DAS v. BANK OF >AMERICA >



















Filed 6/28/10;
pub. order 7/12/10
(see end of opn.)















IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR








>

BAISHALI DAS, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., Defendant and Respondent.

B221002 (Los Angeles County Super. Ct. No. VC053211)

STORY CONTINUE
FROM PART I….





In view of this analysis, we also reject appellant's
suggestions that the imposition of the reporting duty enlarged respondent's
exposure to potential tort claims based on other theories. Subdivision (g), by its plain language,
precludes any expansion of tort liability.
For this reason, the complaints do not state a claim for constructive
fraud predicated on a breach of the reporting duty; in addition, the existence
of reporting duty does not place respondent within the scope of Tarasoff > v. Regents of University of California
(1976) 17 Cal.3d 425, 436-44, in which our Supreme Court held that
psychotherapists are obliged in some circumstances to report impending criminal
activity by their clients.

Appellant's
reliance on Landeros > v. Flood (1976) 17 Cal.3d 399, Alejo > v. City of Alhambra (1999) 75
Cal.App.4th 1180, and Klein v. Bia Hotel Corp. (1996) 41 Cal.App.4th 1133 is
misplaced. In each case, the court held
that a statute or regulation imposing a duty to report supported the
presumption of negligence under Evidence Code section 669. In none of them, however, did the pertinent
statute or regulation contain a provision affirmatively foreclosing the use of
the reporting duty for purposes of a negligence claim. (Landeros v. Flood,
supra, 17 Cal.3d at pp. 413-415 [Pen.
Code, §§ 11160, 11161, & former § 11161.5]; >Alejo v. City of Alhambra, supra,
75 Cal.App.4th at pp. 1183-1190 [Pen. Code, §§ 11165-11174.3]; >Klein v. Bia Hotel
Corp., supra, 41 Cal.App.4th at
pp. 1136, 1140 [Cal.Code Regs.,
tit. 22, § 87211].) As explained above,
the inclusion of subdivision (g) in Welfare and Institutions Code section
15630.1 is fatal to a claim of negligence per se.^[1]

Pointing to
excerpts from the legislative history of section 15630.1, appellant contends
that the Legislature imposed the reporting duty to protect elderly individuals
such as her father. We do not disagree
with this proposition. However, nothing
in the legislative history before us suggests that subdivision (g) is
ambiguous, or that it was enacted to achieve a purpose other than that conveyed
by its plain language. Under these
circumstances, we may not interpret subdivision (g) in a manner that will
frustrate the Legislature's intent in enacting it. (See WRI
Opportunity Loans II, LLC v. Cooper, supra, 154 Cal.App.4th at
p. 538.)

Appellant also
contends that public policy and morality support the imposition of tort liability
on respondent, noting that respondent's failure to comply with the statutory
reporting duty played a prominent causal role in her father's financial
injuries. As our Supreme Court has
explained, in interpreting a statute, our role as a court is limited: â€