Judge: Barbara M. Scheper, Case: 22STCV23186, Date: 2023-08-24 Tentative Ruling

Case Number: 22STCV23186    Hearing Date: August 24, 2023    Dept: 30

Dept. 30

Calendar No.

American Express National Bank vs. Williams, et. al., Case No. 22STCV23186p

Tentative Ruling re:  Plaintiff’s Motion for Summary Judgment 

Plaintiff American Express National Bank (Plaintiff) moves for summary judgment against Defendants Keith Williams and Artium AME, Inc. (collectively, Defendants). The motion is granted.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)        The Court’s “role on summary judgment is simply to decide whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496.) “The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.” (Orser v. George (1967) 252 Cal.App.2d 660, 668.)

Plaintiff’s Complaint asserts common counts against Defendants for account stated and open book account, based on money allegedly owed by Defendants for credit extended by  Plaintiff on a credit card account.

Common Counts for (1) Account Stated and (2) Open Book Account

“The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460.) 

“A ‘book account’ is a ‘detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relationship, and shows the debits and credits in connection therewith. . .’” (Professional Collection Consultants v. Laron (2017) 8 Cal. App. 5th 958, 969 (Laron).)  A creditor must keep these records in the regular course of its business and “in a reasonably permanent form,” such as a book or card file. (Code of Civ. Proc., § 337a.) “A book account is ‘open’ where a balance remains due on the account.” (Laron, 8 Cal.App.5th at 969.)    

“An account stated is ‘an agreement, based on prior transactions between the parties, that the terms of an account are true and that the balance struck is due and owing.’” (Laron, 8 Cal.App.5th at 968.) “When an account stated is ‘assented to, either expressly or impliedly, it becomes a new contract.’ . . . Accordingly, an action on an account stated is not based on the parties’ original transactions, but on the new contract under which the parties have agreed to the balance due.” (Ibid.)

On May 14, 2020, Defendants opened an American Express Business Platinum Account (the Account) with Plaintiff. (Plaintiff’s Undisputed Material Facts (PUMF) 1.) The terms and conditions for use of the Account are governed by a Cardmember Agreement, under which Defendants were made responsible for repayment and required to make regular monthly payments on the Account. (PUMF 2, 6; Touhidi Decl. ¶ 10, Ex. A.) Plaintiff periodically updates the terms and conditions of the Cardmember Agreement and transmits copies of the updated agreement to cardmembers. (PUMF 3.) Defendants used the Account to pay for various goods and services. (PUMF 5; Touhidi Decl. ¶ 12, Ex. C.)

Defendants failed to make the required monthly payments on the Account, leaving an unpaid balance of $48,745.38. (UMF 7; Touhidi Decl. ¶ 11, Ex. B [23].) Under the Cardmember Agreement, Defendants had a sixty-day period to dispute billing errors by submitting the dispute in writing to Plaintiff. (UMF 9; Touhidi Decl., Ex. A.) There are no unresolved billing disputes on the Account. (UMF 10; Touhidi Decl. ¶ 14.) Because Defendants are in default on the Account, pursuant to the terms of the Cardmember Agreement, the total balance on the Account is due. (UMF 11, Touhidi Decl., Ex. A [15].)

            Plaintiff’s evidence shows that there is no triable issue of material fact as to the existence of an account stated and an open book account between the parties. Defendants’ evidence, consisting of a declaration from Defendant Keith Williams, fails to meet their burden to establish a triable dispute. Williams states that he does not recall ever entering into or applying for the Cardmember Agreement, and was never provided with the terms of the Cardmember Agreement. (Williams Decl. ¶¶ 3-7.) Williams further states that “there are fees charged on everyone one of the [billing statements] that I did not agree with” and “[t]here are also purchases that I do not recall I ever made on the monthly statements.” (Williams Decl. ¶¶ 10-11.)

To establish a genuine dispute of material fact, a party must present affirmative evidence; “bald assertions that genuine issues of material fact exist are insufficient.” (Galen v. County of Los Angeles (9th Cir. 2007) 477 F.3d 652, 658.) Williams’ unsupported assertions that he did not enter into the Cardmember Agreement or make certain unspecified purchases do not constitute substantial evidence responsive to the Cardmember Agreement and billing statements presented by Plaintiff, authenticated by Plaintiff’s custodian of records. The declaration fails to show any genuine dispute as to either the existence of the Cardmember Agreement or the amount owed under it.  In fact, according to the statements in Plaintiff’s Exhibit C, the statements were sent to Defendants at the same address every month between September 2020 and August 2022.  Moreover, payment was made on the account every month between September 2020 until April 2022.  Defendant’s conclusory declaration fails to create a genuine issue of disputed fact.  Accordingly, the Court grants summary judgment for Plaintiff on its claims for account stated and open book account, based on a balance due of $48,745.38.