Filed 9/5/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE LAW FIRM OF FOX AND 

FOX,

Plaintiff and Appellant,

v.

CHASE BANK, N.A.,

Defendant and Respondent.

 B319265

 (Los Angeles County

 Super. Ct. No. 

 20STCV14405)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Maureen Duffy-Lewis, Judge. Reversed with 

directions.

The Law Firm of Fox and Fox and Frank O. Fox for 

Plaintiff and Appellant.

Cozen O’Connor and Brett D. Watson for Defendant and 

Respondent.

_________________________

The Law Firm of Fox and Fox (Law Firm) appeals from a 

judgment entered after the trial court granted summary 
2

judgment in favor of Chase Bank, N.A. In 2020 the Law Firm 

filed this action against Chase alleging negligence in the 

disbursement of funds from a blocked account containing estate 

funds to the sole signatory on the account (as administrator of 

the estate), Jazzmen Brumfield (Brumfield). The Law Firm 

represented Brumfield as the administrator in the probate

proceedings following the death of her father. The Law Firm 

alleged Chase was negligent in disbursing the entirety of the 

estate funds to Brumfield despite a probate court order specifying

that Brumfield would receive at most $16,000 from the account, 

with most of the remaining funds to be paid to the Law Firm (and 

then to other beneficiaries as funds became available). On 

January 13, 2022 the trial court granted Chase’s motion for

summary judgment, concluding Chase owed no duty of care to the 

Law Firm and had complied with the probate court order.

On appeal, the Law Firm contends it raised triable issues 

of fact with respect to whether Chase owed a duty to the Law 

Firm, whether Chase breached any such duty, and whether 

Chase’s conduct in distributing the funds to Brumfield (who 

absconded with the funds) was the proximate cause of the Law 

Firm’s damages. We conclude Chase owed the Law Firm a duty 

of care based on the special relationship it had with the Law 

Firm as an intended beneficiary of the probate court’s order 

directing that the estate funds be deposited into a blocked 

account from which withdrawals could only be made “on court 

order” (blocked account order) and Chase’s acceptance of that 

order by executing the “receipt and acknowledgment of order for 

the deposit of money into blocked account” (acknowledgment)

(capitalization omitted). Chase certified in the acknowledgment
3

that “no withdrawal of principal or interest from this account will 

be permitted without a signed court order.” 

In finding a duty, we consider the factors first articulated

by the Supreme Court in Biakanja v. Irving (1958) 49 Cal.2d 647 

(Biakanja). Although banks do not generally have a duty to 

police customer accounts for suspicious activity, Chase owed the 

Law Firm, as an intended beneficiary of the blocked account 

order and acknowledgment, a duty to act with reasonable care in

limiting distributions from the blocked account to those 

authorized by court order. 

Chase contends it properly distributed all of the blocked 

funds pursuant to the probate court’s order approving final 

account and report of administrator in the matter of In re Estate 

of Lamont Brumfield (the final probate order), which approved 

the final account and set the amounts Brumfield and the Law 

Firm were “authorized” to receive before payment of the 

beneficiaries. However, the order did not direct Chase to pay 

specific amounts to Brumfield or the Law Firm, and therefore, 

distribution of all the funds (or any funds) in the blocked account 

to Brumfield was unauthorized absent a further court order. 

Accordingly, there were triable issues of fact whether Chase 

breached its duty and whether that breach caused the Law Firm 

harm by allowing Brumfield to withdraw all the funds in the 

account. We reverse.
4

FACTUAL AND PROCEDURAL BACKGROUND

A. The Disbursement of Funds in the Probate Case1

Brumfield hired the Law Firm2 to represent her as the 

administrator of the estate of Lamont Brumfield in the probate 

case, In re Estate of Lamont Brumfield (Super. Ct. L.A. County, 

2017, No. 17STPB05296). On June 25, 2018 the probate court 

entered the blocked account order, which confirmed the sale of 

real property belonging to the estate and directed the 

establishment of a blocked account with Chase. The order 

specified: “Net sale proceeds must be deposited by escrow holder 

in a blocked account to be withdrawn only on court order. 

Receipts must be filed.”

The blocked account order was presented to Chase on 

October 31, 2018. The same day, Chase opened a blocked account 

and deposited into the account the net proceeds from the sale in 

the amount of $63,383.47. On November 7, 2018 an attorney-infact for Chase executed the acknowledgment using Judicial 

Council Form MC-356. By signing the form, Chase (through its 

attorney-in-fact) acknowledged receipt of the blocked account 

order and certified that no withdrawal from the blocked account 

would be permitted “without a signed court order under this case 

name and number, bearing the seal of this court.” Brumfield was 

designated as the administrator and only authorized signatory on 

1 The factual background is taken from evidence submitted

by the parties in connection with Chase’s motion for summary 

judgment. We note where the facts are in dispute.

2 The Law Firm is a general partnership composed of Frank 

Fox and Claire Fox. Further unspecified references to Fox refer 

to Frank Fox.
5

the account. Brumfield signed a personal signature card that 

also identified her as the only authorized signatory on the 

account. 

On December 20, 2019 the probate court issued the final 

probate order closing administration of the estate. The order 

provided in paragraph 2 that Brumfield was “authorized and 

directed to receive statutory compensation for services rendered, 

in the sum of $16,000.00.” Paragraph 3 provided the Law Firm 

was “authorized and directed to receive: [¶] a. Statutory 

compensation for services rendered, in the sum of $16,000.00; [¶] 

b. Extraordinary compensation for legal services rendered, in the 

sum of $44,151.25; and [¶] c. Costs, in the sum of $6,173.39.” 

The order specified that “[t]he amounts detailed in paragraphs 2 

and 3, above, shall be paid from the balance of the funds 

remaining ($47,383.47) and the unpaid balance, from any 

currently unknown assets of the Decedent later discovered.”

The final probate order also provided for distribution of the 

balance of the funds remaining in the account to pay creditor’s 

claims by the California Department of Child Support Services in 

specific amounts, and if there were any remaining assets, 

distribution in equal shares to Brumfield and minors Nehemiah 

Brumfield and Chaz Brumfield. Finally, the order closed the 

administration of the estate.

Fox drafted and lodged with the probate court the final 

probate order. Only Fox appeared at the hearing for the final 

account and report of administrator.

3 

3 Neither party designated the reporter’s transcript for 

inclusion in the appellate record.
6

On January 14, 2020 Fox and Brumfield brought the final 

probate order to a Chase branch and presented it to Sergio Chun, 

a private client banker. According to Fox, he advised Chun that 

no funds could be distributed from the blocked account without 

both Fox and Brumfield being physically present. Fox further 

instructed Chun that the funds were to be paid separately to Fox 

and Brumfield directly from the account. Fox stated in his 

declaration that Chun agreed to these terms, but Chase disputed 

that Chun agreed (or had authority to agree). Chun stated in his 

declaration that he informed Fox and Brumfield that no one at 

the branch level was authorized to review court documents or 

release funds held in blocked accounts. He said he would forward 

the final probate order to the appropriate Chase department and 

offered to call Fox and Brumfield when a decision was made 

regarding the final probate order and the blocked account. 

According to a declaration from John M. Chiavacci, a Chase 

transaction specialist, Brumfield made a “series of withdrawals 

from the [b]locked [a]ccount” from January 21 to January 23, 

2020.

4 It is undisputed that Brumfield withdrew the entirety of 

the funds in the blocked account.

B. This Lawsuit, the Demurrers, and the Grant of Summary 

Judgment in Favor of Chase

On April 14, 2020 the Law Firm filed this action alleging a 

single cause of action for negligence against Chase. After Chase

filed a demurrer, the Law Firm filed a verified first amended

complaint on September 15, 2020. The first amended complaint 

4 The Chiavacci declaration refers to withdrawals in 2021, 

but it is clear from the record that this is a typographical error

and Chiavacci intended to refer to withdrawals in 2020.
7

identified Brumfield as Doe 1. Chase demurred again, and on 

January 22, 2021 the trial court overruled the demurrer and 

denied Chase’s accompanying request for judicial notice, 

reasoning Chase’s arguments “go outside the pleading.”

Chase filed its motion for summary judgment on 

October 12, 2021. Chase primarily argued, as it does on appeal,

that it owed no duty to the Law Firm. Chase asserted seven 

arguments: (1) banks have limited general duties toward their 

depositors; (2) banks have limited general duties to 

noncustomers; (3) the economic loss rule barred recovery; 

(4) Chase and the Law Firm did not have a fiduciary relationship;

(5) there was a lack of foreseeability of harm; (6) the narrow duty 

placed on banks to guard against specific types of check fraud did

not apply; and (7) Chase had only a limited duty “to keep the 

funds frozen in the [b]locked [a]ccount until the court determined 

that the funds could be released,” and it satisfied this duty by 

waiting to release the funds until the final probate order

unblocked the account.

5 Chase also asserted the Law Firm could 

not show causation because once the funds were unblocked

pursuant to the court order, Chase had no choice but to disburse 

them to Brumfield, and it was Brumfield who caused the injury. 

In its opposition the Law Firm argued Chase owed the Law 

Firm a duty based on a special relationship arising from the 

probate proceedings that required Chase to exercise due care in 

distributing funds from the blocked account. The Law Firm 

5 Chase’s arguments at times conflated duty and breach (as 

they do on appeal). To the extent Chase argued it fully complied 

with its duties under the final probate order, Chase was actually 

arguing it did not breach its duty to reasonably comply with 

orders of the court.
8

further asserted that the factors set forth in Biakanja, supra, 

49 Cal.2d 647 supported imposition of a duty. Moreover, the final 

probate order did not direct Brumfield to withdraw money to pay 

the Law Firm, but rather, directed Chase to pay the specified 

funds directly to the named recipients.

In its reply, Chase reiterated the seven theories it had 

advanced in its opening memorandum without addressing the 

Biakanja factors. Chase also submitted evidentiary objections to

two statements in the Fox declaration in support of the Law 

Firm’s opposition.6

On January 13, 2022, after hearing argument from counsel,

the trial court granted Chase’s motion for summary judgment, 

reasoning, “The demurrer was overruled because the argument 

brought in facts outside the pleading. Summary judgment allows 

those facts to be considered. It is undisputed that [Brumfield]

was the customer, not Fox, and that [the] Bank did exactly [what] 

it was told to do by the underlying order. By law, there is no 

liability on the Bank and summary judgment must be granted.”

The court did not rule on Chase’s evidentiary objections to the 

Fox Declaration.7

6 The challenged assertions were as follows: (1) “‘The order 

mandates that payment of the amounts to Plaintiff shall be made 

directly from the blocked account with Chase, not indirectly, via 

Ms. Brumfield or any other person’” and (2) “‘Mr. Chun stated 

that he understood and agreed to comply with these terms.’” 

7 Where the trial court fails to rule on evidentiary objections 

in the context of a summary judgment motion, on appeal we

presume the objections have been overruled, with the objector 

having the burden to renew its objections on appeal. (Reid v. 

Google, Inc. (2010) 50 Cal.4th 512, 534.) Chase does not
9

The Law Firm appealed from the January 13, 2022 order 

granting summary judgment. On June 24, 2022 the trial court 

entered judgment in favor of Chase.8

DISCUSSION

A. Standard of Review on Summary Judgment

Summary judgment is appropriate only if there are no 

triable issues of material fact and the moving party is entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); 

Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618 (Regents); Doe v. Roman Catholic Archbishop 

of Los Angeles (2021) 70 Cal.App.5th 657, 668.) “‘“‘“We review the 

trial court’s decision de novo, considering all the evidence set 

forth in the moving and opposing papers except that to which 

objections were made and sustained.”’ [Citation.] We liberally 

construe the evidence in support of the party opposing summary 

judgment and resolve doubts concerning the evidence in favor of 

challenge the trial court’s evidentiary rulings on appeal and has 

forfeited any challenge to the rulings. (Villanueva v. City of 

Colton (2008) 160 Cal.App.4th 1188, 1197; Roe v. McDonald’s 

Corp. (2005) 129 Cal.App.4th 1107, 1114.)

8 After we notified the Law Firm that the order granting 

summary judgment was not appealable, the Law Firm filed a 

response attaching the June 24, 2022 judgment. We consider the 

Law Firm’s premature notice of appeal a valid “notice of appeal 

filed after judgment is rendered but before it is entered” and treat 

the notice as filed immediately after entry of judgment. (Cal. 

Rules of Court, rule 8.104(d)(1); see Silva v. Langford (2022) 

79 Cal.App.5th 710, 715, fn. 6; Valdez v. Seidner-Miller, Inc.

(2019) 33 Cal.App.5th 600, 607.)
10

that party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th 

340, 347; accord, Doe, at p. 669.)

A defendant moving for summary judgment has the initial 

burden of presenting evidence that a cause of action lacks merit 

because the plaintiff cannot establish an element of the cause of 

action or there is a complete defense. (Code Civ. Proc., § 437c, 

subd. (p)(2); Regents, supra, 4 Cal.5th at p. 618; Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If the 

defendant satisfies this initial burden, the burden shifts to the 

plaintiff to present evidence demonstrating there is a triable 

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); 

Aguilar, at p. 850.) “The plaintiff . . . shall not rely upon the 

allegations or denials of its pleadings to show . . . a triable issue 

of material fact exists but, instead, shall set forth the specific 

facts showing that a triable issue of material fact exists.” (Code 

Civ. Proc., § 437c, subd. (p)(2); accord, Roman v. BRE Properties, 

Inc. (2015) 237 Cal.App.4th 1040, 1054 [“It is fundamental that to 

defeat summary judgment a plaintiff must show ‘specific facts’ 

and cannot rely on allegations of the complaint.”].)

B. Chase Owed a Duty of Care to the Law Firm as an Intended 

Beneficiary 

The four elements of a negligence claim are well 

established: (1) duty; (2) breach; (3) proximate causation; and 

(4) injury. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 

(Brown) [“To establish a cause of action for negligence, the 

plaintiff must show that the ‘defendant had a duty to use due 

care, that he breached that duty, and that the breach was the 

proximate or legal cause of the resulting injury.’”]; Kesner v. 

Superior Court (2016) 1 Cal.5th 1132, 1158; Nally v. Grace 
11

Community Church (1988) 47 Cal.3d 278, 292.) In moving for 

summary judgment, Chase argued the Law Firm could not

establish three of the elements: duty, breach, and causation. We 

agree with the Law Firm that Chase owed the Law Firm a duty 

of care, and the Law Firm has created a triable issue of fact as to 

breach and causation. 

1. Duty of care owed to third parties

“Whether a duty exists is a question of law to be resolved 

by the court.” (Brown, supra, 11 Cal.5th at p. 213; accord, 

Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398 

(Gas Leak Cases).) The general rule governing duty of care is set 

forth in Civil Code section 1714. (Brown, at p. 213.) Civil Code 

section 1714, subdivision (a), provides, “Everyone is responsible, 

not only for the result of his or her willful acts, but also for an 

injury occasioned to another by his or her want of ordinary care 

or skill in the management of his or her property or person . . . .” 

Under this provision, “[i]n general, each person has a duty to act 

with reasonable care under the circumstances.” (Regents, supra,

4 Cal.5th at p. 619; accord, Gas Leak Cases, at p. 398 [“In 

California, the ‘general rule’ is that people owe a duty of care to 

avoid causing harm to others and that they are thus usually 

liable for injuries their negligence inflicts.”].)

However, “[d]uty is not universal; not every defendant owes 

every plaintiff a duty of care. A duty exists only if ‘“the plaintiff’s 

interests are entitled to legal protection against the defendant’s 

conduct.”’” (Brown, supra, 11 Cal.5th at p. 213; accord, Sheen v. 

Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 920 (Sheen).) For 

example, “[t]he law does not impose the same duty on a 
12

defendant who did not contribute to the risk that the plaintiff 

would suffer the harm alleged.” (Brown, at p. 214.) 

A significant exception to the general duty of care under 

Civil Code section 1714 applies where the defendant causes only 

economic loss, commonly called the “economic loss rule.” (Sheen, 

supra, 12 Cal.5th at p. 922 [“The [economic loss rule] is 

deceptively easy to state: In general, there is no recovery in tort 

for negligently inflicted ‘purely economic losses,’ meaning 

financial harm unaccompanied by physical or property damage.”]; 

Gas Leak Cases, supra, 7 Cal.5th at p. 406 [liability in negligence 

for “purely economic losses” is “the exception, not the rule”].) 

This case presents such a situation—the Law Firm alleges 

it suffered solely an economic loss as a result of Chase’s 

negligence in releasing all the funds in the blocked account to 

Brumfield. Although the economic loss rule is therefore 

implicated, there is an exception to the rule’s limitation on 

liability where the plaintiff and defendant have a special 

relationship and policy considerations support finding a duty. 

(Gas Leak Cases, supra, 7 Cal.5th at p. 400; J’Aire Corp. v. 

Gregory (1979) 24 Cal.3d 799, 804 (J’Aire).) As the Supreme 

Court explained in Gas Leak Cases, “The primary exception to 

the general rule of no recovery for negligently inflicted purely 

economic losses is where the plaintiff and the defendant have a 

‘special relationship.’ [Citation.] What we mean by special 

relationship is that the plaintiff was an intended beneficiary of a 

particular transaction but was harmed by the defendant’s 

negligence in carrying it out.” (Gas Leak Cases, at p. 400.)

This case falls squarely within the rubric of a special 

relationship as first articulated by the Supreme Court in 

Biakanja, supra, 49 Cal.2d 647. There, the Supreme Court held a 
13

notary public who negligently drafted a will for the decedent 

owed a duty of care to an estate beneficiary who was not in 

contractual privity with the notary public but was the intended 

beneficiary of the transaction. (Id. at pp. 650-651.) As the 

Supreme Court later explained, “A special relationship existed 

between the intended beneficiary and the notary in Biakanja . . . 

because ‘the “end and aim” of the transaction’ between the 

nonparty decedent and the notary was to ensure that the 

decedent’s estate passed to the intended beneficiary.” (Gas Leak 

Cases, supra, 7 Cal.5th at p. 400, quoting Biakanja, at p. 650; see 

J’Aire, supra, 24 Cal.3d at pp. 802, 804-805 [third-party lessee 

who operated a restaurant sufficiently alleged a cause of action 

for negligence based on construction delays against a contractor 

hired by the owner of the building to renovate the restaurant 

based on the special relationship between the contractor and 

lessee]; cf. Brown, supra, 11 Cal.5th at p. 215 [“In a case 

involving harm caused by a third party, a person may have an 

affirmative duty to protect the victim of another’s harm if that 

person is in what the law calls a ‘special relationship’ with either 

the victim or the person who created the harm.”].)9 Here too, the 

9 The “special relationship” doctrine addressed in Brown, 

supra, 11 Cal.5th at pages 216 to 222 and Regents, supra,

4 Cal.5th at pages 619 to 627 with respect to a defendant’s 

affirmative duty to protect a plaintiff from foreseeable 

noneconomic injury caused by a third party is different from the 

“special relationship” at issue in Biakanja and J’Aire arising from 

a transaction in which the third party is an intended beneficiary 

who suffered only economic loss as a result of the transaction. 

(See Brown, at p. 222 [defendant taekwondo association had 

special relationship with athletes who were sexually abused by 
14

intent of the creation of the blocked account was to ensure the 

estate funds would be available to the intended beneficiaries, 

which included the Law Firm.

The Supreme Court in Biakanja, supra, 49 Cal.2d at 

page 650 explained “[t]he determination whether in a specific 

case the defendant will be held liable to a third person not in 

privity is a matter of policy and involves the balancing of various 

factors . . . .” The court considered six factors typically described 

as the Biakanja factors: (1) the extent to which the transaction 

was intended to affect the plaintiff; (2) the foreseeability of harm 

to the plaintiff; (3) the degree of certainty that the plaintiff 

suffered injury; (4) the closeness of the connection between the 

defendant’s conduct and the injury suffered; (5) the moral blame 

attached to the defendant’s conduct; and (6) the policy of 

preventing future harm. (Ibid.; see Gas Leak Cases, supra, 

7 Cal.5th at p. 401 [“Discerning whether there is a special 

relationship justifying liability [for purely economic loss by a 

third party] can nonetheless be a subtle enterprise” involving 

balancing of the Biakanja factors]; J’Aire, supra, 24 Cal.3d at 

p. 804 [applying Biakanja factors to find duty of care owed to 

third party lessee]; Beacon Residential Community Assn. v. 

Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 578 

their coach, who was a member of the association]; Regents, at 

p. 613 [universities have special relationship with their students 

“and a duty to protect them from foreseeable violence during 

curricular activities”].) However, “[r]elationships that have been 

recognized as ‘special’ share a few common features. Generally, 

the relationship has an aspect of dependency in which one party 

relies to some degree on the other for protection.” (Regents, at 

p. 620; see generally id. at pp. 620-621.) 
15

[“Biakanja set forth a list of factors that inform whether a duty of 

care exists between a plaintiff and defendant in the absence of 

privity.”].)10 

The Supreme Court in J’Aire, supra, 24 Cal.3d at page 806 

emphasized that a “key component” in this analysis is the 

foreseeability of the harm. However, as the Supreme Court 

10 The Supreme Court in Gas Leak Cases, supra, 7 Cal.5th at 

page 401 explained the Biakanja balancing test applies a subset 

of the factors used in Rowland v. Christian (1968) 69 Cal.2d 108, 

112 to 113 for consideration of whether a defendant owes a duty 

of care to a plaintiff not in privity with the defendant. (See 

Sheen, supra, 12 Cal.5th at p. 937 [the multifactor test set forth 

in Rowland is “largely similar” to the Biakanja factors].) 

Although the Rowland and Biakanja factors largely overlap, they 

are applied in different factual scenarios and in a distinct 

manner. The Biakanja factors “are used to determine whether 

persons must exercise reasonable care to avoid negligently 

causing economic loss to others with whom they were not in 

privity (sometimes referred to as third parties).” (Sheen, supra,

12 Cal.5th at pp. 937-938.) The “Rowland factors serve to 

determine whether an exception to [Civil Code] section 1714’s 

general duty of reasonable care is warranted.’” (Sheen, at p. 938, 

quoting Brown, supra, 11 Cal.5th at pp. 217-218.) In other 

words, the Biakanja factors apply in this type of case, in which

the defendant has a special relationship with an intended 

beneficiary of a transaction who suffers only economic loss, to

determine whether based on policy considerations there is a duty 

“justifying liability” (Gas Leak Cases, at pp. 400-401, italics 

added), whereas the Rowland factors apply where there is a 

special relationship between the parties that supports finding the 

defendant had a duty to protect the plaintiff from noneconomic 

loss, to determine “whether policy considerations justify limiting

any resulting duty.” (Brown, supra, 11 Cal.5th at p. 221, italics 

added.)
16

explained in Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 398 

(Bily), even where the economic loss is foreseeable, the court has 

considered factors in addition to those in Biakanja in declining to 

impose a duty of care, for example, where “damage awards 

threatened to impose liability out of proportion to fault or to 

promote virtually unlimited responsibility for intangible injury.” 

Rather, “[d]eciding whether to impose a duty of care turns on a 

careful consideration of the ‘“‘“the sum total”’”’ of the policy 

considerations at play, not a mere tallying of some finite, onesize-fits-all set of factors.” (Gas Leak Cases, supra, 7 Cal.5th at 

p. 401; see Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 841 

[declining to impose on third-party payroll company a duty of 

care to employee of hiring business after “[c]onsidering the ‘“sum 

total”’ of the relevant considerations of policy”]; Lucas v. Hamm

(1961) 56 Cal.2d 583, 589 [“Since defendant was authorized to 

practice the profession of an attorney, we must consider an 

additional factor not present in Biakanja, namely, whether the 

recognition of liability to beneficiaries of wills negligently drawn 

by attorneys would impose an undue burden on the profession.”].) 

In Bily, the Supreme Court held a company’s auditor owed 

no general duty of care to investors regarding the preparation of 

a public report on the financial well-being of the company where 

the investors had suffered financial losses as a result of 

statements in the report. (Bily, supra, 3 Cal.4th at p. 376.) The 

Bily court concluded it was “certainly” foreseeable the investors 

would suffer losses from the negligently prepared audit reports, 

but an auditor “owes no general duty of care regarding the 

conduct of an audit to persons other than the client.” (Bily, at 

pp. 376; see Gas Leak Cases, supra, 7 Cal.5th at p. 401.) The Bily

court observed, similar to the context of bystander liability for 
17

negligent infliction of emotional distress, “‘[T]here are clear 

judicial days on which a court can foresee forever and thus 

determine liability but none on which that foresight alone 

provides a socially and judicially acceptable limit on recovery of 

damages for [an] injury.’” (Bily, at p. 399, quoting Thing v. La 

Chusa (1989) 48 Cal.3d 644, 668; see Gas Leak Cases, at p. 401.) 

The court held auditors’ potential multi-billion-dollar liability for 

financial losses suffered by third parties who rely on public audit 

reports was out of proportion to fault and raised other policy 

concerns. (Bily, at pp. 401-402; see Goonewardene v. ADP, LLC,

supra, 6 Cal.5th at p. 838; Gas Leak Cases, at pp. 401-402.)

Although Chase highlights this language in Bily that 

foreseeability cannot alone support a duty owed to third parties, 

Chase ignores Bily’s finding the auditor did owe a duty of care on 

a negligent misrepresentation theory to the “specifically intended 

beneficiaries of the audit report who are known to the auditor 

and for whose benefit it renders the audit report.” (Bily, supra, 

3 Cal.4th at pp. 406-407.) As the Supreme Court observed in Gas 

Leak Cases, supra, 7 Cal.5th at pages 401 to 402, the Bily court 

“limited auditor liability to claims for negligent 

misrepresentation brought by plaintiffs who—like the plaintiffs 

in Biakanja and J’Aire—were ‘specifically intended beneficiaries’ 

of the defendant’s conduct.” 

Here, as in Biakanja and J’Aire, Chase and the Law Firm 

had a special relationship because the Law Firm was an intended 

beneficiary of the blocked account order and acknowledgment, 

which limited distribution of estate funds.

11 The Law Firm was 

11 Although the Law Firm is technically a creditor of the 

estate (see, e.g., Prob. Code, § 11420(a)(1) [listing expenses of 
18

authorized by statute to be paid for its legal fees from the estate

(Prob. Code, § 10810, subd. (a)),

12 and further, the Probate Court 

order authorized payment of approximately $66,000 to the Law 

Firm for this purpose in the final probate order. When Chase 

opened the blocked account on October 31, 2018, it did so 

pursuant to the probate court’s blocked account order that 

specified the funds from the proceeds of the sale of the estate’s 

real property must be deposited “in a blocked account to be 

withdrawn only on court order.” And in moving for summary 

judgment, Chase acknowledged it “owe[d] a duty and obligation 

to comply with court orders” (although it disputed whether that 

duty was owed to the Law Firm). We therefore apply the 

Biakanja factors to determine whether Chase owed a duty of care 

to the Law Firm in making distributions from the blocked 

account. 

2. The Biakanja factors support a finding Chase owed a 

duty to the Law Firm in distributing funds from the 

blocked account

The Law Firm contends the Biakanja factors favor a 

finding Chase owed it a duty of care. Chase does not address the

Biakanja factors in its respondent’s brief other than 

foreseeability, instead focusing on the limited duty of care owed 

administration as the highest priority debt of the estate]), for 

simplicity we describe it as a beneficiary because its claim to a 

portion of the blocked funds is similar to that of the named 

beneficiaries. 

12 Further undesignated statutory references are to the 

Probate Code.
19

by banks to non-depositors.

13 The Law Firm is correct. The 

Biakanja factors support a finding Chase had a duty to use 

reasonable care in distributing funds from the blocked account.

a. The transaction was intended to affect the 

Law Firm

As discussed, the first Biakanja factor is “the extent to 

which the transaction was intended to affect the plaintiff.” 

(Biakanja, supra, 49 Cal.2d at p. 650.) Chase does not dispute 

that it agreed to comply with the probate court’s orders in 

distributing funds from the blocked account. Pursuant to the 

statutory scheme, the attorney for the personal representative in 

a probate matter “shall” receive compensation from the estate for 

“ordinary services” provided by the attorney pursuant to 

statutory guidelines based on the value of the estate. (§ 10810, 

subd. (a); see Estate of Trynin (1989) 49 Cal.3d 868, 873 [“An 

13 Chase argues in its respondent’s brief that there are seven 

theories under which it is not liable for injury caused to the Law 

Firm, two of which we discuss in this section (the economic loss 

rule and foreseeability of harm). We address below Chase’s 

arguments that it did not owe a duty to the Law Firm because, as 

a bank, it did not owe a duty to depositors or non-depositors to 

police activity in a depositor’s account for suspicious activity. We 

do not reach Chase’s argument that it did not owe a fiduciary 

duty to the Law Firm, because the Law Firm only asserts that it 

had a special relationship with Chase, not that it had a fiduciary 

relationship. Likewise, because we conclude Chase’s duty to the 

Law Firm arose from the plain language of the blocked account 

order and Acknowledgment, we do not reach whether any 

statements by Chun supported a duty owed by Chase to the Law 

Firm.
20

attorney who has rendered services to an estate’s representative 

may obtain compensation by petitioning the superior court sitting 

in probate for an order requiring the representative to make 

payment to the attorney out of the estate.”].)14 Under this 

statutory scheme, “an attorney who has performed probate work 

is a person interested in the estate.” (Trynin, at p. 873.) 

Consistent with sections 10810 and 10811, the final probate order

specified the Law Firm was “directed to receive” $16,000 in 

“[s]tatutory compensation for services rendered,” approximately 

$44,000 for “[e]xtraordinary compensation for legal services 

rendered,” and approximately $6,000 in costs. 

Moreover, under the Probate Code, expenses of 

administration (including attorneys’ fees) have priority over all 

other debts of the estate. (§ 11420, subd. (a)(1) [“expenses of 

administration incurred that are reasonably related to the 

administration of that property by which obligations are secured 

shall be given priority” over secured debts].) Accordingly, the 

blocked account order and acknowledgment, by preventing 

disbursement of the estate funds in the blocked account without a 

court order authorizing payment, were intended to affect the Law 

Firm, which had a priority right to those funds. This factor

therefore weighs strongly in favor of finding a duty of care. 

14 Compensation for ordinary legal services is commonly 

known as “‘statutory’” or “‘ordinary’” compensation. (Estate of 

Hilton (1996) 44 Cal.App.4th 890, 894-895; see Estate of Wong

(2012) 207 Cal.App.4th 366, 374-375.) Compensation for services 

that are not involved in the typical probate case, commonly 

known as “extraordinary services,” “may” be paid out of estate 

assets at the discretion of the probate court in an amount the 

court determines is “just and reasonable.” (§ 10811, subd. (a); see 

Wong, at 375; Hilton, at p. 895.) 
21

b. The foreseeability and certainty factors

Because the establishment of the blocked account was 

intended to benefit the Law Firm, the second Biakanja factor 

(foreseeability of harm) also weighs heavily in favor of finding a 

duty of care. (Biakanja, supra, 49 Cal.2d at 650; see J’Aire,

supra, 24 Cal.3d at p. 804 [because contract between owner and 

contractor was for renovation of restaurant operated by plaintiff, 

“it was clearly foreseeable that any significant delay in 

completing the construction would adversely affect [plaintiff’s] 

business”]; Sabetian v. Exxon Mobil Corporation (2020) 57 

Cal.App.5th 1054, 1078 [“Typically, as in J’Aire and Stewart [v. 

Cox (1961) 55 Cal.2d 857], the first two . . . factors operate in 

tandem—because the underlying contract was intended to affect 

the plaintiffs, the harm to the plaintiffs as a result of the 

defendants’ negligence was a fortiori foreseeable.”].) It was 

foreseeable that distributing the entirety of the funds in the 

blocked account to one beneficiary, without a court order 

directing disbursement of the funds, would harm the other 

beneficiaries, including the Law Firm. 

With respect to the third Biakanja factor (the degree of 

certainty that the plaintiff suffered injury), it is undisputed the 

Law Firm suffered injury as a result of Chase’s allowing

Brumfield to withdraw all the funds in the blocked account

without a court order directing it to do so, depriving the Law 

Firm of any payment. There is likewise a close connection 

between Chase’s conduct in distributing all the funds to 

Brumfield and the Law Firm’s injury (the fourth factor). 

(Biakanja, supra, 49 Cal.2d at 650; see Chang v. Lederman

(2009) 172 Cal.App.4th 67, 83 [“[F]rom the allegations in [the 

plaintiff’s] complaint there appear to be no intervening 
22

circumstances that might have broken the causal connection 

between [the defendant’s] conduct and [the plaintiff’s] damage 

(the fourth factor).”].)15

c. We do not attach moral blame to Chase’s 

conduct

We recognize Chase relied on a mistaken interpretation of 

the final probate order in releasing all of the estate funds to 

Brumfield; there is no evidence the distribution in any way 

benefitted Chase. And but for Brumfield’s conduct in absconding 

with the funds, there would have been no injury. Thus, we do not 

attach moral blame to the negligent conduct of Chase. This 

factor therefore favors Chase. 

d. The policy of preventing future harm supports 

finding a duty

The goal to prevent future harm supports finding a bank 

owes a duty of care to an intended beneficiary where a bank 

releases funds from a blocked account without court 

authorization. Chase agreed to comply with the probate court 

order directing that the estate funds be placed in a blocked 

account, withdrawable only pursuant to court order, and it

allowed the estate funds to be withdrawn without a proper order. 

The probate system reflects a fundamental recognition that the 

preservation and distribution of the assets of the deceased for 

beneficiaries require special care and court supervision. And 

third party beneficiaries are typically powerless to safeguard 

their own interests. For example, a beneficiary would not know, 

15 We address Chase’s causation arguments further below.
23

as here, that funds have been distributed from the estate to a 

person lacking a right to the funds until it is too late. 

The procedure in the Probate Code for creating and 

limiting disbursements from blocked accounts addresses this 

problem. Pursuant to section 9703, subdivision (a), “Upon 

application of the personal representative, the court may, with or 

without notice, order that money or other personal property be 

deposited [in an account] and be subject to withdrawal only upon 

authorization of the court.” (See § 8483 [providing that amount 

of bond may be reduced where deposited funds may only be 

withdrawn upon court order pursuant to section 9703].) This 

longstanding requirement was first enacted in 1909 in section 91 

of the Bank Act (Stats. 1909, ch. 76, § 91, p. 105), which 

provided, “Any court, having appointed and having jurisdiction of 

any executor, administrator, guardian, assignee, receiver, 

depositary, or trustee, upon the application of such officer or 

trustee, or upon the application of any person having an interest 

in the estate . . . may authorize such officer or trustee to deposit 

any moneys then in his hands, or which may come into his hands 

thereafter, and until the further order of said court, with any 

such trust company . . . . Such deposits shall be paid out only 

upon the orders of said court.” (Stats. 1909, ch. 76, § 91, p. 105, 

italics added; see Stats. 1909, ch. 76, § 93, p. 106 [authorizing 

reduction in bond after deposit with trust company]; see also 

Stats. 1909, ch. 76, § 51, p. 98 [authorizing deposit in bank 

instead of trust company].) Holding banks accountable to 

intended beneficiaries for the negligent disbursement of funds 

from blocked accounts will create an incentive for banks to take 

steps to ensure estate funds placed in a blocked account are not 

distributed without clear court authorization, furthering the goal 
24

of protecting beneficiaries, who could not otherwise safeguard

their interests. 

3. The cases limiting a bank’s duty to police customer 

accounts do not foreclose a finding of duty 

Chase contends that imposing a duty on a bank to protect a 

non-depositor from the potential fraud of an authorized signatory 

would be contrary to California law that, with limited exceptions, 

neither imposes a duty on banks to police the account activity of 

its depositors nor imposes a duty of care owed to non-depositors. 

Although Chase is correct that banks generally do not have a 

duty to monitor accounts for suspicious activity, the duty Chase 

owes to the Law Firm does not arise from a duty to ferret out 

suspicious activity, but rather, from its receipt of estate funds 

and placement of the funds in a blocked account, and its special 

relationship with intended beneficiaries of those funds. The duty 

to act with reasonable care in limiting distributions from a 

blocked account to those authorized by court order, to protect the 

interests of intended beneficiaries of the funds, falls squarely 

within the obligations placed on a bank consistent with the policy 

considerations set forth in Biakanja. Further, most courts that 

have analyzed a bank’s limited duty of care to monitor accounts 

have, as we do here, considered the policy factors set forth in 

Biakanja (or Rowland v. Christian (1968) 69 Cal.2d 108, 112-113

(Rowland)) in determining the breadth of that duty. 

Banks owe a long-recognized duty of care to their 

depositors. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 

801, 808 (Bullis) [a bank has “a duty to act with reasonable care 

in its transactions with its depositors”]; Basch v. Bank of America 

(1943) 22 Cal.2d 316, 321 [“a bank pays a forged check at its 
25

peril”]; Pacific Finance Corp. v. Bank of Yolo (1932) 215 Cal. 357, 

361 [banks have a duty to ensure funds are not “improperly 

disbursed”]; Chazen v. Centennial Bank (1998) 61 Cal.App.4th 

532, 543 (Chazen).)

In Bullis, supra, 21 Cal.3d at pages 805 to 806, the 

Supreme Court considered a bank’s failure to follow its internal 

protocols and the Probate Code by allowing one of two coexecutors to withdraw funds from an estate’s account.16 In 

affirming the judgment in favor of the estate, the court concluded 

the bank “clearly had a duty to act with reasonable care in its 

transactions with its depositors, including the . . . estate.” (Id. at 

p. 808.) Regarding breach, the court found there was 

“substantial evidence to support the trial court’s finding that [the 

bank’s] failure to require the signatures of both co-executors on 

withdrawals fell below the standard of care owed to the estate.” 

(Id. at p. 811.) 

Although banks have a duty to act with reasonable care 

toward their depositors, including to ensure a person making a 

withdrawal has authority to do so, Financial Code section 1451

addresses the longstanding principle first codified in the 1925 

Bank Act (Stats. 1925, ch. 312, (Assem. Bill No. 725 (46th Sess.) 

§ 16a) that banks have no duty to monitor withdrawals made by 

authorized parties in an authorized manner. (See Kurtz-Ahlers,

LLC v. Bank of America, N.A. (2020) 48 Cal.App.5th 952, 956 [the 

contractual relationship between a bank and a depositor “‘does 

16 The Bullis court considered former section 570 (now 

codified in section 9630), which provided that “one of two coexecutors may act alone [o]nly if the other co-executor is absent 

from the state or legally disqualified from acting.” (Bullis, supra, 

21 Cal.3d at p. 810.) 
26

not involve any implied duty “to supervise account activity”

[citation] or “to inquire into the purpose for which the funds are 

being used”’”]; Chazen, supra, 61 Cal.App.4th at 537 [“a bank has 

no duty to monitor trust accounts for breaches of fiduciary 

duty”].) 

Financial Code section 1451 provides, “When the depositor 

of a commercial or savings account has authorized any person to 

make withdrawals from the account, the bank, in the absence of 

written notice otherwise, may assume that any check, receipt, or 

order of withdrawal drawn by such person in the authorized form 

or manner, including checks drawn to his personal order and 

withdrawal orders payable to him personally, was drawn for a 

purpose authorized by the depositor and within the scope of the 

authority conferred upon such person.” (Italics added.) 

Section 1451’s limitation on the bank’s duty to supervise 

withdrawals is designed to protect depositor privacy and to 

facilitate efficient processing of banking transactions. (KurtzAhlers, supra, 48 Cal.App.5th at pp. 957, 960-961; Chazen, supra, 

61 Cal.App.4th at p. 539.) 

The Supreme Court in Sun ‘n Sand, Inc. v. United 

California Bank (1978) 21 Cal.3d 671, 695 (Sun ‘n Sand) carved 

out a narrow duty of inquiry for banks to make reasonable 

inquiries when “checks, not insignificant in amount, are drawn 

payable to the order of a bank and are presented to the payee 

bank by a third party seeking to negotiate the checks for his own 

benefit.” The court concluded that under the alleged facts the 

bank breached its duty to a third-party company where the bank 

allowed the company’s employee to deposit in her own account 

checks made out to the bank (not to the employee), which were 

intended to pay the company’s bills. (Id. at pp. 678-679.) In 
27

concluding the bank owed the company a duty to protect it from 

the suspicious conduct of its employee, the court considered the 

Rowland factors and found that because the loss was reasonably 

foreseeable, the bank owed a limited duty of care to the company. 

(Id. at p. 695.) 

Aside from the narrow Sun ‘n Sand exception, courts have 

refrained from imposing on banks a duty to third parties to 

monitor bank account transactions for suspicious activity. (See

Kurtz-Ahlers, supra, 48 Cal.App.5th at pp. 958-959, 961 [bank 

owed no duty to company where company’s bookkeeper 

fraudulently deposited company checks into her own account 

because bookkeeper appeared authorized to deposit checks and 

policy considerations strongly weighed against finding a new 

duty to monitor transfers from one depositor (the company) to 

another]; Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 

1138, 1151 [banks did not owe duty of care to third-party 

bankruptcy estate where officers of debtor corporation allegedly 

opened suspicious bank accounts to perpetrate fraud because “the 

banks’ alleged knowledge of the [officers’] suspicious account 

activities—even money laundering—without more, does not give 

rise to tort liability for the banks”]; Karen Kane, Inc. v. Bank of 

America (1998) 67 Cal.App.4th 1192, 1202 [finding after 

considering Rowland factors that bank had no duty to company 

whose checks were fraudulently cashed by its employee where 

company had “no relationship with the Bank, and the Bank did 

nothing more than allow its customer . . . to deposit checks into 

its own account”]; Chazen, supra, 61 Cal.App.4th at pp. 545-546 

[bank did not owe duty of care to third parties who were not 

known to bank based on broker’s improper disbursements from 
28

trust accounts where the broker was authorized to make the 

disbursements].)

Unlike these cases, in which the courts have confirmed 

there is no (or a very limited) duty to third parties based on a 

bank’s duty to monitor depositor accounts where transactions are 

on their face authorized, in this case Brumfield made an 

unauthorized withdrawal of funds from the blocked account 

because the final probate order did not specifically direct Chase 

to distribute funds from the blocked account to Brumfield (or 

anyone else). Absent a court order with instructions on the 

amounts to pay Brumfield and the Law Firm, it was unclear how 

much money should have been distributed to each because the 

total amount allocated to Brumfield and the Law Firm exceeded 

the amount of estate funds in the blocked account.17 It was for 

the court to decide how to allocate the available funds between 

Brumfield and the Law Firm, and then for the court to issue an 

order directing Chase on how to distribute the funds from the 

blocked account. The final probate order did not do this. 

17 Pursuant to section 11420, subdivision (b), subject to 

exceptions not applicable here, “the debts of each class are 

without preference or priority one over another. No debt of any 

class may be paid until all those of prior classes are paid in full. 

If property in the estate is insufficient to pay all debts of any 

class in full, each debt in that class shall be paid a proportionate 

share.” Because payment of $16,000 to Brumfield plus the 

$66,325.14 owed to the Law Firm ($16,000 for ordinary services, 

$44,151.25 for extraordinary services, and $6,173.89 in costs) 

were in the same debt class (costs of administration), they should 

have each received a proportionate share of the $47,383.47 in the 

blocked account. 
29

C. The Law Firm Created a Triable Issue of Fact as to Whether 

Chase Used Reasonable Care in Implementing the Blocked 

Account Order

Chase contends it did not breach any duty it owed to the 

Law Firm in distributing estate funds pursuant to the final 

probate order because it followed the order in releasing the funds 

in the blocked account to Brumfield as the only authorized 

signatory on the account. We agree with the Law Firm that the 

language of the final probate order (in the absence of extrinsic 

evidence) supports a contrary conclusion.

The interpretation of a court order is a question of law we 

review de novo. (Dow v. Lassen Irrigation Co. (2022) 

79 Cal.App.5th 308, 326; American Civil Rights Foundation v. 

Los Angeles Unified School Dist. (2008) 169 Cal.App.4th 436, 

448.) “The same rules apply in ascertaining the meaning of a 

court order or judgment as in ascertaining the meaning of any 

other writing.” (Mendly v. County of Los Angeles (1994) 

23 Cal.App.4th 1193, 1205; accord, Dow, at p. 326; In re Ins. 

Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1429 [“‘In 

construing orders they must always be considered in their 

entirety, and the same rules of interpretation will apply in 

ascertaining the meaning of a court’s order as in ascertaining the 

meaning of any other writing.’”]; see Wolf v. Walt Disney Pictures 

& Television (2008) 162 Cal.App.4th 1107, 1125-1126 [“The rules 

governing the role of the court in interpreting a written 

instrument are well established. . . . Ordinarily, the objective 

intent of the contracting parties is a legal question determined 

solely by reference to the contract’s terms.”].)

Contrary to Chase’s contention, the final probate order does 

not direct Chase to unblock the account for release of all the 
30

funds to Brumfield, who would (according to Chase) then be 

responsible for distribution of the funds to the other beneficiaries, 

including the Law Firm. While possibly Brumfield’s signature 

would have been necessary to effectuate the release of funds to 

the Law Firm and other beneficiaries, that does not mean she 

could withdraw any funds from the blocked account without a 

court order directing Chase to release the funds to Brumfield. 

Further, section 9704 provides that the bank, upon receipt of an 

order for distribution of money or personal property from an 

account, “may deliver the property directly to the distributees.”

And to the extent there was a lack of clarity in how the funds 

should have been distributed, Chase should have sought 

guidance from the court or required the Law Firm to obtain a 

more specific order. 

A comparison between the final probate order and Judicial 

Counsel Form MC-358 (order authorizing withdrawal of funds 

from blocked account)

18 highlights the flaws in Chase’s position

that the final probate order authorized distribution of the estate 

funds to Brumfield without a further order. Judicial Council 

Form MC-358 provides with respect to a blocked account that the 

“Petitioner is authorized to withdraw, and the depository is 

ordered, on presentation of a file-stamped copy of this order, to 

permit the petitioner to withdraw” the listed amount. The order

specifies each payee and the amount to be distributed to the 

payee. By contrast, the final probate order approves the amount 

Brumfield, the Law Firm, and the beneficiaries are “authorized 

18 The Judicial Council website provides that form MC-358

“[s]tates the court’s decision (order) allowing funds to be taken 

out (withdrawn) from a blocked account (a bank or other account 

requiring a court order to deposit or withdraw funds).” 
31

and directed to receive,” but nowhere does the order authorize 

Brumfield to withdraw, or Chase to pay, specific amounts to each 

payee. Although parties do not need to use the Judicial Council 

template, adherence to it (with specific directions to the bank) 

ensures the distributions are authorized by court order. 

Accordingly, the Law Firm created a triable issue of fact as 

to Chase’s breach of its duty of care owed to the Law Firm. 

D. The Law Firm Raised a Triable Issue of Fact as to 

Causation

“The element of causation requires there to be a connection 

between the defendant’s breach and the plaintiff’s injury.” (Coyle 

v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 645.) 

“Causation exists where ‘the defendant’s breach of its duty to 

exercise ordinary care was a substantial factor in bringing about 

plaintiff’s harm.’” (Janice H. v. 696 North Robertson, LLC (2016) 

1 Cal.App.5th 586, 598; accord, Beebe v. Wonderful Pistachios & 

Almonds LLC (2023) 92 Cal.App.5th 351, 370 [“The ‘substantial 

factor’ test for causation is appropriate in all tort actions.”]; see

Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 

661 [“We have previously observed that ‘[i]n cases where 

concurrent independent causes contribute to an injury, we apply 

the “substantial factor” test’ [citation], which requires the 

plaintiff to ‘show some substantial link or nexus between 

omission and injury.’”].) Like breach and injury, causation is a 

fact-specific issue for the trier of fact. (Kesner, supra, 1 Cal.5th at 

p. 1144 [“Breach, injury, and causation must be demonstrated on 

the basis of facts adduced at trial, and a jury’s determination of 

each must take into account the particular context in which any 

act or injury occurred.”].)
32

Chase contends the Law Firm cannot establish causation 

because Brumfield’s misconduct was effectively a supervening 

cause of the Law Firm’s injuries. “Under traditional tort 

principles, once a defendant’s conduct is found to have been a 

cause in fact of the plaintiff’s injuries, the conduct of a third party 

will not bar liability unless it operated as a superseding or 

supervening cause, so as to break the chain of legal causation 

between the defendant’s conduct and the plaintiff’s injuries.” 

(Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 770; 

accord, Coyle v. Historic Mission Inn Corp., supra, 24 Cal.App.5th

at p. 645.) “The third party’s misconduct ordinarily will not be 

regarded as a supervening cause if the misconduct itself was 

foreseeable to the defendant.” (Cleveland v. Taft Union High 

School Dist. (2022) 76 Cal.App.5th 776, 810, fn. 15; see Cole, at 

p. 770.)

Foreseeability is therefore the touchstone of the 

supervening cause analysis. “‘If the likelihood that a third person 

may act in a particular manner is the hazard or one of the 

hazards which makes the actor negligent, such an act whether 

innocent, negligent, intentionally tortious, or criminal does not 

prevent the actor from being liable for harm caused thereby.’” 

(Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58, quoting 

Rest.2d Torts, § 449, fn. omitted [“It is of no consequence that the 

harm to plaintiff came about through the negligent or reckless 

acts of [a third party].”]; accord, Weirum v. RKO General, Inc.

(1975) 15 Cal.3d 40, 47. As the Supreme Court explained in

Bullis, supra, 21 Cal.3d at pages 812 to 813, in affirming a 

judgment finding the bank liable for the unauthorized 

withdrawal of funds from an estate’s account, “[The bank] asserts 

that the imposition of liability would punish [the bank] for its 
33

failure ‘to control the conduct of another,’ i.e., [the co-executor of 

the estate]. [Citation.] This contention overlooks the fact that 

the trial court merely reaffirmed the obvious proposition that [the 

bank] owed a duty of due care to its depositors. [The bank] was 

held liable for the estate’s loss because its conduct, in opening

and maintaining the estate’s account, did not meet the standard 

of reasonable care expected of a bank. Its negligent conduct 

resulted in a reasonably foreseeable injury. Thus, liability was 

based on [the bank’s] own negligence, not on a breach of any duty 

to control [the co-executor].”

As discussed, while Brumfield’s own misconduct 

contributed to the Law Firm’s injuries, and improper 

withdrawals of estate assets are precisely the sort of hazard the 

blocked account was created to prevent, there is a question of fact 

whether her misconduct was foreseeable. Accordingly, because 

Chase failed to establish it owed no duty to the Law Firm, and 

the Law Firm created a triable issue of fact as to breach of duty 

and causation, we reverse the trial court’s order granting 

summary judgment.
34

DISPOSITION

The judgment is reversed. The trial court is directed to 

vacate its order granting Chase’s motion for summary judgment 

and to enter a new order denying the motion. The Law Firm is to 

recover its costs on appeal. 

FEUER, J.

We concur:

SEGAL, Acting P. J.

ESCALANTE, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.