Filed 11/7/14 Stern v. Bank of America CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


KENNETH M. STERN, as Personal                                        B254751
Representative, etc.,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. PC055008)

         v.

BANK OF AMERICA, N.A., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Melvin D. Sandvig, Judge. Affirmed.


         Law Offices Kenneth M. Stern, Kenneth M. Stern, in pro. per., for Plaintiff and
Appellant.


         Severson & Werson, Jan T. Chilton, Erik Kemp for Defendants and Respondents.


                  ___________________________________________________
       The son of a disabled woman tried to open a bank account for his mother, using a
power of attorney. Two banks rebuffed his efforts, citing policies requiring customers to
be physically present when opening a new account at their offices, to comply with federal
regulations regarding customer identification. The trial court, in turn, rebuffed the
ensuing lawsuit alleging violations of the Unruh Civil Rights Act (the Unruh Act) and the
Probate Code, dismissing the case on demurrer. We affirm.
                                          FACTS
       In 2011, Kenneth Stern went to a Bank of America branch office to open a new
account for his mother, Thelma Stern, an invalid in her nineties with Alzheimer’s Disease
who used a wheelchair. The pleading alleges that “because of her disabilities it was not
convenient to bring plaintiff to the bank.” Kenneth Stern attempted to open the account
using a power of attorney from his mother and her California Identification Card from the
DMV. Although Mrs. Stern had an existing account, the bank refused to open a new
account unless she came in personally.
       Kenneth Stern also went to a Wells Fargo Bank branch office. He explained Mrs.
Stern’s health condition to a representative, and tried to open an account, using the power
of attorney and the state identification card. Although Mrs. Stern had an existing account
at Wells Fargo, the bank refused to open a new account unless she came in.
       Kenneth Stern filed suit against Bank of America and Wells Fargo on behalf of his
mother. The amended complaint asserts violations of the Unruh Act and the Probate
Code. The banks demurred, arguing that the pleading does not state facts sufficient to
constitute a cause of action.
       The trial court sustained the demurrer without leave to amend. It found that state
governments cannot dictate requirements to national banks for opening accounts: the
banks must be allowed to operate in a way that prevents fraud or illegal conduct. The
Sterns allege no facts showing that they were denied an account because Mrs. Stern was
elderly or disabled. The banks were willing to open an account if Mrs. Stern was
physically present, or she could have done so by telephone or online. Even if Mrs.
Stern’s claims are not preempted by federal law, the banks’ requirement of physical

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presence bears a reasonable relation to customer identification programs intended to
guard against fraud and identity theft.
       The court entered a signed judgment of dismissal in favor of the banks on
December 18, 2013. It denied a motion for a new trial in February 2014. Appeal is taken
from the orders dismissing the case and denying a new trial.1
                                      DISCUSSION
1. Ruling on Demurrers
       Appeal lies from the judgment of dismissal after demurrers are sustained without
leave to amend. (Code Civ. Proc., §§ 581d, 904.1, subd. (a)(1); Serra Canyon Co. v.
California Coastal Com. (2004) 120 Cal.App.4th 663, 667; Tanen v. Southwest Airlines
Co. (2010) 187 Cal.App.4th 1156, 1162.) We review de novo the ruling on the
demurrers, exercising our independent judgment to determine whether a cause of action
has been stated. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.)
We assume that the pleading’s material allegations are true. (Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125.)
       a. Unruh Act Claim
       The Unruh Act entitles everyone to full and equal services in business
establishments, regardless of physical or mental disability or medical condition. (Civ.
Code, § 51, subd. (b), (e)(1).) It provides substantive protection against invidious
discrimination in public accommodations. Remedies for violations of the Unruh Act
include a private action for damages. (Civ. Code, § 52; Munson v. Del Taco, Inc. (2009)
46 Cal.4th 661, 667.)
       The Unruh Act “forbids a business establishment generally open to the public
from arbitrarily excluding a prospective customer.” (In re Cox (1970) 3 Cal.3d 205, 217;
Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167 [Unruh Act “imposes a
compulsory duty upon business establishments to serve all persons without arbitrary


1      Mrs. Stern died after judgment was entered. Kenneth Stern is her personal
representative and successor-in-interest in this litigation. He is a lawyer.


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discrimination”].) By the same token, a business can “impose upon patrons reasonable
regulations rationally related to the services performed.” (In re Cox, supra, 3 Cal.3d at
p. 217, fn. 13.) This issue may be decided on demurrer “when the policy or practice of a
business establishment is valid on its face because it bears a reasonable relation to
commercial objectives appropriate to an enterprise serving the public.” (Harris v.
Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165.)
       The determination of a reasonable commercial objective should not “involve the
courts of this state in a multitude of microeconomic decisions that we are ill equipped to
make.” (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1166.) Many
businesses, including banks, have policies to determine which customers to deal with and
on what terms. These businesses need not have to defend their policies against legal
challenges that they acted arbitrarily in refusing to transact business, so long as their
policy is “neutral” with respect to customers’ race, sex, religion or other personal
characteristic protected by the Unruh Act. (Harris, at pp. 1167-1168.) A commercial
policy may have a disparate impact on one group without giving rise to a claim: the
Unruh Act only covers “intentional acts of discrimination, not disparate impact.”
(Harris, at p. 1172.)
       A bank does not engage in unreasonable, arbitrary, or invidious discrimination
based on a protected personal characteristic merely because it requires suitable
identification from people who wish to open accounts. The plaintiffs in Howe v. Bank of
America N.A. (2009) 179 Cal.App.4th 1443 contended that they were harmed, in
violation of the Unruh Act, because Bank of America favored foreigners over Americans
by allowing noncitizens to open accounts without providing Social Security numbers.
(Howe, at p. 1447.) In affirming the dismissal of the lawsuit on demurrer, the Court of
Appeal noted that federal law requires that banks obtain Social Security numbers from
U.S. citizens, while allowing alternative identification for foreigners. Though the bank
could impose a higher identification requirement on foreigners than the minimum
requirements imposed by federal law, it did not act arbitrarily by applying the minimum



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standards: the practice bore a reasonable relationship to the bank’s commercial
objectives and was valid on its face, as a matter of law. (Id. at pp. 1452-1454.)
       Federal law requires a bank to adopt procedures that will enable it “to form a
reasonable belief that it knows the true identity of each customer,” which may be
accomplished if the customer appears with a government-issued identification bearing a
photograph. (31 C.F.R. § 1020.220.) The banks’ policy of checking identification
complies with the mandate to verify the “true identity” of their customers. The policy is
neutral with respect to the personal characteristics listed in the Unruh Act: it applies to
everyone, regardless of race, sex, color, religion, ancestry, national original, disability,
medical condition, marital status, or sexual orientation. (Civ. Code, § 51, subd. (b).)
Requiring customers to present photo identification depicting themselves is a reasonable
and prudent means of preventing fraud and identity theft.
       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. (Koebke v. Bernardo
Heights Country Club (2005) 36 Cal.4th 824, 854.)
       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.
       The complaint does not reference the Americans with Disabilities Act (ADA). (42
U.S.C. § 12101 et seq.) Plaintiff argued the applicability of the ADA in the trial court
and continues to do so on appeal. The opening brief states that the complaint can be
amended to allege an ADA violation.

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       The Unruh Act is violated if individual rights are abridged under the ADA. (Civ.
Code, § 51, subd. (f).) The Unruh Act comprehensively incorporates ADA accessibility
standards. (Munson v. Del Taco, Inc., supra, 46 Cal.4th at p. 673.) While the ADA itself
does not allow a private action by a disabled individual denied access to public
accommodations, “by incorporating the ADA into the Unruh Civil Rights Act,
California’s own civil rights law covering public accommodations, which does provide
for such a private damages action, the Legislature has afforded this remedy to persons
injured by a violation of the ADA.” (Munson, at p. 673.) “A plaintiff who establishes a
violation of the ADA [ ] need not prove intentional discrimination in order to obtain
damages.” (Id. at p. 665.)
       Banks are not exempted from the ADA. (Quinn v. U.S. Bank NA (2011) 196
Cal.App.4th 168, 186.) To establish an ADA violation, plaintiff must show (1) a
disability; (2) defendant owns or operates a public accommodation; and (3) “plaintiff was
denied public accommodations by the defendant because of his disability.” (Arizona ex
rel. Goddard v. Harkins Amusement Enters., Inc. (9th Cir. 2010) 603 F.3d 666, 670.)
The only issue here is the third element.
       Plaintiff argues that businesses must provide reasonable modifications for disabled
persons. (42 U.S.C. § 12182, (b)(2)(A)(ii).) The opening brief cites cases in which
disabled persons were not properly accommodated while visiting a business: PGA Tour,
Inc. v. Martin (2001) 532 U.S. 661 (requiring a disabled golfer to be allowed to use a golf
cart because he could not walk the course); Fortyune v. American Multi-Cinema, Inc. (9th
Cir. 2004) 364 F.3d 1075 (cinema had to arrange for a disabled patron to be able to sit
with his wife at a wheelchair-accessible seat); Lentini v. California Center for the Arts
(9th Cir. 2004) 370 F.3d 837 (disabled patron had to be allowed to bring a service animal
to a theatre).
       The pleading establishes that Mrs. Stern was not physically present at defendant
banks’ offices. She was not turned away because of her disability, or denied service
because defendants failed to provide access ramps or entry to their facilities. Instead, her
claim is that defendants must provide different—and less secure—personal identification

                                             6
procedures for her than for all other customers. A “public accommodation” under the
ADA is a place, not a type of service. (Ford v. Schering-Plough Corp. (3d Cir. 1998)
145 F.3d 601, 612-613; Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th
1224, 1238-1239 [cable company need not provide different options to a blind patron
because television is a service, not a place].) The ADA “does not require provision of
different goods or services, just nondiscriminatory enjoyment of those that are provided.”
(Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1115.)
       The opening brief shows that defendants’ policies accommodate the needs of
disabled people. If allowed to amend, Kenneth Stern would allege that an account “could
be opened on the internet or by telephone,” a possibility that did not occur to him, or he
was unaware of, at the time he sought to open an account for his mother. Defendants
agree that accounts can be opened without physical presence at a branch office, by
telephone or by computer. There is no factual dispute, given the parties’ agreement.
Because Mrs. Stern—through her attorney-in-fact—could open a new account without
going personally to a branch office, this is a reasonable accommodation giving access to
services despite her disability, as a matter of law.
       b. Probate Code Violations
       The complaint alleges violation of a Probate Code provision requiring third
persons to accord an attorney-in-fact acting pursuant to a power of attorney the same
rights and privileges that would be accorded a principal if the principal were personally
present. (Prob. Code, § 4300.) 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.)
       The complaint seeks only injunctive relief for alleged violations of the Probate
Code. It reads, “Plaintiff is entitled to an injunctive order prohibiting defendants . . .
from refusing to honor said power of attorney.” As defendants observe, the request for
an injunction is moot: Mrs. Stern is deceased, so she cannot be granted an injunction
obliging the banks to open a new account for her. Kenneth Stern asks this court to decide
the issue, even if it is moot, because it is a matter of general public interest. He also

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states that he could amend the pleading to allege monetary damages (loss of interest
income) and the cost of attorney fees, instead of seeking injunctive relief. Even if the
pleading were amended, it would fail.
       The statute plaintiff relies upon states that “a third person is not required to honor
the attorney-in-fact’s authority or conduct business with the attorney-in-fact if the
principal cannot require the third person to act or conduct business in the same
circumstances.” (Prob. Code, § 4300.) Bank accounts are contractual relationships.
(Bank of America Assn. v. California Bk. (1933) 218 Cal. 261, 273-274; Bullis v. Security
Pac. Nat. Bank (1978) 21 Cal.3d 801, 813 [“breach of a deposit contract” between bank
and depositor].) Banks are not required to contract with anyone who walks in and
demands an account. Mrs. Stern could not compel the banks to do business with her and
so, by extension, Kenneth Stern could not do so either.
       In any event, the banks have a complete defense. They may refuse to accept a
power of attorney if “authorized or required by state or federal statute or regulation.”
(Prob. Code, § 4406, subd. (c).) Federal regulations require banks to adopt procedures to
ensure the true identity of customers. Defendants’ policy of checking identification when
opening an account at a branch office is in furtherance of the federal mandate to prevent
fraud, identity theft, or money-laundering. (31 C.F.R. § 1020.220.)
2. Denial of Motion for New Trial
       A motion for new trial may be brought when the court sustains a demurrer or
grants judgment on the pleadings. (Carney v. Simmonds (1957) 49 Cal.2d 84, 90-91.)
The opening brief lists three grounds for a new trial: irregularity in the proceedings or
abuse of discretion that prevented a fair trial; insufficient evidence to justify the decision;
or error in law. (Code Civ. Proc., § 657, causes 1, 6, 7.) The trial court’s ruling on a
motion for new trial will not be disturbed unless there was an abuse of discretion,
considering the entire record. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
859; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.)
       In a one-paragraph argument, Kenneth Stern contends that a new trial should have
been granted “[f]or the reasons chronicled herein.” The contention is, in short, a rehash

                                               8
of the arguments he made in opposition to the demurrers. We have addressed his points
in the preceding section and found them lacking. The trial court did not abuse its
discretion by denying a new trial.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                         BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       HOFFSTADT, J.




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