resulting loss on the employer, and I think that's the case here.

[00:29:29] Speaker 01:
Now, I did want to mention one other case, if I might, which is Lusk versus Kellogg.

[00:29:37] Speaker 01:
Because I think it is the case that, other than this court's Oakey decision, most closely resembles the facts of this case, there a bank teller defrauded the bank's customer by getting the customer to lend the teller personally $50,000, which the teller never repaid.

[00:30:01] Speaker 01:
And the district court in that case

[00:30:05] Speaker 01:
held that respondeat superior did not apply because the teller's actions were clearly personally motivated and the motivation was not generated by her employment.

[00:30:16] Speaker 01:
The same thing implies here.

[00:30:19] Speaker 01:
The motivation of Jane Doe, if she ever existed, was her own.

[00:30:25] Speaker 01:
She was involved in a crime spree or conspiracy.

[00:30:31] Speaker 01:
had nothing to do with her employment.

[00:30:33] Speaker 01:
The employment simply gave her the opportunity to conduct the criminal enterprise that she was involved in.

[00:30:41] Speaker 05:
You know, what I find interesting here is that the employment, given that it's her bank and there's some sense of fiduciary obligation and trust in your bank, it kind of lends a little credibility to the scheme that

[00:30:59] Speaker 05:
the bank employee gave her.

[00:31:01] Speaker 05:
The employment seems to have ensured that the scheme would work.

[00:31:08] Speaker 05:
She would follow up and call that number.

[00:31:16] Speaker 01:
You have greater faith in banks than I guess I do.

[00:31:19] Speaker 01:
I represent them.

[00:31:20] Speaker 05:
You represent them.

[00:31:21] Speaker 05:
Okay.

[00:31:22] Speaker 05:
So you know.

[00:31:22] Speaker 05:
Okay.

[00:31:23] Speaker 05:
Never mind.

[00:31:27] Speaker 01:
Okay.

[00:31:29] Speaker 01:
All right.

[00:31:30] Speaker 01:
It's just a question I had.

[00:31:32] Speaker 01:
Okay.

[00:31:32] Speaker 01:
To answer your question, let me just say on one last thing.

[00:31:36] Speaker 01:
Let's not send this video to your... I'm sorry.

[00:31:45] Speaker 01:
The business of ratification and police officers reports came up.

[00:31:50] Speaker 01:
I just wanted to point out that the allegation about needing to provide a copy of the investigation, all that stuff, is based on a statute that doesn't apply here.

[00:32:03] Speaker 01:
It's 1693F, I believe, of Title 15, which is part of the Electronic Funds Transfer Act.

[00:32:13] Speaker 01:
That act does not apply to wire transfers.

[00:32:16] Speaker 05:
Okay.

[00:32:17] Speaker 05:
Thank you, Council.

[00:32:18] Speaker 05:
Thank you.

[00:32:19] Speaker 05:
You have time reserved to rebut.

[00:32:23] Speaker 05:
Ms.

[00:32:23] Speaker 05:
Lehman.

[00:32:26] Speaker 04:
Thank you.

[00:32:27] Speaker 04:
Just really quickly.

[00:32:29] Speaker 04:
I think the important thing to remember is the standard review in this case, which I already discussed, that inferences must be in our favor, the facts must be construed that we plead must be true, and this court can use its common sense judicial experience in construing our complaint to sufficiently state a cause of action.

[00:32:48] Speaker 02:
I mean, it would certainly be a closer case if this person was a teller

[00:32:55] Speaker 02:
and in their duties as a teller, maybe they're required to provide certain kinds of information.

[00:33:01] Speaker 02:
This person, Jane Doe, as alleged, was a customer service representative that provided one phone number and nothing else.

[00:33:09] Speaker 02:
I'm wondering to counsel on the other sides that this is sort of outside, didn't grow out of her, you know, employment.

[00:33:23] Speaker 02:
What do you make of that?

[00:33:25] Speaker 04:
I absolutely disagree that the fact that she was the customer service representative greeter that put her in a less trustworthy or presenting as a trustworthy person.

[00:33:40] Speaker 04:
You know, when you go to the bank, you specifically.

[00:33:42] Speaker 02:
But not less trustworthy, more of not within the scope of the work, I guess.

[00:33:47] Speaker 04:
Okay.

[00:33:48] Speaker 02:
And not growing out of that work.

[00:33:50] Speaker 02:
Okay.

[00:33:50] Speaker 04:
Customers, I continue to disagree.

[00:33:54] Speaker 04:
customer service and you provide information about banking transactions and, you know, about your accounts and things to do.

[00:34:03] Speaker 04:
That is their job.

[00:34:05] Speaker 04:
They are, I would say, more supervisory than even the tellers because, oh, you want to deposit a check, go see this person.

[00:34:12] Speaker 04:
You want to open an account, see this person.

[00:34:14] Speaker 04:
You want to add someone, call this number.

[00:34:16] Speaker 04:
I would say that they are actually more powerful and have more interaction and more opportunities, if you will.

[00:34:24] Speaker 02:
uh... uh... to commit towards but i mean i'm a scammer contacts any manages to uh...

[00:34:34] Speaker 02:
Let's say that there's this scamming group of people, as there are, who target employees within banks and say, your job is just to provide phone numbers to redirect these individuals.

[00:34:50] Speaker 02:
That's your job.

[00:34:52] Speaker 02:
That's all you need to do.

[00:34:53] Speaker 02:
And do that across the country.

[00:34:56] Speaker 02:
then the bank is liable in every single one of those situations is what you're saying.

[00:35:02] Speaker 04:
I don't think I'm saying that.

[00:35:04] Speaker 04:
I'm saying that it depends on the specific facts of this case because scope of employment for Spaniard Superior is a factual question.

[00:35:15] Speaker 04:
and it's supposed to be construed broadly.

[00:35:17] Speaker 04:
Like for example, if Jane Doe had given Ma a phone number in the parking lot or outside the door, that that would not be within the scope of her employment.

[00:35:31] Speaker 04:
I think the test

[00:35:32] Speaker 04:
And Juarez talks about this.

[00:35:35] Speaker 04:
I mean, it is hard, I agree, is finding something within the scope of employment when it's an intentional, malicious tort, because almost by definition, it is not what they were supposed to do.

[00:35:48] Speaker 04:
But the law is replete with examples.

[00:35:51] Speaker 04:
where intentional torts and wrongdoing, violent, bad stuff, even sexual assault, is within the scope of employment to hold the employer liable.

[00:36:03] Speaker 04:
And I would say that the test seems to be, and this is the Samantha Bee case, which I believe might be cited in Juarez, and actually the California

[00:36:14] Speaker 04:
jury instruction on respond yet superior states that if it's predictable or foreseeable that the employees will commit this intentional tort.

[00:36:26] Speaker 04:
of the type of which liability is sought, then there is respondeat superior.

[00:36:31] Speaker 04:
And the very nature that they are the customer service representatives answering questions about banks and they have so much authority and so much trust is given to them.

[00:36:43] Speaker 04:
I mean, banking institutions are who we trust the most with our essentially financial lives.

[00:36:49] Speaker 04:
And it is reasonably foreseeable

[00:36:51] Speaker 04:
if you said the scammers would target someone who worked at a bank, because that would be the person that would be trusted.

[00:36:57] Speaker 03:
Ms.

[00:36:57] Speaker 03:
Lehman, I wanted to ask this earlier, but the problems we're having here with a DOE plaintiff, the civil rules in a fraud case, the civil rules address with Rule 9, which requires fraud to be pleaded with particularity.

[00:37:14] Speaker 03:
Fraud is an element of the California statutes here.

[00:37:18] Speaker 03:
Do you have any authority, one way or the other,

[00:37:21] Speaker 03:
Why you didn't need to meet the rule nine requirements to plead what?

[00:37:26] Speaker 03:
Ms.. Doe did and defrauding Ms.. Maul Okay, so okay.

[00:37:30] Speaker 04:
We did not have a cause of action for fraud Is it not an element of the abuse?

[00:37:36] Speaker 03:
I mean it's fine if you know law that says that it's not maybe that's why it didn't come up But it just it strikes me as we're talking about these things that the way we usually deal with these sorts of

[00:37:45] Speaker 03:
allegations of fraud by an unknown person is required that they'd be pled with particularity.

[00:37:51] Speaker 04:
We pled Elder Abuse Act claims and we pled a violation of the UCL and there is no requirement for Elder Abuse Act claims that it be pled with particularity

[00:38:02] Speaker 04:
And essentially that's what elder abuse is when you quote unquote defraud an elderly person of their property.

[00:38:10] Speaker 03:
But that's a federal question of pleading.

[00:38:13] Speaker 03:
That's not answered by California law.

[00:38:14] Speaker 03:
It's a federal question of pleading.

[00:38:16] Speaker 03:
If California law provides a claim for fraud, and fraud is an element of that, why wouldn't Rule 9 require pleading with particularity?

[00:38:27] Speaker 04:
I don't think fraud's an element of an elder abuse claim.

[00:38:30] Speaker 04:
OK.

[00:38:31] Speaker 04:
OK, a taking.

[00:38:33] Speaker 04:
If you look at the definition of a wrongful taking of property of an elder, it's with knowledge that it would... Or dependent adult for a wrongful use with intent to defraud or both.

[00:38:49] Speaker 03:
So it could be either.

[00:38:50] Speaker 03:
Okay.

[00:38:51] Speaker 03:
Thank you.

[00:38:51] Speaker 04:
And then I would final the under area.

[00:38:53] Speaker 04:
that if a procedure rule has a substantive effect, we apply.

[00:38:58] Speaker 05:
Okay.

[00:38:58] Speaker 05:
Well, I guess I have one last question.

[00:39:01] Speaker 05:
If you find out the identity of Jane Doe and she is likely also a California resident if she was employed at the bank, then would federal jurisdiction be defeated?

[00:39:17] Speaker 04:
Yes, absolutely, that we made an ex-party motion and a formal motion before the motion to dismiss to say that we ought to have the basic jurisdictional discovery.

[00:39:29] Speaker 04:
And the trial court made the mistake of applying the test for jurisdictional discovery for removal purposes.

[00:39:37] Speaker 04:
But our case had already been removed.

[00:39:39] Speaker 04:
And as we briefed, I think, very well in our reply brief is that,

[00:39:44] Speaker 04:
the court is an abuse of discretion per se to dismiss the case on the merits when jurisdiction is questionable and discovery is not allowed.

[00:39:56] Speaker 04:
And we say it's prejudicial probably in two respects.

[00:39:59] Speaker 04:
Number one, because we would get out of this DOS problem, we believe, in state court.

[00:40:03] Speaker 04:
And number two, having more information about Jane Doe would help our complaint.

[00:40:08] Speaker 04:
For example, maybe she was a manager, and that would more directly attribute

[00:40:13] Speaker 04:
her knowledge to the bank.

[00:40:17] Speaker 05:
All right.

[00:40:18] Speaker 05:
Thank you very much, Council.

[00:40:21] Speaker 05:
Ma versus Bank of America is submitted.