Civil Code 1719, subdivision (a) provides in part that any person who draws a check that is


Civil Code §1719, subdivision (a) provides in part that any person who draws a check that is dishonored due to insufficient funds shall be liable to the payee for the amount owing upon the check and treble damages of at least $100, not to exceed $500.

   In this §1719 action, we conclude the [drawer] of a dishonored check may raise defenses under the Uniform Commercial Code ([UCC Revised 3] ‘‘UCC’’) to establish that the check is unenforceable. We affirm the summary judgment for defendants.


   Attorney Eliot Disner was sued after serving as an intermediary for his clients, Irvin and Dorothea Kipnes, by tendering a check for a portion of the $961,000 settlement the Kip-neses owed to Sidney and Lynne Cohen.

   The Kip-neses had made an initial $300,000 settlement payment to the Cohens on March 5, 1993, and their second payment of $100,100 was due on March 9, 1993. Under the settlement agreement, a missed payment would entitle the Cohens to enter judgment against the Kip-neses for $1.3 million less any partial payments.

   The Kip-neses gave Disner checks totalling $100,100 which he deposited into his professional corporation’s client trust account on March 9, 1993. After confirming with the Kip-neses’ bank that their account held sufficient funds, Disner wrote and delivered a trust account check for $100,100 to the Cohens’ attorney, with this note: ‘‘Please find $100,100 in settlement (partial) of Cohen v. Kipnes, et al[.] Per our agreement, delivery to you constitutes timely delivery to your clients.’’ Also typed on the check was a notation identifying the underlying lawsuit.

   Without Disner’s knowledge, the Kip-neses stopped payment on their checks to him, leaving him with insufficient funds in the trust account to cover the check to the Cohens. The trust account check bounced; the Kip-neses declared bankruptcy; and the Cohens served Disner and his professional corporation (jointly, Disner) with the statutory demand for payment under §1719. The Cohens sought the amount written on the check plus the $500 statutory penalty authorized under §1719.

   Both sides moved for summary judgment. The trial court denied the Cohens’ motion and entered summary judgment for Disner, reasoning he is not liable on the check because he was a mere conduit or agent for transferring money from the Kip-neses to the Cohens. The Cohens appealed from the judgment.


   The Cohens do not dispute on appeal that Disner was a mere conduit or agent for transferring funds. They contend his representative status and motivations for transferring the funds are irrelevant. According to the Cohens, §1719 imposes strict liability against the [drawer] of a check drawn on an account lacking sufficient funds.

   Their contention of strict liability is based on legislative omission. While the UCC permits the [drawer] of a dishonored check to prove that he signed in a representative capacity and that the holder in due course took the check with notice of the representative’s lack of liability (UCC, §3–402, subd. (b)(2), sometimes hereinafter referred to as the ‘‘representative capacity’’ defense), §1719 does not mention this defense.


   The UCC recognizes the complexity of commercial transactions beyond the few good faith disputes mentioned in §1719. For example, as against a holder in due course, the UCC permits the [drawer] to assert defenses of infancy, duress, lack of legal capacity, illegality of the contract, fraud in the inducement, or discharge in bankruptcy proceedings. (UCC, §3–305 (a)). If we were to accept the Cohens’ position that §1719 is a strict liability statute (with the sole exception of the stop payment defense), we would create a conflict with the preexisting law of negotiable instruments.


   Nothing in §1719 affirmatively supports the Cohens’ contention that the ‘‘representative capacity’’ and other UCC defenses were written out of §1719. On the contrary, the express language of subdivision (a) compels us to the opposite conclusion.


   By acknowledging there must be an enforceable obligation to pay, §1719 echoes the UCC, which precludes recovery where the payee has no ‘‘right to enforce the obligation of a party to pay an instrument.’’ (UCC, §3–305, subd. (a).) If the [drawer] has no enforceable obligation to pay a dishonored check, there is no amount ‘‘owing upon that check’’ under the plain language of §1719.


   We reject the Cohens’ assertion in their reply brief that the ‘‘representative capacity’’ defense is inapplicable here because the conditions of UCC §3–402, subdivision (c) have not been met. That subdivision provides: ‘‘If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the representative person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.’’

   According to the official code comment on that subdivision: ‘‘Subdivision (c) is directed at the check cases. It states that if the check identifies the represented person, the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify the person on whose account the check is drawn. In this case, nobody is deceived into thinking that the person signing the check is meant to be liable * * *.’’ [Citation.]

   As we understand it, the Cohens’ assertion is that because UCC §3–402, subdivision (b)(2)’s ‘‘representative capacity’’ defense is ‘‘subject to’’ subdivision (c), Disner may not be relieved of liability unless he fulfills the requirements of the subdivision (c) defense. We do not read subdivisions (b)(2) and (c) in that restrictive manner. In our view, any finding of liability under UCC §3–402, subdivision (b)(2) is subject to subdivision (c)’s additional exception that the representative is not liable if he signed his name on a personalized check identifying the account of the represented person. Subdivision (c) expands rather than contracts the representative’s defenses.

   We conclude that §1719, by its clear and unambiguous language, permits the [drawer] of a dishonored check to prove he has no enforceable obligation to pay the check.


   We affirm the summary judgment for defendants. Defendants are awarded costs on appeal.

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Smith and Roberson Business Law

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Authors: Richard A. Mann, Barry S. Roberts

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