Wednesday, November 12, 2014
Bank Was Justified in Refusing to Open Account for Woman in Her 90s, With Alzheimer’s, Not Personally Present—C.A.
Power of Attorney of Lawyer/Son Held Insufficient Authority
By a MetNews Staff Writer
The refusal of two banks to open an account for a woman in her nineties who was an invalid with Alzheimer’s Disease, upon presentation by her son of a power of attorney and his mother’s DMV identification card, did not constitute violations of California law, the Court of Appeal for this district has ruled, declaring that the banks were justified in insisting that the woman come in personally.
The decision Friday by Div. Two, in an opinion by Presiding Justice Roger Boren, affirms a judgment of dismissal entered following the sustaining of demurrers without leave to amend by Los Angeles Superior Court Judge Melvin D. Sandvig. The opinion was not certified for publication.
The son, Woodland Hills attorney Kenneth M. Stern, brought an action against Bank of America and Wells Fargo after their branches, at which the mother had an existing account, would not open a new one without the woman being present. Stern sued under the Unruh Act, which bars “a business establishment generally open to the public from arbitrarily excluding a prospective customer,” and under Probate Code §4300.
Unruh Act Inapplicable
Explaining why an action did not lie under the Unruh Act, Boren said:
“The Unruh Act does not permit plaintiff to argue that the banks’ policies have a negative effect on the disabled: the policy is valid so long as it does not intentionally, arbitrarily and invidiously exclude disabled people from bank services. Plaintiff does not allege that the banks intentionally and categorically refuse to open accounts for disabled people. On the contrary, the pleading states that the banks were willing to open an account for Mrs. Stern if she were present. Plaintiff cannot rely on the effect of a facially neutral policy on a particular group to infer discriminatory intent.
“As pleaded, plaintiff’s Unruh Act claim fails because it does not demonstrate that defendants had an invidious discriminatory intent. Rather, the complaint shows a facially neutral and reasonable business policy that is consistent with federal regulations requiring adequate customer identification. Plaintiff has at best alleged that the banks’ facially neutral policy has a disparate impact on her, which is not a cognizable claim.”
Probate Code Provision
Boren went on to examine Stern’s cause of action under §4300 which provides:
“A third person shall accord an attorney-in-fact acting pursuant to the provisions of a power of attorney the same rights and privileges that would be accorded the principal if the principal were personally present and seeking to act….”
The jurist declared:
“Another section states that a bank is not required to honor a power of attorney if the principal is not currently a depositor of the bank. (Prob. Code, § 4310.)”
Boren did not proceed to square that statement with his earlier recitation that the mother was a current depositor at both defendant banks.
He added that the only relief sought by Stern under §4300 was an injunction. Revealing a fact concerning the mother, not previously set forth, he said:
“As defendants observe, the request for an injunction is moot: Mrs. Stem is deceased, so she cannot be granted an injunction obliging the banks to open a new account for her.”
Boren rejected various proffered basis for remanding the case to permit an amending of the complaint.
The case is Stern v. Bank of America, B254751.
Copyright 2014, Metropolitan News Company