Mark Sundahl v. Comerica Bank; Conduent State and Local Solutions, Inc. d/b/a Direct Express; Does 1 through 10, inclusive

• Court: District Court, S.D. California
• Decided: January 15, 2026
• Docket: 3:25-cv-01473
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK SUNDAHL, Case No.: 3:25-cv-01473-RBM-DDL

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS PLAINTIFF’S COMPLAINT 14 COMERICA BANK; CONDUENT PURSUANT TO FEDERAL RULE STATE AND LOCAL SOLUTIONS, 15 OF CIVIL PROCEDURE 12(B)(6) INC. d/b/a DIRECT EXPRESS and

16 DOES 1 through 10, inclusive, [Doc. 2] 17 Defendants. 18 19 Pending before the Court is Defendants Comerica Bank and Conduent State & Local 20 Solutions, Inc.’s (collectively, “Defendants”) Motion to Dismiss Plaintiff’s Complaint 21 Pursuant to Federal Rule of Civil Procedure 12(b)(6) (“MTD”). (Doc. 2.) Plaintiff Mark 22 Sundahl (“Plaintiff”) filed an Opposition to Defendants’ Motion to Dismiss Complaint 23 (“Opposition”) (Doc. 4) and Defendants filed a Reply in Support of the Motion to Dismiss 24 (“Reply”) (Doc. 7). 25 The Court finds this matter suitable for determination without oral argument 26 pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the MTD (Doc. 2) 27 is GRANTED. 28 1 I. BACKGROUND 2 Plaintiff maintained a bank account with Defendants for his Social Security deposits. 3 (Doc. 1-2, Ex. A [“Complaint”] ¶ 7.)2 “In or around November 2024, a series of fraudulent 4 transactions were made on Plaintiff’s account totaling approximately $6,815.” (Id. ¶ 8.) 5 “Plaintiff immediately disputed the loss of the funds with Defendants.” (Id. ¶ 11.) 6 Although Defendants initially stated they would reimburse Plaintiff, they have yet to do so 7 and “continue to refuse to refund Plaintiff his funds.” (Id. ¶¶ 12, 15.) Plaintiff claims that 8 “Defendants did not perform a reasonable investigation into Plaintiff’s complaint regarding 9 the fraudulent transactions.” (Id. ¶ 14.) 10 On May 6, 2025, Plaintiff initiated this action by filing the Complaint in the Superior 11 Court of the State of California for the County of San Diego (“San Diego Superior Court”) 12 asserting two causes of action for: (1) financial elder abuse under California’s Elder Abuse 13 and Dependent Adult Civil Protection Act, Cal. Welf. & Inst. Code § 15600 et seq. (“Elder 14 Abuse Act); and (2) violations of the Electronic Funds Transfer Act, 15 U.S.C. § 1693 et 15 seq. (“EFTA”). (Doc. 1-2 ¶¶ 17–31.) Defendants removed the Complaint to this Court on 16 June 9, 2025 (see Doc. 1) and filed the instant MTD on June 16, 2025 (see Doc. 2). On 17 July 18, 2025, Plaintiff filed the Opposition. (Doc. 4.) Defendants filed their Reply on 18 July 28, 2025. (Doc. 7.) 19 II. LEGAL STANDARD 20 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), an action may be 21 dismissed for failure to allege “enough facts to state a claim to relief that is plausible on its 22 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 23

24 25 1 The factual summary in this section reflects Plaintiff’s allegations, not conclusions of fact or law by this Court. Well-pleaded factual allegations are accepted as true for purposes 26 of this Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 27 2 The Court cites the paragraph numbers of the Complaint and the CM/ECF electronic 28 1 plausibility when the plaintiff pleads factual content that allows the court to draw the 2 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 3 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a 4 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 5 acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556–57). For purposes of ruling on a 6 Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint as true and 7 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 8 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 9 However, the Court is “not bound to accept as true a legal conclusion couched as a 10 factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the 11 Court “required to accept as true allegations that contradict exhibits attached to the 12 Complaint or matters properly subject to judicial notice, or allegations that are merely 13 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. 14 Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “In sum, for a complaint to survive 15 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from 16 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss 17 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted). 18 III. DISCUSSION 19 A. Financial Elder Abuse (First Cause of Action) 20 Plaintiff alleges that Defendants violated the Elder Abuse Act by “taking, secreting, 21 appropriating, obtaining, or retaining personal property of an elder, or assisting in those 22 activities for a wrongful use or with intent to defraud, or both.” (Doc. 1-2 ¶ 18.) 23 Defendants argue that the financial elder abuse claim fails because Plaintiff does not 24 sufficiently allege that Defendants had actual knowledge of or were involved in the alleged 25 fraud. (Doc. 2-1 at 8–11.) 26 The Elder Abuse Act defines an “elder” as a person, residing in California, 65 years 27 28 1 of age or older. Cal. Welf. & Inst. Code § 15610.27. As relevant here, financial abuse of 2 an elder occurs when a person or entity: 3 (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud, or both. 4 (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or 5 personal property of an elder . . . for a wrongful use or with intent to defraud, 6 or both. 7 § 15610.30(a)(1)–(2). An entity engages in such conduct for “wrongful use” when it 8 “knew or should have known that this conduct is likely to be harmful to the elder or 9 dependent adult.” § 15610.30(b); see Bortz v. JPMorgan Chase Bank, N.A., Case No.: 21- 10 CV-618 TWR (DEB), 2022 WL 1489832, at *3 (S.D. Cal. May 10, 2022), aff’d sub nom. 11 Bortz v. JP Morgan Chase Bank, N.A., No. 22-55582, 2023 WL 4700640 (9th Cir. July 24, 12 2023) (“Under [§ 15610.30(b)], wrongful conduct occurs only when the defendant actually 13 knows that it is engaging in a harmful breach, or reasonably should be aware of the harmful 14 breach.”) (quoting Paslay v. State Farm Gen. Ins. Co., 248 Cal. App. 4th 639, 658 (2016)) 15 (cleaned up). 16 Under § 15610.30(a)(2), “liability may be imposed for ‘assisting’ in financial elder 17 abuse under an aiding and abetting standard.” Bortz v. JPMorgan Chase Bank, N.A., Case 18 No.: 21-CV-618 TWR (JLB), 2021 WL 4819575, at *3 (S.D. Cal. Oct. 15, 2021) (citing 19 Das v. Bank of Am., N.A., 186 Cal. App. 4th 727, 744–45 (2010)). “This requires the 20 plaintiff to plead that the defendant ‘knows the other’s conduct constitutes a breach of duty 21 and gives substantial assistance or encouragement to the other to so act.’” Id. (quoting 22 Das, 186 Cal. App. 4th at 744). “To be liable for elder abuse, there must be actual 23 knowledge, not constructive knowledge.” Alexander v. Wells Fargo Bank, N.A., Case No.: 24 23-cv-617-DMS-BLM, 2023 WL 8358550, at *4 (S.D. Cal. Dec. 1, 2023) (citing Bortz, 25 2022 WL 1489832, at *5). 26

27 3 The Parties do not dispute that Plaintiff was at least 65 years of age at the time of the 28 1 To the extent Plaintiff asserts violations of § 15610.30(a)(1), the Court finds that his 2 financial elder abuse claim is insufficiently pled. Plaintiff alleges that “Defendants 3 initiated fund transfers” (Doc. 1-2 ¶ 25) but provides no facts to support that Defendants 4 “knew or should have known that this conduct is likely to be harmful” to Plaintiff. See 5 Cal. Welf. & Inst. Code § 15610.30(b). The Complaint contains no factual allegations 6 about the transactions at issue, such as the reasons why Plaintiff believes such transactions 7 were unauthorized (see also infra Sec.III.B.1), to raise a plausible inference that 8 Defendants initiated the fund transfers for “wrongful use.” See Miller v. Bank of Am., N.A., 9 Case No. 1:21-CV-00337-JLT, 2022 WL 3704093, at *5 (E.D. Cal. Aug. 26, 2022) 10 (dismissing financial elder abuse claim for a “direct taking” under § 15610.30(a)(1) where 11 the bank “merely processed” transactions). Plaintiff therefore fails to state a financial elder 12 abuse claim based on a “direct taking” under § 15610.30(a)(1). 13 For the same reasons, Plaintiff fails to state a claim for assisting in financial elder 14 abuse under § 15610.30(a)(2). “[W]hen . . . a bank provides ordinary services that 15 effectuate financial abuse by a third party, the bank may be found to have ‘assisted’ the 16 financial abuse only if it knew of the third party’s wrongful conduct.” Das, 186 Cal. App. 17 4th at 745. Based on the Complaint, Defendants only knew about the alleged fraud when 18 Plaintiff disputed the loss of the funds. (Doc. 1-2 ¶ 11.) However, as previously noted, the 19 Complaint does not provide any facts about the allegedly fraudulent transactions. Plaintiff 20 does not suggest that a third party was involved, let alone that Defendants knew of a third 21 party’s wrongful conduct. As Plaintiff does not sufficiently plead that Defendant had 22 actual knowledge of, or provided assistance or encouragement in, the alleged fraud, he fails 23 to state a claim for assistance in financial elder abuse. See Das, 186 Cal. App. 4th at 744; 24 see, e.g., Gray v. JPMorgan Chase Bank, N.A., 661 F. Supp. 3d 991, 999 (C.D. Cal. 2023), 25 aff’d, No. 23-55318, 2024 WL 1342619 (9th Cir. Mar. 29, 2024) (dismissing financial elder 26 abuse claim where the plaintiffs did “not plead facts establishing that [the bank] had actual 27 knowledge of or intentionally assisted in carrying out the fraudulent scheme.”); Miller, 28 2022 WL 3704093, at *5 (dismissing claim for assisting an impermissible direct taking 1 under § 15610.27(a)(2) where the plaintiff had not “pled facts alleging [the bank’s] direct 2 knowledge of the scam.”). 3 Defendants’ MTD is therefore GRANTED as to the First Cause of Action. 4 B. EFTA Claim (Second Cause of Action) 5 Plaintiff claims that Defendants violated the EFTA by failing to comply with its error 6 resolution procedures in response to the allegedly unauthorized transactions made from his 7 account. (See Doc. 1-2 ¶¶ 27–29, 31.) 8 The EFTA “provide[s] a basic framework establishing the rights, liabilities, and 9 responsibilities of participants in electronic fund and remittance transfer systems.” 15 10 U.S.C. § 1693(b). Under the EFTA’s error resolution procedures, when a consumer 11 notifies a financial institution of an error, the institution must “investigate the alleged error, 12 determine whether an error has occurred, and report or mail the results of such investigation 13 and determination to the consumer within ten business days.” § 1693f(a). “The EFTA 14 mandates specific steps the financial institution must take depending on the results of its 15 investigation, as well as the time frames in which the steps must be taken.” In re Bank of 16 Am. Cal. Unemployment Benefits Litig., 674 F. Supp. 3d 884, 906 (S.D. Cal. 2023), on 17 reconsideration in part, No. 21MD2992-GPC(MSB), 2024 WL 3174380 (S.D. Cal. June 18 25, 2024) (citing 15 U.S.C. § 1693f(b)–(d)). However, “a financial institution is only 19 required to act if the consumer meets certain notice requirements.” Id.; see 15 U.S.C. 20 § 1693f(a); 12 C.F.R. § 1005.11(b). 21 Defendants argue the EFTA claim fails because Plaintiff does not sufficiently allege 22 that he provided the requisite notice to trigger Defendants’ obligations under the EFTA. 23 (Doc. 2-1 at 12–14.) Defendants also argue that Plaintiff does not provide any facts to 24 support that Defendants’ investigation was deficient and in violation of the EFTA. (Id. at 25 12, 14–16.) The Court addresses each argument in turn. 26 1. Sufficient Notice 27 Defendants argue that Plaintiff fails to assert a claim under the EFTA because he 28 “does not allege that he reported to Defendants that the transfers were fraudulent, that 1 Plaintiff described the nature of the transactions, or that Plaintiff did not participate in the 2 transfers.” (Doc. 2-1 at 13 (emphasis in original).) The Court agrees. 3 Under the EFTA, a consumer must notify a financial institution of an error “within 4 sixty days after” the institution transmits documentation reflecting such error. 15 U.S.C. 5 § 1693f(a). To trigger a financial institution’s obligations under the EFTA, a consumer’s 6 notice must identify a qualifying error. See § 1693f(f); 12 C.F.R. § 1005.11(b). As 7 relevant here, a qualifying error includes “an unauthorized electronic fund transfer” and 8 “an incorrect electronic fund transfer” from or to the consumer’s account. 15 U.S.C. 9 § 1693f(f)(1), (2); 12 C.F.R. § 1005.11(a)(1)(i), (ii). The notice must also: 10 (1) set[ ] forth or otherwise enable[ ] the financial institution to identify the name and account number of the consumer; 11

12 (2) indicate[ ] the consumer’s belief that the documentation, or, . . . , the consumer’s account, contains an error and the amount of such error; and 13

14 (3) set [ ] forth the reasons for the consumer’s belief (where applicable) that an error has occurred . . . 15 16 15 U.S.C. § 1693f(a)(1)–(3). 17 In this case, the Complaint does not contain any non-conclusory allegations about 18 Plaintiff’s notice to Defendants to establish that the EFTA’s notice requirements were met. 19 The only allegation concerning Plaintiff’s notice to Defendants merely indicates that he 20 “immediately disputed the loss of the funds with Defendants.” (Doc. 1-2 ¶ 11.) Plaintiff 21 does not state whether the dispute was written or verbal or provide any other information 22 concerning his dispute. 23 While an “unauthorized electronic transfer” constitutes a qualifying error under the 24 EFTA, see 15 U.S.C. § 1693f(f)(1), Plaintiff’s sole allegation that he disputed the “loss of 25 funds” does not support an inference that he reported an “unauthorized electronic transfer” 26 to Defendants. See § 1693a(12) (defining an “unauthorized electronic transfer” as “an 27 electronic fund transfer from a consumer’s account initiated by a person other than the 28 consumer without actual authority to initiate such transfer and from which the consumer 1 receives no benefit.”); see, e.g., In re Bank of Am. Cal. Unemployment Benefits Litig., 674 2 F. Supp. 3d at 908 (“To trigger a financial institution’s obligations under the EFTA, 3 consumers must identify a qualifying error—general allegations of fraud aren’t 4 sufficient.”); Ghalchi v. U.S. Bank, N.A., Case No. CV 14-6619 PSG (CWx), 2015 WL 5 12655402, at *8 (C.D. Cal. Jan. 8, 2015) (dismissing an EFTA claim where the plaintiff 6 “only indicate[d] that she ‘notified’ [the defendant] of ‘unauthorized withdrawals’ from 7 her Checking Account” but not “that she informed [the defendant] of the type of error that 8 triggers [its] duties under the EFTA”). 9 Plaintiff also does not identify the documentation which first reflected the allegedly 10 fraudulent transactions, see 15 U.S.C. § 1693f(a)(2), or otherwise explain how he 11 discovered such fraud. Cf. In re Bank of Am. Cal. Unemployment Benefits Litig., 674 F. 12 Supp. 3d at 909 (finding a plaintiff alleged a claim under the EFTA claim where he 13 “received a text alert following ‘fraud’”). As Plaintiff does not assert any facts about when 14 Defendants sent such documentation, he also fails to plausibly allege that he provided 15 timely notice. See 15 U.S.C. § 1693f(a) (requiring consumers to report any alleged error 16 to a financial institution “no later than 60 days after the institution sends the [written 17 documentation] on which the alleged error is first reflected”); In re Bank of Am. Cal. 18 Unemployment Benefits Litig., 674 F. Supp. 3d at 906 (“A complaint that doesn’t allege 19 that a consumer provided timely notice doesn’t state a claim under the EFTA.”). 20 Accordingly, Plaintiff fails to plausibly state that he provided Defendants with notice 21 as required to trigger their obligations under the EFTA. 22 2. EFTA Violations 23 Plaintiff alleges that Defendants violated § 1693f by failing to provisionally credit 24 his “account or make a good faith investigation into” the disputed transactions and are 25 liable for treble damages, as allowed under § 1693f(e), because they “knowingly and/or 26 willfully concluded Plaintiff was responsible for the disputed transactions.” (Doc. 1-2 27 ¶¶ 28, 31.) Plaintiff also alleges that Defendants wrongfully held him liable for the full 28 amount of such transactions ($6,815) which exceeds the EFTA’s default liability cap under 1 § 1693g. (Id. ¶ 29.) Defendants argue that the EFTA claim fails as a matter of law because 2 Plaintiff alleges no facts to support that Defendants performed a legally deficient 3 investigation in violation the EFTA. (Doc. 2-1 at 14–16.) 4 Section 1693f requires that a financial institution investigate any qualifying error 5 reported by the consumer within ten business days of receiving notice of such error. 15 6 U.S.C. § 1693f(a). Alternatively, the institution may provisionally recredit the consumer’s 7 account for the alleged error pending the conclusion of its investigation as long as the 8 investigation is concluded within 45 days of receiving notice of the alleged error. 9 § 1693f(c). Section 1693f requires that any investigation under the EFTA “include a 10 reasonable review of the financial institution’s own records.” In re Bank of Am. Cal. 11 Unemployment Benefits Litig., 674 F. Supp. 3d at 912 (quoting Green v. Cap. One, N.A., 12 557 F. Supp. 3d 441, 450 (S.D.N.Y. 2021)). This provision also allows for treble damages 13 in two limited situations. See 15 U.S.C. § 1693f(e)(1)–(2). 14 “If the financial institution determines that an error did occur, it shall promptly, 15 . . . correct the error, subject to” § 1693g. 15 U.S.C. § 1693f(b). Section 1693g(a) limits 16 a consumer’s liability for unauthorized transfers to $50. When “a bank concludes that the 17 EFTA authorizes liability in excess of the default cap, the consumer must allege facts 18 plausibly suggesting that the bank’s conclusion is wrong in order to state a claim that the 19 bank has violated § 1693g.” Widjaja v. JPMorgan Chase Bank, N.A., 21 F.4th 579, 584 20 (9th Cir. 2021) (citing 15 U.S.C. § 1693m(a)). 21 In the Complaint, Plaintiff alleges that Defendants did not reimburse him (Doc. 1-2 22 ¶ 12) but does not describe the dispute that he raised with Defendants, the results of 23 Defendants’ investigation, or any of Defendants’ responses. Plaintiff does not assert any 24 facts about the sufficiency of Defendants’ investigation or their determination as to whether 25 an error had occurred. Instead, the Complaint simply asserts a “[t]hreadbare recital[ ] of 26 the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 27 U.S. at 678. As Plaintiff’s factual allegations do not support a plausible inference that 28 Defendants’ investigation was unreasonable or performed in bad faith, Plaintiff fails to 1 state a claim for relief under § 1693f. See Chen v. Bank of Am., N.A., Case No. CV 19- 2 6941-MWF-SK, 2019 WL 9633650, at *8 (C.D. Cal. Oct. 29, 2019) (“‘Plaintiff has not 3 alleged facts establishing a plausible claim’ because ‘he does not allege details establishing 4 any bad faith on [Defendants’] part.’”) (quoting Mountcastle v. SunTrust Bank, Civil 5 Action No. MJG–12–0885, 2013 WL 588981, at *4 (D. Md. Feb. 12, 2013)) (emphasis in 6 original); Cf. In re Bank of Am. Cal. Unemployment Benefits Litig., 674 F.Supp.3d at 912 7 (denying motion to dismiss an EFTA claim where the allegations “support[ed] the 8 inference [that the bank] didn’t conduct a reasonable review, including by not reviewing 9 its own records”). 10 Plaintiff also fails to plausibly state violations of § 1693f(b) and § 1693g for the 11 same reason—he fails to plead any facts about Defendants’ determination from which the 12 Court may infer that their obligations to correct the alleged error under § 1693f(b) were 13 triggered or that their determination was wrong. See Tian v. Bank of Am., N.A., Case No. 14 2:24-cv-09877-MCS-PD, 2025 WL 1377767, at *4 (C.D. Cal. Apr. 2, 2025) (“The 15 Complaint does not clearly state whether Defendant[s] did or did not determine an error 16 occurred—and because of this deficiency, it does not clearly state a claim for relief under 17 § 1693f(b).”); Widjaja, 21 F.4th at 584 (“[T]he consumer must allege facts plausibly 18 suggesting that the bank’s conclusion is wrong in order to state a claim that the bank has 19 violated § 1693g.”).4 20 Accordingly, Defendants’ MTD is GRANTED as to Second Cause of Action. 21 C. Leave to Amend 22 Generally, “a district court should grant leave to amend even if no request to amend 23

24 25 4 Plaintiff does not indicate the timing of Defendants’ resulting investigation and similarly fails to state an entitlement to provisional credit under § 1693f(c). See 15 U.S.C. § 1693f(c) 26 (allowing an institution to “provisionally recredit the consumer’s account for the amount 27 alleged to be in error . . . pending the conclusion of its investigation” as an alternative to the requirements that the investigation be concluded within 10 days under § 1693f(a) and 28 1 || the pleading was made, unless it determines that the pleading could not possibly be cured 2 || by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 3 || F.2d 242, 247 (9th Cir. 1990) (citations omitted). When assessing whether leave to amend 4 ||is proper, courts consider “the presence or absence of undue delay, bad faith, dilatory 5 motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to 6 || the opposing party and futility of the proposed amendment.” U.S. ex rel. Lee v. SmithKline 7 || Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (cleaned up). 8 The Court finds that this case does not involve a “repeated failure to cure deficiencies 9 || by amendments previously allowed.” Foman v. Davis, 371 U.S. 178, 182 (1962). As it is 10 || not obvious that pleading additional facts would not cure the deficiencies in the Complaint, 11 ||the Court GRANTS Plaintiff leave to amend. 12 IV. CONCLUSION 13 Based on the foregoing reasons, Defendants’ MTD (Doc. 2) is GRANTED. The 14 || Complaint is therefore DISMISSED WITH LEAVE TO AMEND. Plaintiff may file an 15 |}amended complaint on or before February 9, 2026. 16 IT IS SO ORDERED. 17 DATE: January 15, 2026 Rt Barri, Moana 19 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 11