# Sun'n Sand, Inc. v. United California Bank

> California Supreme Court · July 20, 1978 · 21 Cal. 3d 671

URL: https://www.frixlaw.com/law-library/cases/9613725

## Case

- **Full name:** SUN'N SAND, INC., Et Al., Plaintiffs and Appellants, v. UNITED CALIFORNIA BANK, Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** July 20, 1978
- **Citations:** 21 Cal. 3d 671; 148 Cal. Rptr. 329; 582 P.2d 920; 21 U.C.C. Rep. Serv. 2d (West) 1003; 24 U.C.C. Rep. Serv. (West) 667; 1978 Cal. LEXIS 255
- **Precedential status:** Published
- **Opinion:** Concurring in part by Sullivan
- **Judges:** Mosk
- **Cited by:** 183 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by statute, as recognized in Lee Newman, M.D., Inc. v. Wells Fargo Bank, N.A..
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9613725

## How later opinions describe it (automated extraction)

- holding that a bank has a limited duty of inquiry when a check presented for deposit bears some objective signs of fraud
- stating that “[w]e need not consider whether a special relationship exists between a collecting bank and the drawer of a check”

## Opinion text

*709 SULLIVAN, J., * Concurring and Dissenting.
While I am in general agreement with the majority opinion, I do not endorse its rationale in all respects. Basically, I agree with the majority’s conclusions that the first, fifth and sixth counts of plaintiffs’ second amended complaint state facts sufficient to constitute a cause of action, subject to limitations on the amount of recovery based on applicable statutes of limitation. I further agree with their conclusions that the second, third and fourth counts fail to state facts sufficient to constitute a cause of action.
It is noteworthy, however, and the record so discloses, that upon the filing of the second amended complaint, defendant did not file a new demurrer. Instead, the parties stipulated in writing that defendant’s “general demurrers” to plaintiffs’ first amended complaint might “be deemed to be general demurrers to Plaintiffs’ Second Amended Complaint” and that “Plaintiffs cannot further amend their complaint beyond the Second Amended Complaint.” Although defendant interposed both general and special demurrers to the first amended complaint, I would construe the above stipulation to mean that defendant was incorporating by reference only its general demurrers and was abandoning its special demurrers. In view of this construction, I would respectfully suggest that on remand the trial court is under no obligation to rule on the points presented by the special demurrers to the first, fifth and sixth counts under the rule set forth in Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 425-426 [ 282 P.2d 890 ]; Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d 713, 720 [ 128 P.2d 522 , 141 A.L.R. 1358 ]; and Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 104 [ 114 P.2d 1 ], Since plaintiffs stipulated that they cannot further amend their complaint, I see no reason to remand the second, third and fourth counts.
I therefore agree that the judgment (order of dismissal) should be affirmed as to the second, third and fourth counts and reversed as to the first, fifth and sixth counts, and; that as to said three counts last mentioned, the cause be remanded to the trial court with directions to overrule the demurrers and to allow defendant a reasonable time within which to answer.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9613725. Public record. Not legal advice.