Megumi Hisamatsu v. Kaushal Niroula;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.P
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEGUMI HISAMATSU,
Plaintiff - Appellant,
v.
KAUSHAL NIROULA; et al.,
Defendants - Appellees.
No. 09-15852
D.C. No. 3:07-cv-04371-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted December 9, 2010
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Megumi Hisamatsu (“Hisamatsu”) appeals the district court’s decision
dismissing her Second Amended Complaint as to Defendant Bank of Hawaii
(“BOH”) without leave to amend and denying her motion for summary judgment.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
DEC 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1. The Indemnification Agreement (“Agreement”), which Hisamatsu signed to
confirm that she wished to withdraw her forgery claim, was not a release. By its
plain language, the Agreement did not seek to release BOH from liability. Rather,
it was a written confirmation of Hisamatsu’s verbal request to withdraw her
forgery dispute. Therefore, California Civil Code § 1668 does not apply.
Similarly, indemnification is not at issue in this action, which means the
indemnification clause of the Agreement is also not at issue. See Queen Villas
Homeowners Ass’n. v. TCB Prop. Mgmt., 56 Cal. Rptr. 3d 528, 530 (2007)
(holding that indemnification generally applies only to third party claims). Thus,
Hisamatsu’s claim that California Civil Code § 2773 prevents enforcement of the
Agreement has no merit.
2. Hisamatsu’s First Amended Complaint and Second Amended Complaint
recite primarily common law causes of action. However, this action is governed
by the Uniform Commercial Code. See Cal. Com. Code § 1103(b) cmt. 2; see also
Joffe v. United California Bank, 190 Cal. Rptr. 443, 452 (Cal. Ct. App. 1983)
(negligence action precluded by California Commercial Code § 4401, which
displaced principles of tort law). Hisamatsu’s claims for fraud, which may have
survived if they “supplement[ed]” rather than “supplant[ed]” (see § 1103(b) cmt.
2) provisions of the Commercial Code, were correctly dismissed. BOH did not

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The district court applied California law to the Uniform Commercial1
Code claims, because Hawaii had no case law interpreting its Commercial Code on
these issues. The district court also applied California law to the claims regarding
the validity of the Agreement, because it was signed in California. The choice of
law has not been challenged.
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owe a duty to affirmatively explain the legal ramifications of signing the
Agreement to Hisamatsu. In California, banks do not have a quasi-fiduciary or
fiduciary relationship with their customers. Copesky v. Superior Court, 280 Cal.1
Rptr. 338, 348 (Cal. Ct. App. 1991). Without this relationship, a mere omission
cannot constitute actionable fraud. See Cohen v. Wedbush, Noble, Cooke, Inc., 841
F.2d 282, 287 (9th Cir. 1988), overruled on other grounds by Ticknor v. Choice
Hotels Int’l, Inc., 265 F.3d 931, 941-42 (9th Cir. 2004) (“In order for a mere
omission to constitute actionable fraud, a plaintiff must first demonstrate that the
defendant had a duty to disclose the fact at issue.”).
3. The district court ruled that, under California Commercial Code § 4406,
Hisamatsu’s remaining claims against BOH were barred, because her withdrawal
of the forgery claim placed any subsequent notice of a forgery outside of the sixty
day period within which she was contractually required to contact BOH regarding
forgery claims. Hisamatsu’s opening brief to this court does not challenge the
district court’s holding or reasoning regarding section 4406. In fact, nowhere does
the opening brief discuss section 4406, which was the sole basis for the district

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The court expresses no opinion on whether the district court’s holding2
regarding California Commercial Code § 4406 is correct, as that issue is not before
us.
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court’s dismissal without leave to amend. Therefore, Hisamatsu has waived any
argument that § 4406 does not operate to preclude her claims. See Greenwood v.2
F.A.A., 28 F.3d 971, 978 (9th Cir. 1994) (matter not specifically and distinctly
argued in opening brief is waived on review).
4. Hisamatsu’s assertion that the district court deprived her of her Seventh
Amendment right to a jury trial has no merit. Cf. In re Slatkin, 525 F.3d 805, 811
(9th Cir. 2008) (“As the Supreme Court held, over one hundred years ago, a
summary judgment proceeding does not deprive the losing party of its Seventh
Amendment right to a jury trial.”).
AFFIRMED.

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