Full opinion text
ORDER GRANTING DEFENDANT COMERICA’S MOTION TO DISMISS THIRD AMENDED COMPLAINT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT IMPERIAL’S MOTION TO DISMISS THIRD AMENDED COMPLAINT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT UNION BANK OF CALIFORNIA, N.A.’S MOTION TO DISMISS THIRD AMENDED COMPLAINT; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BANK OF ORANGE COUNTY’S MOTION TO DISMISS THIRD AMENDED COMPLAINT; AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CATHERINE MARY LEIDER’S MOTION TO DISMISS THIRD AMENDED COMPLAINT ORDER GRANTING DEFENDANT UNION BANK OF CALIFORNIA, N.A.’S MOTION TO STRIKE MORROW, District Judge. This class action seeks damages from Union Bank of California, Comerica Bank of California, Imperial Management, Inc., and Bank of Orange County, each of which is alleged to have conspired with Reed Slatkin in effecting a Ponzi scheme that defrauded hundreds of investors out of hundreds of millions of dollars. Plaintiffs allege that these defendants knowingly participated in and facilitated the Ponzi scheme by providing Slatkin with credit, allowing Slatkin to commingle personal and investor funds, and lending their name and prestige to his operations. I. FACTUAL BACKGROUND A. The Alleged Ponzi Scheme Plaintiffs filed this action in federal court on September 5, 2002, alleging claims for aiding and abetting a breach of fiduciary duty, aiding and abetting fraud, breach of fiduciary duty, fraud, negligent misrepresentation, constructive fraud, negligence and violation of California Business and Professions Code §§ 17200 et seq. Plaintiffs filed a first amended complaint on October 23, 2002, that asserted identical causes of action. Defendants moved to dismiss the first amended complaint. On February 20, 2003, the court granted in part and denied in part defendants’ motion to dismiss. Plaintiffs filed a second amended complaint on April 14, 2003. On May 20, 2003, the parties submitted a stipulation that plaintiffs be allowed to file a third amended complaint withdrawing Count XI as well as a request for statutory penalties under California Business & Professions Code § 17200. The court subsequently entered an order on the parties’ stipulation. The third amended complaint defines the putative class plaintiffs seek to represent as “all individuals or entities that (a) made claims in the bankruptcy of Reed E. Slatkin; and (b) received in return less money from Reed E. Slatkin than they entrusted to him to invest.” Additionally, the pleading identifies, by name and amount invested, eighteen individuals and/or entities allegedly defrauded by Slat-kin and the banks. It asserts that each of these “class representatives” falls within the class defined above. Slatkin allegedly began his career as a full-time investment advisor during the mid-1980’s, and invested money on behalf of a variety of individuals. Soon after Slatkin began accepting money from others to invest, he allegedly developed and executed a scheme to defraud those who entrusted their funds to him. One artifice Slatkin used to carry out the scheme was a limited partnership called the Reed Slatkin Investment Club L.P. Slatkin was general partner of the Club; its limited partners were individuals who gave Slatkin money to invest on their behalf. Slatkin actively ran the Club until he filed for bankruptcy on May 1, 2001. Plaintiffs allege that Slatkin operated a classic Ponzi scheme, i.e., he used monies paid by later investors to pay artificially high returns to initial investors, with the ultimate goal of attracting still more investors. In reality, plaintiffs allege, Slatkin’s investment portfolio bore little resemblance to the claims he made. Plaintiffs assert that Slatkin spent investors’ money on a lavish lifestyle, commingled investors’ funds, and paid false returns to some investors with the principal paid by others. Slatkin allegedly received nearly $600,000,000 from investors; of this, approximately $250,000,000 has never been returned, and is still owed to class members. B. Allegations Against Defendants Plaintiffs have sued four separate banking institutions — Union Bank of California, Comerica Bank-California, Bank of Orange County, and Imperial Management, Inc. (collectively “the Banks”). Defendant Union Bank is sued in its individual capacity and as successor to the trust business of Imperial Trust, which it acquired in May 1999. Defendant Bank of Orange County is sued as the direct successor-in-interest to Pacific Inland Bank. Defendant Imperial Management, Inc. is sued as the direct successor-in-interest to Imperial Trust Company. Defendant Comerica Bank is sued as the successor by merger to Imperial Bank (the prior parent of Imperial Trust) and as the alter-ego of co-defendant Imperial Management, Inc., Comerica’s wholly-owned subsidiary. The liability of all four defendants, therefore, hinges on the alleged conduct of Imperial Trust Company, Pacific Inland Bank and/or Union Bank. Plaintiffs have also sued one individual, Mary Catherine Leider, for wrongful acts and omissions allegedly committed as administrator of accounts that had investments in the Club, first at Pacific Inland, and later at Imperial. Plaintiffs allege that Slatkin’s investment scheme depended for its success on the involvement of the defendant Banks. The Banks, or their predecessors-in-interest, allegedly provided Slatkin with three types of assistance: (1) a steady flow of new money; (2) a mechanism for managing investors’ custodial accounts; and (3) an aura of legitimacy that allowed the scheme to flourish. Plaintiffs contend that Slatkin established accounts at the Banks, and induced dozens of investors to transfer millions of dollars to “custodial” or “trustee” accounts there. Upon receipt of the investors’ cash, the Banks allegedly transferred the money into accounts established in the name of the Club. With the Banks’ alleged knowledge and assistance, Slatkin then commingled new investors’ money with his own and other investors’ money. Most of the accounts were held at Pacific Inland Bank, Imperial Trust, and commencing in May 1999, Union Bank. Santa Barbara Bank & Trust held the remaining Club accounts. Plaintiffs further allege that, due to the legitimacy conferred on the scheme by the Banks’ involvement, Slatkin convinced individuals to give him money directly. In addition to lending their prestige to Slat-kin, the Banks allegedly vouched for his skill and trustworthiness when asked. Plaintiffs make numerous specific allegations regarding the conduct of each of the Banks. As respects Imperial and Pacific Inland (Imperial’s predecessor-in-interest), the complaint alleges that individual officers at both Banks acted as salespersons for Slatkin and encouraged individuals to invest with Slatkin. Plaintiffs also contend that individuals at Imperial and Pacific Inland represented to investors that the Club was audited annually, even though neither Bank ever conducted such an audit. They further allege that Imperial failed to certify investors’ account statements despite an obligation to do so, and that it purportedly encouraged investors to rely on its official “certified” statements rather than Slatkin’s unofficial reports. Plaintiffs allege that Imperial was aware of Slatkin’s illegal activities due to the highly unusual nature of the Club. Finally, they assert that Slatkin bribed Mary Catherine Leider, the Club account manager at Imperial, to assist him in the operation of his Ponzi scheme. As respects Union Bank (which acquired Imperial’s trust business in May 1999), plaintiffs allege that, like Imperial, it failed properly to value the investments of the class members, and to audit the investments held in Slatkin accounts as it was required to do. They assert that, in violation of its own policies, Union Bank allowed Slatkin to overdraw the Club checking account by hundreds of thousands of dollars, and extended a $4,000,000 unsecured line of credit to Slatkin in February 2000. Finally, they allege that Union Bank performed “inappropriate favors” for Slatkin to induce him to provide additional business to it. Plaintiffs allege generally that Union Bank knew or should have known of Slatkin’s illegal activities. Plaintiffs argue that all of the Banks “rubber-stamped” the false information Slatkin gave them, and treated the client accounts as “one common pool of fungible and liquid assets.” They also allege that each of the Banks, in its own right or through a predecessor-in-interest, actively participated in Slatkin’s Ponzi scheme with constructive and/or actual knowledge of his crimes. They maintain that each of the Banks knew or should have known that Slatkin was operating a Ponzi scheme, and that, without the assistance provided by the Banks, Slatkin’s Ponzi scheme could not have succeeded. Based on these allegations, plaintiffs’ third amended complaint pleads eleven claims for relief: (1) aiding and abetting a breach of fiduciary duty; (2) aiding and abetting fraud; (3) breach of fiduciary duty; (4) fraud; (5) negligent misrepresentation; (6) constructive fraud; (7) negligence; (8) violation of California Business and Professions Code §§ 17200 et seq.; (9) intentional fraudulent transfer (seven years); (10) intentional fraudulent transfer (four years); and (11) constructive fraudulent transfer (four years). The first two claims are brought by all plaintiffs except Neilson against all defendants. The third, fourth, fifth, sixth and seventh claims are brought by plaintiffs Fred Ockrim, Sheri Ockrim, and Jaroslav Marik against all defendants, and by plaintiffs Wesley West Flexible Partnership, Stedman Family Partnership, Ltd., Stedman as Trustee of the Neva and Wesley West Foundation, George Kriste, Fred Ockrim, Sheri Ock-rim, Jaroslav Marik, and California Community Foundation (“CCF”) against all defendants except Bank of Orange County. The eighth claim is brought by all plaintiffs against all defendants. The last three claims are brought by plaintiff Neilson against Union Bank, Comerica Bank and Imperial Management. Plaintiffs seek approximately $200 million in damages on each of the first two claims, and approximately $24 million on counts three through eight. As respects the fraudulent transfer claims, plaintiffs seek (a) to avoid any transfer of money by Slatkin to the Banks within a specified seven or four year period (“the Seven-Year Period” and “Four-Year Period” respectively); (b) to impose a constructive trust on any transfer of money from Slatkin within the Seven-Year Period or the Four-Year Period, or any proceeds of the transfers; and (c) to require the Banks to convey to the Trustee the value of any transfer of money to them by Slatkin with the Seven-Year Period or Four-Year Period, as well as any proceeds of such transfers. Plaintiffs seek attorneys’ fees on all counts. All five defendants have moved to dismiss the third amended complaint. Defendant Comerica Bank asserts that the complaint fails adequately to allege its liability either as the alter ego of Imperial Management or as the successor-in-interest to Imperial Bank. Defendant Imperial Management contends that the aiding and abetting claims and the fraudulent transfer claim that invokes a seven-year reach back period must be dismissed. Defendant Union Bank challenges the aiding and abetting claims and all claims brought by plaintiff Ockrim. Defendant Bank of Orange County seeks dismissal of the claims for aiding and abetting, breach of fiduciary duty, fraud, negligent misrepresentation, constructive fraud, violation of Business & Professions Code § 17200, and all claims brought by Ockrim. Finally, defendant Leider asserts that the claims for aiding and abetting, breach of fiduciary duty, constructive fraud, fraud, and negligent misrepresentation are deficient. As all motions address similar issues, the court considers them jointly in this order. II. DISCUSSION A. Legal Standard Governing Motions To Dismiss A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.ProC. 12(b)(6). A court may not dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989); Haddock v. Board of Dental Examiners, 111 F.2d 462, 464 (9th Cir.1985) (stating that a court should not dismiss a complaint if it states a claim under any legal theory, even if plaintiff erroneously relies on a different theory). In other words, a Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). In deciding a motion to dismiss for failure to state a claim, the court’s review is limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996); Allarcom Pay Television, Ltd. v. General Instrument Corp., 69 F.3d 381, 385 (9th Cir.1995). The court must accept all factual allegations pleaded in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.1995) (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987)); NL Indus. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). It need not, however, accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). In addition to the allegations of the complaint, a court may consider exhibits submitted with the complaint, documents whose contents are alleged in the complaint when authenticity is not questioned, and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994), overruled on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555, n. 19 (9th Cir.1989). B. Defendants’ Requests For Judicial Notice Four of the five defendants have requested that the court take judicial notice of various documents in ruling on their motions. 1. Union Bank Union Bank has requested that the court take judicial notice of the following documents: a. Declaration of Reed E. Slatkin in Support of Trustee’s Ex Parte Application for a Right to Attach Order And Order for Issuance of Writ of Attachment, filed on August 28, 2002, in In re: Reed Slatkin, Case No. ND 01-11549-RR (Bankr.C.D.Cal.) (“Slatkin ”); b. Complaint for Disallowance (i.e., Objection) and Equitable Subordination of Claim Nos. 437 and 535, and Declaration of Jolynn Runolfson in support thereof, filed in Slatkin on April 23, 2003; c. The Second Amended Complaint, dated August 20, 2002, in Wesley West Flexible Partnership, et al. v. Union Bank of California, et al., CV 02-964 RSWL (“Wesley West ”); d. September 18, 2002, Order in Christensen v. Union Bank of California, N.A., CV 02-608 MMM (CWx) (“Christensen ”); e. January 6, 2003, Order in Christensen; f. Disclosure Statement to Accompany Chapter 11 Trustee and Creditors’ Committee Joint Plan of Reorganization, dated January 30, 2003, filed in Slatkin. g. Stipulation Re: Briefing Schedule for Defendants’ Motions to Dismiss Plaintiffs’ First Amended Complaint; and [Proposed] Order Thereon, filed October 25, 2002, in this case; h. Stipulation re Filing of Third Amended Complaint and [Proposed] Order, filed May 15, 2003, in this case; and i. Second Amended Complaint, dated October 15, 2002, in Christensen, Under the Federal Rules of Evidence, courts may take judicial notice of facts that are not subject to reasonable dispute, either because they are “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201. Court orders and filings are the type of documents that are properly noticed under the rule. Notice can be taken, however, “only for the limited purpose of recognizing the ‘judicial act’ that the order represents on the subject matter of the litigation.” United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (citing Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.1992)). See also General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082, n. 6 (7th Cir.1997) (“We agree that courts generally cannot take notice of findings of fact from other proceedings for the truth [of the matter] asserted therein because these findings are disputable and usually are disputed”); Goetz v. Capital Factors, Inc., 120 F.3d 268, 1997 WL 415340, * 1-2 (9th Cir. July 22, 1997) (Unpub.Disp.) (“although a court may take judicial notice of its own records, it cannot take judicial notice of the truth of the contents of all documents found therein”); San Luis v. Badgley, 136 F.Supp.2d 1136, 1146 (E.D.Cal.2000) (quoting Jones for the proposition that a court “may take judicial notice of a document filed in another court not for the truth of the matters asserted in the litigation, but rather to establish the fact of such litigation and related filings”). Applying this standard, the court takes judicial notice of the existence and legal effect of the documents submitted by Union Bank. 2. Comerica Bank And Imperial Management, Inc. Comerica and Imperial have requested that the court take judicial notice of the following documents: a. The January 6, 2003 transcript of proceedings in Christensen; b. The February 20, 2003 Order Granting Motions to Dismiss entered in this case; c. Plaintiffs Opposition to Imperial’s Motion to Dismiss First Amended Complaint in this case; d. Plaintiffs Opposition to Motion to Strike Portions of the First Amended Complaint in this case; e. Reply of Comerica Bank in Support of Motion to Dismiss Plaintiffs’ First Amended Complaint in this case; and f. The January 6, 2003 transcript of proceedings in this action. For the reasons discussed above, the court takes judicial notice of the existence and legal effect of the documents submitted by Comerica and Imperial. 3. Bank of Orange County The Bank of Orange County has requested that the court take judicial notice of the following documents: a. April 2, 2003, Civil Minutes, granting in part Bank of Orange County’s Motion to Compel; b. April 21, 2003, letter from plaintiffs counsel, Kirkland & Ellis; c. Memorandum and Opinion, filed January 9, 2002, in Wesley West; d. Pacific Inland Contract dated December 30, 1992, signed by Joanne Christensen; e. Pacific Inland Contract dated December 16, 1991, signed by Paul Hawken; f. Pacific Inland Contract dated June 24, 1991, signed by Thomas Rook; and g. Order Granting in Part and Denying in Part Defendant Union Bank of California’s Motion to Dismiss the Second Amended Complaint in Christensen. For the reasons stated earlier, the court takes judicial notice of the existence and legal effect of the documents identified in paragraphs a, c, and g. The court may also take judicial notice of the documents identified in paragraphs d, e, and f, as these are contracts between Pacific Inland Bank and putative class members that provide the foundation for plaintiffs’ claims. “[A] district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiffs complaint necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998). As the Parrino court explained: “Although we have yet to apply this rule to documents crucial to the plaintiffs claims, but not explicitly incorporated in his complaint, such an extension is supported by the policy concern underlying the rule: preventing plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based.” Id. See also Cortee Indus., Inc. v. Sum, Holding L.P., 949 F.2d 42, 47 (2d Cir.1991) (“... we have held that when a plaintiff chooses not to attach to the complaint or incorporate by reference a prospectus upon which it solely relies and which is integral to the complaint, the defendant may produce the prospectus when attacking the complaint for its failure to state a claim, because plaintiff should not so easily be allowed to escape the consequences of its own failure”); In re Northpoint Communications Group, Inc., Securities Litigation, 221 F.Supp.2d 1090, 1095 (N.D.Cal.2002) (“In ruling on a motion to dismiss, a court may take judicial notice of a document if it is relied on in the complaint (regardless of whether it is expressly incorporated therein) and its authenticity is not disputed,” citing Parrino ); Springate v. Weighmasters Murphy, Inc. Money Purchase Pension Plan, 217 F.Supp.2d 1007, 1013 (C.D.Cal.2002) (“For purposes of this Motion to Dismiss, this Court takes judicial notice of documents (1) and (2) only because these documents’ contents are alleged in the Complaint, and their authenticity is not in question”). The April 21, 2003, letter from Kirkland & Ellis, however, identified in paragraph b, is not a proper subject of judicial notice. Its contents are not alleged in the third amended complaint and its authenticity is not undisputed. Compare In re Amylin Pharmaceuticals, Inc., Securities Litigation, No. 01CV1455BTM(NLS), 2002 WL 31520051, * 2 (S.D.Cal. Oct.10, 2002) (“Plaintiffs do not dispute the letter’s authenticity and rely upon it implicitly in their [consolidated complaint] and in their opposition papers. The court may therefore take judicial notice of the October, 2001 letter”). Nor does it concern matters generally known within the court’s territorial jurisdiction or capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Fed. R. Evid. 201. Accordingly, the Bank of Orange County’s motion for judicial notice of the Kirkland & Ellis letter is denied. C. Comerica’s Motion to Dismiss Comerica argues that the claims against it must be dismissed because plaintiffs fail adequately to allege that Comerica is the alter ego of, and successor-in-interest to, Imperial Management, its wholly owned subsidiary. 1. Legal Standards Governing The Alter Ego Doctrine “The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiffs interests. In certain circumstances the court will disregard the corporate entity and will hold the individual shareholders liable for the actions of the corporation.” Mesler v. Bragg Management Co., 39 Cal.3d 290, 300, 216 Cal.Rptr. 443, 702 P.2d 601 (1985). The purpose of the doctrine is to bypass the corporate entity for the purpose of avoiding injustice. Its “essence... is that justice be done[,] ... [and t]hus the corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require.” Id. at 301, 216 Cal.Rptr. 443, 702 P.2d 601. See also Roman Catholic Archbishop of San Francisco v. Superior Court, 15 Cal.App.3d 405, 411, 93 Cal.Rptr. 338 (1971) (“The terminology ‘alter ego’ or ‘piercing the corporate veil’ refers to situations where there has been an abuse of corporate privilege, because of which the equitable owner of a corporation will be held hable for the actions of the corporation,” citing Minton v. Cavaney, 56 Cal.2d 576, 579, 15 Cal.Rptr. 641, 364 P.2d 473 (1961)). Before the doctrine may be invoked, two elements must be alleged: “First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond Corp. v. Superior Court, 83 Cal.App.4th 523, 526, 99 Cal.Rptr.2d 824 (2000); Mesler, supra, 39 Cal.3d at 300, 216 Cal.Rptr. 443, 702 P.2d 601 (“There is no litmus test to determine when the corporate veil will be pierced; rather the result will depend on the circumstances of each particular case. There are, nevertheless, two general requirements: ‘(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow,’ ” quoting Automotriz Del Golfo De California S. A. De C. V. v. Resnick, 47 Cal.2d 792, 796, 306 P.2d 1 (1957)). See also AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 591 (9th Cir.1996). “[0]nly a difference in wording is used in stating the ... concept where the entity sought to be held liable is another corporation instead of an individual.” Las Palmas Associates v. Las Palmas Center Associates, 235 Cal.App.3d 1220, 1249, 1 Cal.Rptr.2d 301 (1991). Like other shareholders, a parent company is presumed to have an existence separate from its subsidiaries. Accordingly, the mere fact that it owns the stock of the subsidiary will not suffice to prove that the two entities are alter egos of one another; rather, the evidence must show that the wholly-owned subsidiary is merely a conduit for, or is financially dependent on, the parent corporation. Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc., 116 Cal.App.3d 111, 119, 172 Cal.Rptr. 74 (1981) (‘“With increasing frequency, courts have demonstrated a readiness to disregard the corporate entity when a wholly owned subsidiary is merely a conduit for, or is financially dependent on, a parent corporation. In the interests of justice and to prevent fraud, the courts will ignore the existence of a corporate entity used to cut off either causes of action against or defenses by another corporate entity,’ ” quoting 1A Ballantine & Sterling, CalifoRnia CORPORATION Laws, § 296.02, pp. 14-32.1-14-33 (4th ed.1980)). Conclusory allegations of “alter ego” status are insufficient to state a claim. Rather, a plaintiff must allege specifically both of the elements of alter ego liability, as well as facts supporting each. In re Currency Conversion Fee Antitrust Litigation, 265 F.Supp.2d 385, 426 (S.D.N.Y.2003) (“These purely conclusory allegations cannot suffice to state a claim based on veil-piercing or alter-ego liability, even under the liberal notice pleading standard”); Wady v. Provident Life and Accident Ins. Co. of America, 216 F.Supp.2d 1060, 1067 (C.D.Cal.2002) (“More pertinent for purposes of the current discussion, none [of the allegations] contains any reference to UnumProvident being the alter ego of Provident. None alleges that Un-umProvident treats the assets of Provident as its own, that it commingles funds with Provident, that it controls the finances of Provident, that it shares officers or directors with Provident, that Provident is undercapitalized, or that the separateness of the subsidiary has ceased. Without such allegations, the issue is not adequately raised, and UnumProvident was not put on notice that this was a theory against which it should be prepared to defend”); Kingdom 5-KR-41, Ltd. v. Star Cruises PLC, No. 01 Civ. 2946(AGS), 2002 WL 432390, * 12 (S.D.N.Y. Mar.20, 2002) (“[I]n order to overcome the presumption of separateness afforded to related corporations, [plaintiff] is required to plead more specific facts supporting its claims, not mere conclusory allegations”); Hokama v. E.F. Hutton & Co., Inc., 566 F.Supp. 636, 647 (C.D.Cal.1983) (“Defendants further argue that plaintiffs cannot circumvent the requirements for secondary liability by blandly alleging that Madgett, Consolidated, and Frane are ‘alter egos’ of other defendants accused of committing primary violations. This point is well taken.... If plaintiffs wish to pursue such a theory of liability, they must allege the elements of the doctrine. Conclusory allegations of alter ego status such as those made in the present complaint are not sufficient”). 2. Whether The Complaint Sufficiently Alleges Liability Against Comerica Comerica does not dispute that the complaint adequetely alleges the first element of alter ego liability-unity of interest or ownership. Rather, it asserts that the pleading fails adequately to allege that plaintiffs will suffer cognizable injustice if the court treats Imperial Management’s acts as the acts of that entity alone. The third amended complaint plainly alleges that an inequitable result will follow if Imperial Management’s acts are treated as its acts alone. It states: “[Bjecause Imperial Management is a mere instrumentality of Comerica Bank-California, an inequitable result would occur if Comerica Bank-California is not a defendant in this action.” The complaint fails to allege facts supporting this statement, however. Plaintiffs assert that the failure to join Comerica would be inequitable because Imperial Management does not have sufficient assets to pay the liabilities it will incur if plaintiffs prevail at trial. California courts have rejected the view that the potential difficulty a plaintiff faces collecting a judgment is an inequitable result that warrants application of the alter ego doctrine. Virtualmagic Asia, Inc. v. Fil-Cartoons, Inc., 99 Cal.App.4th 228, 245, 121 Cal.Rptr.2d 1 (2002) (“[A]lter ego will not be applied absent evidence that an injustice would result from the recognition of separate corporate identities, and ‘[difficulty in enforcing a judgment or collecting a debt does not satisfy this standard,’ ” quoting Sonora Diamond Corp., supra, 83 Cal.App.4th at 539, 99 Cal.Rptr.2d 824); Mid-Century Ins. Co. v. Gardner, 9 Cal. App.4th 1205, 1213, 11 Cal.Rptr.2d 918 (1992) (“ ‘Certainly, it is not sufficient to merely show that a creditor will remain unsatisfied if the corporate veil is not pierced,’ and thus set up such an unhappy circumstance as proof of an ‘inequitable result. In almost every instance where a plaintiff has attempted to invoke the doctrine he is an unsatisfied creditor,’ ” quoting Associated Vendors, Inc. v. Oakland Meat Co., 210 Cal.App.2d 825, 842, 26 Cal.Rptr. 806 (1962)). Rather, California courts generally require some evidence of bad faith conduct on the part of defendants before concluding that an inequitable result justifies an alter ego finding. Mid-Century Ins. Co., supra, 9 Cal.App.4th at 1213, 11 Cal.Rptr.2d 918 (“ ‘The purpose of the doctrine is not to protect every unsatisfied creditor, but rather to afford him protection, where some conduct amounting to bad faith makes it inequitable, under the applicable rule above cited, for the equitable owner of a corporation to hide behind its corporate veil,’ ” quoting Associated Vendors, supra, 210 Cal.App.2d at 842, 26 Cal.Rptr. 806). Here, the complaint fails to allege that Comerica engaged in any bad faith conduct in its acquisition and/or management of Imperial. While plaintiffs cite several cases in which the corporate veil was pierced due to the inadequate initial capitalization of an entity, or the draining of corporate assets after initial capitalization, the complaint does not allege that Comerica is guilty of either practice. Comerica was not involved in the incorporation of Imperial Management, and thus cannot be held liable for any initial under-capitalization of the company. Additionally, the complaint does not allege that Comerica deliberately drained Imperial Management of assets. Rather, plaintiffs allege only that Imperial does not presently have sufficient funds to pay a money judgment in this case. This is not adequate under California law to allege that an inequitable result will follow if the corporate veil is not pierced. Accordingly, the court finds that plaintiffs have failed adequately to allege that Comerica is liable as the alter ego of Imperial Management. Since the complaint does not sufficiently allege Comerica’s liability on an alter ego theory, the claims against it must be dismissed. Moreover, since plaintiffs have had three opportunities to state claims against Comerica, the dismissal will be with prejudice. D. Whether The Complaint Adequately Pleads Aiding And Abetting Plaintiffs’ first and second claims for relief plead the aiding and abetting of a breach of fiduciary duty and the aiding and abetting of fraud respectively. Under California law, “[liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” See Fiol v. Doellstedt, 50 Cal.App.4th 1318, 1325-26, 58 Cal.Rptr.2d 308 (1996) (citing Saunders v. Superior Court, 27 Cal.App.4th 832, 846, 33 Cal.Rptr .2d 438 (1994), and Rest. 2d Torts, § 876). Plaintiffs’ aiding and abetting claims are brought against all defendants. Defendants collectively mount four attacks on the claims: (1) that the complaint fails adequately to plead that defendants knew of Slatkin’s fraudulent scheme; (2) that it fails to plead defendants acted for financial gain as required by California law; (3) that it fails to allege substantial assistance by defendant Leider; and (4) that it fails to allege Leider owed plaintiffs an independent fiduciary duty. The court evaluates each argument in turn. 1. Whether The Complaint Adequately Pleads “Knowledge” Defendants argue that plaintiffs’ aiding and abetting claims are deficient because they fail adequately to allege that defendants had actual knowledge of Slatkin’s fraudulent activities. In the first amended complaint, plaintiffs alleged that the Banks “knew or should have known” of Slatkin’s fraud. The court found such an allegation insufficient because California law requires that a defendant have actual knowledge of tortious activity before it can be held liable as an aider and abettor, and federal courts have found that the phrase “knew or should have known” does not plead actual knowledge. The aiding and abetting claims were thus dismissed with leave to amend. Consistent with the court’s earlier order, the third amended complaint deletes all references to defendants’ constructive knowledge. It asserts, for example, that “Pacific Inland and Imperial knew that Slatkin was in fact engaged in actions amounting to fraud and breach of his fiduciary duty to all Class Members.” “Each Bank, in its own right or through its predecessor in interest, actively participated in Slatkin’s Ponzi scheme with actual knowledge of Slatkin’s crimes.” “The Banks knew that Slatkin was violating his fiduciary duties to his clients and the Club and actively participated in his operation of the Ponzi scheme.” “The Banks knew that Slatkin was engaging in fraud.” “Ms. Leider knew that Slatkin was breaching fiduciary duties he owed to Club members and committing fraud.” Defendants contend these allegations do not cure the earlier deficiency, because they fail to allege actual knowledge of the underlying wrong Slatkin committed. Plaintiffs counter (1) that it is not necessary to plead actual knowledge of a specific underlying wrong; and (2) that even if such an allegation is required, the complaint adequately pleads actual knowledge of specific tortious conduct on Slatkin’s part. Under Rule 9(b) of the Federal Rules of Civil Procedure, while fraud must be pled with specificity, “[mjalice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.r.oiv.pRoc. 9(b). Although this obviates the necessity of pleading detailed facts supporting allegations of knowledge, it does not relieve a pleader of the burden of alleging the nature of the knowledge a defendant purportedly possessed. In the case of an aider and abettor under California law, this must be actual knowledge of the primary violation. Howard v. Superior Court, 2 Cal.App.4th 745, 749, 3 Cal.Rptr.2d 575 (1992) (“while aiding and abetting may not require a defendant to agree to join the wrongful conduct, it necessarily requires a defendant to reach a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act” (emphasis added)); Gerard v. Ross, 204 Cal.App.3d 968, 983, 251 Cal.Rptr. 604 (1988) (“A defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he or she knew that a tort had been, or was to be, committed, and acted with the intent of facilitating the commission of that tort”). See also Cope v. Price Waterhouse, 990 F.2d 1256, 1993 WL 102598, * 6 (9th Cir. Apr.7, 1993) (Unpub.Disp.) (“In a case of secondary liability for common law fraud, the California Supreme Court held that ‘[t]he words “aid and abet” ... have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained.’ ... The Second Restatement of Torts also supports a finding that actual knowledge is the proper standard for a claim of aiding and abetting fraud. Section 876(b) provides for secondary liability for tortious conduct if a party ‘knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.’ ... Other subsections indicate that the term ‘knows’ does not include both actual knowledge and recklessness. When the drafters of the Restatement meant to include recklessness as an element of liability, they did so explicitly”); Resolution Trust Corp. v. Rowe, No. C 90-20114 BAC, 1993 WL 183512, * 5 (N.D.Cal. Feb.8, 1993) (“Under California law, actual knowledge and intent are required to impose aiding and abetting liability,” citing Gerard, supra, 204 Cal.App.3d at 983, 251 Cal.Rptr. 604); Hashimoto v. Clark, 264 B.R. 585, 598 (D.Ariz.2001) (holding under California law that “[t]he requisite degree of knowledge for an aiding and abetting claim is actual knowledge. This means Trustee must come forward with evidence to show that Safrabank knew Clark was breaching a duty owed Sheffield”). The question is whether plaintiffs’ allegations satisfy this standard. Generally, courts have found pleadings sufficient if they allege generally that defendants had actual knowledge of a specific primary violation. See Dubai Islamic Bank v. Citibank, N.A., 256 F.Supp.2d 158, 167 (S.D.N.Y.2003) (holding that a complaint asserting that “ ‘Citibank, through its officers and employees, ... actually knew of and participated in the unlawful scheme to steal from DIB and launder the money stolen from DIB’ ... sufficiently allege[d] that Citibank had actual knowledge”); In re Sharp Intern. Corp., 281 B.R. 506, 513 (Bankr.E.D.N.Y.2002) (“To analyze the sufficiency of Sharp’s pleading, it is necessary to identify precisely the breach of fiduciary duty for which Sharp seeks to hold State Street liable ... Sharp’s pleading falls short of alleging that State Street had actual knowledge of the Spitzes’ diversion of monies from Sharp”); Bogart v. National Community Banks, Inc., Civ. A. No. 90-5032, 1992 WL 203788, * 8 (D.N.J. Apr.25, 1992) (holding that plaintiff had adequately pleaded the actual knowledge element of an aiding and abetting claim because “Rule 9(b) clearly provides that ‘intent, knowledge, and other condition of mind of a person may be averred generally.’ ... Rule 9(b) is satisfied where plaintiff ‘alleges generally that defendants had actual knowledge of the materially false and misleading statements and omissions ... or acted with reckless disregard for the truth.’ ... Plaintiff has met this standard”); Smith v. Network Equipment Technologies, Inc., Nos. C-90-1138 DLJ, C-90-1281 DLJ and C-90-1372 DLJ, 1990 WL 263846, * 7 (N.D.Cal. Oct.19, 1990) (citing In re Thortec Securities Litigation, [1989 Transfer Binder] CCH Fed. Sec. L. Rep. ¶ 94,330, 1989 WL 67429 (N.D.Cal. 1989), for the proposition that a “general averment of actual knowledge [is] sufficient to plead a claim of aiding and abetting liability”). Applying this standard, the complaint adequately pleads that defendants had actual knowledge of the primary violation committed by Slatkin. The complaint asserts that the Banks knew Slatkin was committing fraud and was breaching his fiduciary duties to class members. It also alleges that each bank actively participated in Slatkin’s Ponzi scheme with knowledge of his crimes. Slatkin’s crime, of course, was the operation of a Ponzi scheme that defrauded hundreds of investors and caused losses of hundreds of millions of dollars. The complaint details the manner in which the Ponzi scheme operated, describes Slatkin’s fraudulent transactions, and outlines the Banks’ involvement in these activities. It alleges, in particular, that the Banks utilized atypical banking procedures to service Slatkin’s accounts, raising an inference that they knew of the Ponzi scheme and sought to accommodate it by altering their normal ways of doing business. This supports the general allegations of knowledge. See, e.g., Aetna Casualty and Surety Co. v. Leakey Construction Co., 219 F.3d 519, 536 (6th Cir.2000) (“... although short-term lending may be ‘commonplace,’ the details of this particular loan (e.g., its four-day duration straddling the July 1996 month end) were highly unusual”); Camp v. Dema, 948 F.2d 455, 459 (8th Cir.1991) (“A party who engages in atypical business transactions or actions which lack business justification may be found hable as an aider and abettor with a minimal showing of knowledge,” citing Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1010 (11th Cir.1985)); Woodward v. Metro Bank of Dallas, 522 F.2d 84, 97 (5th Cir.1975) (“Conversely, if the method or transaction is atypical or lacks business justification, it may be possible to infer the knowledge necessary for aiding and abetting liability”). While it is true the complaint does not directly state that the Banks knew Slatkin was running a Ponzi scheme and stealing investor funds, this is the net effect of allegations that the Banks knew of Slatkin’s “fraud,” “actively participated” in the Ponzi scheme with knowledge of his “crimes,” and accommodated him by using atypical banking procedures to service his accounts. The Banks argue that the pleading is insufficient because multiple types of “fraud” are alleged in the complaint. “Crimes,” they assert, could refer to Slat-kin’s failure to register as an investment advisor or to his overdrawing of accounts, both of which are alleged in the complaint. To the extent this is the reference, the Banks maintain, the allegations are wholly insufficient, as plaintiffs do not allege that they have suffered damage as a result of these misdeeds on Slatkin’s part. The complaint, however, references “crimes” in the context of an allegation that directly concerns Slatkin’s Ponzi scheme, and asserts the Banks actively participated in it. Read liberally, as it must be for purposes of a Rule 12(b)(6) motion, this allegation pleads that the Banks knew of the Ponzi scheme. See Aetna Casualty and Surety Co., supra, 219 F.3d at 533-34 (“If one is aware that he has a role in an improper activity, ... then surely he knows that the primary party’s conduct is tortious”). The Banks’ reading to the contrary seeks to parse the pleading too finely for Rule 8 purposes. This is particularly true when one considers the detail with which Slatkin’s underlying wrong and the Banks’ substantial assistance is pled. See, e.g., Cromer Finance Ltd. v. Berger, 137 F.Supp.2d 452, 494 (S.D.N.Y.2001) (“To satisfy the knowledge requirement of these claims, New York law requires that a defendant have ‘actual knowledge’ of the underlying fraud. ... The defendant’s knowledge and intent, however, need only be ‘averred generally.’ ... A plaintiff satisfies the scienter pleading requirement where it identifies ‘circumstances indicating conscious behavior by the defendant,’ ... or a clear opportunity and a motive to aid the fraud”). Defendants cite no cases to the contrary. Accordingly, the court finds that the complaint adequately pleads the Banks’ actual knowledge of Slatkin’s underlying fraud, and denies their motion to dismiss the aiding and abetting claims on this basis. 2. Whether The Complaint Adequately Pleads “Financial Gain” The Banks next argue that the claim for aiding and abetting a breach of fiduciary duty fails because it does not adequately plead that they participated in the breach for financial gain or advantage. California courts have generally held that, to hold a non-fiduciary liable for aiding and abetting a fiduciary’s breach of his duties, the non-fiduciary must have participated in the breach for personal gain or in furtherance of its own financial advantage. See Doctors’ Co. v. Superior Court, 49 Cal.3d 39, 47, 260 Cal.Rptr. 183, 775 P.2d 508 (1989). In the first amended complaint, plaintiffs alleged that the Banks acted for their own financial advantage because they received substantial fees from Slatkin and his investors; The court found that this did not adequately plead financial gain, citing the fact that California courts uniformly hold that ordinary fees, even fees calculated on the basis of the amount of assets held in an account, do not satisfy the “personal gain or financial advantage” requirement. Consistent with the court’s order, plaintiffs amended the complaint to allege new facts regarding the financial gain defendants obtained through their dealings with Slatkin. Defendants assert that these new allegations remain inadequate. Plaintiffs counter (1) that financial gain is not a required element for aiding and abetting liability under California law; (2) that the complaint nonetheless adequately alleges conduct by the Banks in furtherance of their own financial advantage; and (3) that the bribes Slatkin allegedly paid to Leider are properly imputed to the Banks under the doctrine of respon-deat superior, and constitute financial gain. Plaintiffs argue first that financial gain is not a required element of all aiding and abetting claims. Rather, they assert that the need to plead and prove financial gain arises only in cases alleging wrongful conduct by an agent or employee of a fiduciary. Additionally, they maintain that including financial gain as an element of aiding and abetting a breach of fiduciary duty confuses that tort with conspiracy. Finally, plaintiffs contend that, because California has adopted the Restatement definition of aiding and abetting, which does not include a “financial gain” requirement, it is not an element of the tort. The court evaluates each argument in turn. Plaintiffs first argue that the financial gain requirement constitutes an exception to the agent’s immunity rule, and thus does not apply where the defendant is not an agent of the party responsible for the underlying harm. The agent’s immunity rule provides that duly acting agents and employees cannot be held liable for conspiring with their principals. Doctors’ Co., supra, 49 Cal.3d at 45, 260 Cal.Rptr. 183, 775 P.2d 508 (“This rule ... ‘derives from the principle that ordinarily corporate agents and employees acting for and on behalf of the corporation cannot be held liable for inducing a breach of the corporation’s contract since being in a confidential relationship to the corporation their action in this respect is privileged,’ ” quoting Wise v. Southern Pacific Co., 223 Cal. App.2d 50, 72, 35 Cal.Rptr. 652 (1963)). The rule does not apply where the agent acts for his or her own financial gain. See id. at 47, 260 Cal.Rptr. 183, 775 P.2d 508 (the rule “does not preclude the subjection of agents to conspiracy liability for conduct which the agents carry out ‘as individuals for their individual advantage’ and not solely on behalf of the principal. ... Since the nonfiduciary defendants ... acted not simply as agents or employees of the fiduciary defendants but rather in furtherance of their own financial gain, they could not have been relieved from liability under the [agent’s immunity rule]”). See also Skarbrevik v. Cohen, England & Whitfield, 231 Cal.App.3d 692, 710, 282 Cal.Rptr. 627 (1991) (applying Doctors’ Co. to reverse a verdict against an attorney where the facts at trial established that the attorney received no more than ordinary fees for legal work performed for the client company); Wolf v. Mitchell, Silberberg & Knupp, 76 Cal.App.4th 1030, 1040, 90 Cal.Rptr.2d 792 (1999) (holding that a beneficiary had standing to sue a trustee’s attorneys where the attorneys were alleged to have actively concealed the dissipation of trust assets in order to keep receiving a greater amount of the fees than they would have otherwise); Pierce v. Lyman, 1 Cal.App.4th 1093, 1104-06, 3 Cal.Rptr.2d 236 (1991) (applying Doctors’ Co. to reverse the dismissal of a complaint on demurrer where the complaint alleged that attorneys for a trust had engaged in misrepresentations, concealment and self-dealing for personal financial gain). The question is whether these cases, which clearly applied the financial gain requirement as an exception to the agent’s immunity rule, mandate a finding that it is properly applied only in that context. None expressly limits the requirement in this manner. Plaintiffs assert, however, that 1-800 Contacts, Inc. v. Steinberg, 107 Cal.App.4th 568, 132 Cal.Rptr.2d 789 (2003), and Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI, 100 Cal.App.4th 1102, 123 Cal.Rptr.2d 297 (2002), support their argument in this regard. Both 1-800 Contacts and Everest Investors are conspiracy cases, which based their holdings ultimately on the fact that defendants did not owe plaintiffs an independent duty and thus could not conspire to breach that duty. See 1-800 Contacts, supra, 107 Cal.App.4th at 592-93, 132 Cal.Rptr.2d 789 (“Breach of fiduciary duty is a tort that by definition may be committed by only a limited class of persons .... In the case of Conder’s fiduciary duty to plaintiff as its former attorney, that class did not include Steinberg. Plaintiff’s effort to hold him nevertheless liable for Conder’s alleged breach through the doctrine of conspiracy was legally unauthorized”); Everest Investors, supra, 100 Cal.App.4th at 1107-08, 123 Cal.Rptr.2d 297 (“Since the only duty allegedly breached as a result of the alleged conspiracy is a fiduciary duty owed by the General Partners but not by Whitehall, Whitehall cannot be held accountable to Everest on a conspiracy theory”). In reaching this result, both the 1-800 Contacts and the Everest Investors courts took pains to note that the “financial gain” requirement is an exception to the agent’s immunity rule and, in the context of a claim for conspiracy, cannot substitute for or create a duty where none otherwise exists. Both cited the “two independent principles” on which Doctors’ Co. was based — the fact that parties cannot be liable for conspiring to breach a duty they do not owe and the agent’s immunity rule, and noted that the exception for conduct undertaken for one’s own financial gain applies only to the agent’s immunity rule. See 1-800 Contacts, supra, 107 Cal. App.4th at 592, 132 Cal.Rptr.2d 789; Everest Investors, supra, 100 Cal.App.4th at 1107-08, 1109, 123 Cal.Rptr .2d 297. Each of 1-800 Contacts and Everest Investors criticizes earlier California appellate decisions holding that agents of fiduciaries who act to further their own financial interests can be held liable for conspiring to breach or for aiding and abetting a fiduciary’s breach of duty. Among the decisions criticized are those on which the court earlier relied in holding that plaintiffs had to plead that the Banks acted for their own financial gain — Pierce, supra, 1 Cal.App.4th 1093, 3 Cal.Rptr.2d 236, and City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 68 Cal.App.4th 445, 80 Cal.Rptr.2d 329 (1998). See Everest Investors, supra, 100 Cal.App.4th at 1108-09, 123 Cal.Rptr.2d 297. See also 1-800 Contacts, supra, 107 Cal.App.4th at 592, 132 Cal.Rptr.2d 789. The Pierce court held that Doctors’ Co. stated two exceptions to the rule that one cannot conspire to breach a duty he or she does not owe. The first of these, the court said, is where the party owes an independent duty to the plaintiff; the second, it held, is where a party participates in the breach of another’s duty for his or her own financial gain. See Pierce, supra, 1 Cal.App.4th at 1104-05, 3 Cal.Rptr.2d 236 (“Doctors’ Co.... cited several exceptions to this rule. Most notably, where an attorney conspires with a client to violate a statutory duty peculiar to the client, the attorney may be hable for his or her participation in the violation of the duty if the attorney was acting in furtherance of his or her own financial gain.... Also to be distinguished is the case where an attorney violates his or her own duty to the plaintiff...”). Concluding that the complaint adequately alleged that the attorney defendants had acted for their own personal gain, the court held that it stated a claim for breach of fiduciary duty against them. Id. at 1105-06, 3 Cal.Rptr.2d 236. Relying on Pierce and Doctors’ Co., the City of Atascadero court held that “[u]nder California law, the right to sue a third party for participating in a fiduciary’s breach of trust is limited to situations in which the third party was acting for personal gain or in furtherance of his or her own financial advantage.... As long as the third parties were acting to further their own individual economic interests, they may be liable for actively participating in a fiduciary’s breach of his or her trust.” City of Atascadero, supra, 68 Cal.App.4th at 463, 80 Cal.Rptr.2d 329. The court discussed a recent appellate decision—Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571, 47 Cal.Rptr.2d 752 (1995)—which, citing the California Supreme Court’s decision in Applied Equipment, held that a party not in a fiduciary relationship with the plaintiff could not be held liable for conspiring to breach a fiduciary’s duty to the plaintiff. City of Atascadero, supra, 68 Cal.App.4th at 464, n. 14, 80 Cal.Rptr.2d 329. The Atascadero court concluded that Kidron had overlooked the exception to this general rule created by Doctors’ Co. for cases where the non-fiduciary acts for his or her own financial gain, and stated that non-fiduciaries could be held liable for aiding and abetting a breach of fiduciary duty where they acted for individual advantage. Id. As this brief summary of the cases makes clear, there appears to be a clear division among the California Courts of Appeal regarding the proper interpretation of the California Supreme Court’s decisions in Doctors’ Co. and Applied Equipment. The court must thus attempt to discern how the Supreme Court would itself decide the issue in the context of this case. See Katz v. Children’s Hosp. of Orange County, 28 F.3d 1520, 1528 (9th Cir.1994) (“Our task is to predict how the California Supreme Court would interpret section 340.5”); Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.1982) (determining which of several conflicting intermediate state court decisions the state supreme court would adopt). The court first notes that Pierce, City of Atascadero, and Wolf each applied section 326 of the Restatement (Second) of Trusts, which provides that “[a] third person who, although not a transferee of trust property, has notice that the trustee is committing a breach of trust and participates therein is liable to the beneficiary for any loss caused by the breach of trust.” While the holdings of the cases regarding breach of fiduciary duty are broader, it appears they were informed by the particular trust context in which the cases arose, as each court attempted to harmonize the common law trust principles reflected in the Restatement with the California Supreme Court’s pronouncements in Doctors’ Co. See Wolf, supra, 76 Cal.App.4th at 1039-40, 90 Cal.Rptr.2d 792 (addressing a complaint that alleged a claim for active participation in a trustee’s breach of trust); City of Atascadero, supra, 68 Cal.App.4th at 463-64, 80 Cal.Rptr.2d 329 (stating that the common law rule set forth in the Restatement was limited by Doctors’ Co., but that the “basic principles” remained the same); Pierce, supra, 1 Cal.App.4th at 1103-04, 3 Cal.Rptr.2d 236 (discussing § 326 and stating that “[t]he right to sue attorneys, agents, or employees of a fiduciary for participation in the fiduciary’s breach of trust has been circumscribed by the California Supreme Court in Doctors’ Co.... ”). Perhaps because of the trust context in which they arise, and the nonspecific language of the Restatement section they apply, the cases do not clearly distinguish between claims for breach of fiduciary duty, conspiracy to breach a fiduciary duty, and aiding and abetting the breach of a fiduciary duty. The instant case does not involve a breach of fiduciary duty by a trustee. Thus, to the extent Pierce and City of Atascadero were informed by the common law of trusts, and blurred the distinction between conspiracy and aiding and abetting liability as a result, they are inapposite to this case. 1-800 Contacts and Everest Investors, while conspiracy cases, address the applicability of the financial gain requirement outside the trust context. More fundamentally, these courts’ interpretation of the Doctors’ Co. and Applied Equipment decisions is correct. Both Doctors’ Co. and Applied Equipment are conspiracy cases. The starting point for their analysis is the principle that a civil conspiracy is not an independent tort and gives rise to a cause of action only when a civil wrong has been committed that results in damage. See Applied Equipment, supra, 7 Cal.4th at 511, 28 Cal.Rptr.2d 475, 869 P.2d 454; Doctors’ Co., supra, 49 Cal.3d at 44, 260 Cal.Rptr. 183, 775 P.2d 508. Both eases articulate the doctrine that a conspiracy claim may not be asserted against one who did not owe the injured party a duty. Applied Equipment, supra, 7 Cal.4th at 511, 28 Cal.Rptr .2d 475, 869 P.2d 454; Doctors’ Co., supra, 49 Cal.3d at 44, 260 Cal.Rptr. 183, 775 P.2d 508. While Doctors’ Co. also relied on the agent’s immunity rule, and discussed the financial gain exception to that rule (see 49 Cal.3d at 44, 260 Cal.Rptr. 183, 775 P.2d 508), the Supreme Court in Applied Equipment made clear that this issue was “independent” from the question of duty. To the extent, therefore, that Pierce and City of Atas-cadero read Doctors’ Co. as permitting a conspiracy cause of action to proceed against a party who does not owe plaintiff a duty solely because the party acted for his or her own financial gain, the court concludes that they are incorrectly decided, and that the California Supreme Court would so hold. This does not resolve the precise question that is presently before the court, however, as plaintiffs do not charge the Banks with conspiracy, but rather with aiding and abetting the breach of a fiduciary duty. Under California law, such a cause of action does not require that the aider and abettor owe plaintiff a duty so long as it knows the primary wrongdoer’s conduct constitutes a breach of duty, and it substantially assists that breach of duty. See Fiol, supra, 50 Cal.App.4th at 1325-26, 58 Cal.Rptr.2d 308.