Facts

Howard Lee, a Florida resident, along with his two brothers, attempted to invest in some lots in Nicaragua--fourteen Seaside Marina lots. According to Lee, Yessica Cai, Vice President of Investment at Bank of America's Cupertino branch, suggested the investment while he was at the bank, and Cai handled the transaction. In 2006 and 2007, Lee wired Cai a total of $1.15 million to purchase the lots, which included $220,000 from his brother. In 2020, Lee alleged that Cai told him that Seaside Mariana may not have recorded the deeds for the lots. He then hired attorneys in Nicaragua and later discovered in August 2020 that he did not actually own any of the properties. Lee then filed suit against Bank of America and its affiliated entities.

PLAINTIFF’S CONTENTIONS: Plaintiff brought six claims: negligent hiring, retaining, and supervising; fraud by omission; breach of fiduciary duty; breach of the covenant of good faith and fair dealing; breach of contract; and negligent misrepresentation. Specifically, he contended that Cai acted as plaintiff’s financial advisor and suggested the investment while in her role as Bank of America’s financial advisor. As such, plaintiff thought that Bank of America had evaluated and vetted the investment.

DEFENDANTS’ CONTENTIONS: Defendants denied all contentions. They argued that statute of limitations barred plaintiff’s breach of contract and negligence and fraud claims. As to the respondeat superior claims, plaintiff’s allegation that the torts occurred at least partially while Cai was at work was insufficient to support a plausible inference that she was acting with the scope of her employment.

Result

The court granted defendants' motion to dismiss but allowed for plaintiff to file an amended complaint, which he did not do so.