Filed 12/11/13 Global Swift Funding v. Bank of America CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


GLOBAL SWIFT FUNDING LLC,                                            H038712
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. 109CV145993)

         v.

BANK OF AMERICA CORPORATION,

         Defendant and Respondent.


         Plaintiff Global Swift Funding LLC appeals from a judgment entered after a grant
of summary judgment to respondent Bank of America Corporation. Plaintiff brought this
action when respondent released funds to Net Courier Services, Inc. (Net Courier), the
defendant in plaintiff's underlying lawsuit, contrary to a stipulated order. On appeal,
plaintiff challenges the trial court's conclusion that plaintiff suffered no damages when
respondent mistakenly released those funds because the error was subsequently remedied
to plaintiff's advantage. We find no error and therefore must affirm the judgment.
                                                     Background
         In 2008 plaintiff pursued an action against Net Courier, which culminated in a
2009 stipulated judgment against Net Courier for $477,701.88, including costs. The
judgment was to be paid in specified installments from December 15, 2008 until satisfied
in full. An order in December 2008, also entered by stipulation, directed respondent's
branch in Half Moon Bay and another branch in San Jose to release the funds in Net
Courier's accounts, which totaled $168,037.92, to the sheriff of each county. The sheriff
was then to distribute half of the proceeds of each levied amount to Net Courier and half
to plaintiff. Thus, plaintiff was to receive $84,018.96 from the disbursement.
       At the Half Moon Bay branch, however, a bank employee released the entire
$68,315.20 in that account directly to Net Courier instead of to the sheriff of San Mateo
County. The bank employee's manager, upon discovering the error at the end of
December, overdrew the account, hoping that Net Courier would replace the funds, but it
did not; instead, it transferred the money to accounts outside respondent's reach.
       To remedy the deficiency, plaintiff obtained an ex parte order on January 12,
2009, directing the release of all the remaining funds at either branch to the sheriff and
then to plaintiff. Respondent then issued two checks to the Santa Clara County sheriff
from the San Jose branch: one for $19, 396.73 and one for $80,325.99. Plaintiff thus
recovered $99,722.72 – more than the amount initially ordered.
       By January 30, 2009, respondent's management decided to "wait and see what
happens." Thus, no further action was taken until mid-April of 2009, when plaintiff's
attorney contacted respondent. At that point respondent did not release any more money
to plaintiff because it had already disbursed the remaining funds pursuant to the court's
second (January 12, 2009) order.
       Plaintiff initiated this action on June 29, 2009, seeking "the approximate amount
of $99,000" for respondent's "failure to maintain control over the attached funds."
Plaintiff did not assert a specific cause of action, but only alleged the violation of Code of
Civil Procedure section 488.455, subdivision (c), in failing to maintain control over the
attached funds.1


1 At the time these events occurred, Code of Civil Procedure section 488.455 provided:
"During the time the attachment lien is in effect, the financial institution shall not honor a
check or other order for the payment of money drawn against, and shall not pay a
withdrawal from, the deposit account that would reduce the deposit account to an amount

                                              2
       Both parties moved for summary judgment. At this point plaintiff no longer
claimed entitlement to $99,000 but sought the $68,315.20 Net Courier had removed from
the Half Moon Bay account.
       In December 2010 the superior court granted respondent's motion on the ground
that plaintiff had suffered no damages as the result of the bank employee's error. Plaintiff
initially appealed from this order, but on December 22, 2011, this court dismissed the
appeal, as it was taken from a nonappealable order with no judgment having ever been
entered. (H036622) On August 8, 2012 the superior court denied plaintiff's summary
judgment motion, and on the same day it entered a final judgment for respondent.
Plaintiff then filed a timely notice of appeal.
                                          Discussion
       Plaintiff's position on appeal comprises three arguments. First, plaintiff contends,
it did suffer damage from respondent's release of the $68,315.20, because (a) "[a]t least
half, and perhaps all," of that amount would have eventually been paid to plaintiff; and
(b) it lost its control over the collection procedure it had set up to ensure regular
payments of Net Courier's $477,701.88 debt. Plaintiff further argues, relying on the
collateral source rule, that any benefit it received by accepting the $99,722.72 awarded in
the subsequent ex parte order did not offset the loss of $68,315.20. Finally, plaintiff
asserts that respondent's conduct after discovering its error constitutes contempt of court,
because by adopting a "wait and see" approach respondent "intentionally" forced plaintiff
to sue to recover the money it should have received in the first place. Plaintiff insists that
"[s]uch conduct should not be left unaddressed"; the remedy, it implies, is reversal of the
judgment so that it can recover its $68,315.20, plus interest.


that is less than the amount attached. For the purposes of this subdivision, in determining
the amount of the deposit account, the financial institution shall not include the amount of
items deposited to the credit of the deposit account that are in the process of being
collected." (Former Code Civ. Proc., § 488.455.)

                                                  3
       The resolution of the central issue, whether plaintiff suffered damage from
respondent's violation of the court's December 19, 2008 order, depends on how the cause
of the loss is properly viewed. Plaintiff takes a broad view: Had respondent not released
the funds and then failed to "make good" on its employee's error, plaintiff would have
been $68,315.20 closer to collecting the full amount of Net Courier's debt. Plaintiff
emphasizes that it "was trying to recover on a $477,000 judgment."
       Respondent, on the other hand, views the erroneous release as causing the loss of
only the $68,315.20, which was remedied when it released the remaining $99,722.72 held
in Net Courier's San Jose account pursuant to the January 12, 2009 ex parte order. Thus,
by receiving more than the original amount allocated to it, plaintiff suffered no damage.
       We find respondent's view more convincing. The release of the money to Net
Courier constituted a violation of an order to pay plaintiff $84,018.96. The payment of
$99,722.72 to plaintiff more than compensated plaintiff for that error. Plaintiff's
anticipated inability to control the payments Net Courier owed in the future is speculative
and irrelevant. The amount of Net Courier's total debt to plaintiff is also irrelevant to
respondent's noncompliance with the December 19, 2008 order. Thus, we discern no
error in the trial court's finding that plaintiff received a remedy for respondent's violation
which exceeded the amount respondent had originally been directed to release. In light
of this conclusion, we need not determine the outcome of the parties' debate over the
applicability of the collateral source rule, as the offset provided by that doctrine is
premised on the existence of damages.
       In its reply brief, plaintiff adopts a new approach. Accusing respondent of
misrepresenting the facts, plaintiff asserts that the true reason for the January 12, 2009
order was not respondent's error and resulting loss of $68,315.20, but Net Courier's
default on its December 15, 2008 installment payment. That default, according to
plaintiff, gave plaintiff the right to all the funds respondent was to send to the sheriff—
i.e., $168,037.92.

                                               4
       Plaintiff finds support for this new theory in a January 12, 2009 declaration from
Melissa Armstrong, plaintiff's attorney in its action against Net Courier. Plaintiff has
asked this court to take judicial notice of -- and augment the record with -- that
declaration. We decline to do either. Plaintiff never asserted its entitlement to the entire
$168,037.92 in its complaint against respondent, in its motion for summary judgment, or
in its opposition to respondent's summary judgment motion. As the Armstrong
declaration was never presented to the trial court, it would be unfair to respondent for us
to include it as new evidence on appeal. (See Panopulos v. Maderis (1956) 47 Cal.2d
337, 341 [party should not be required to defend new theory on appeal based on facts not
presented at trial].) Likewise, the argument raised in plaintiff's reply brief, that Net
Courier's default entitled plaintiff to the entire attached funds, was never presented to the
trial court and is now arriving far too late to be considered at this stage. Reserving an
argument and supporting evidence until the reply brief on appeal, without giving either
the respondent or the trial court an opportunity to consider it, is both unfair and, in this
case, unjustified. (See Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th
1258, 1274 [argument in reply brief forfeited on appeal where plaintiffs failed not only to
present the issue in their opening brief but to present it to trial court]; Hibernia Sav. &
Loan Society v. Farnham (1908) 153 Cal. 578, 584 [reserving points for closing brief is
"not fair to a respondent," and reviewing court "may properly consider them as
waived"].) Consequently, we deny plaintiff's requests to take judicial notice and augment
the record, and we grant respondent's motion to strike the reply brief to the extent that
plaintiff raises new points based on the Armstrong declaration.




                                               5
                                 Disposition
     The judgment is affirmed.




                                   _______________________________
                                   ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
PREMO, J.




                                     6
