Judge Elaine W. Mandel, Case Number: SC129046, Date: 2024-01-17 Tentative Ruling

Judge: Elaine W. Mandel, Case: SC129046, Date: 2024-01-17 Tentative Ruling

Case Number: SC129046 Hearing Date: February 16, 2024 Dept: P

Tentative Ruling

American Express Centurion Bank v. Opiparo, Case No. SC129046

Hearing date February 16, 2024

Plaintiff American Express’ Motion for Summary Judgment/Adjudication

Plaintiff alleges defendant failed to pay for credit card charges. The Court entered default judgment against defendant in the amount of $133,760.40. On March 2, 2023 the Court granted defendant’s motion to vacate default judgment. See 3/02/23 Minute Order.

Plaintiff moves for summary judgment or, alternatively, summary adjudication. The proof of service indicates plaintiff served defendant with a motion for judgment on the pleadings on September 5, 2023. The Court is unsure whether there is a typographical error in the proof of service or whether the instant MSJ/MSA motion was never served on defendant. As of January 11, 2024, no opposition has been filed.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether opposing party can show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. Code Civ. Proc. §437c(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.

In moving for summary judgment, a plaintiff is not required to “disprove any defense asserted by the defendant as well as prove each element of his own cause of action . . . [and] [a]ll that the plaintiff need to do is prove[] each element of the cause of action.” WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532. “Once the plaintiff makes an adequate initial showing, the burden shifts to the defendant to show a triable issue of fact as to that cause of action or a defense thereto.” Id., citation omitted.

Plaintiff asserts there was an account stated and open book account between the parties. “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; [and] (3) a promise by the debtor, express or implied, to pay the amount due.” Leighton v. Forster (2017) 8 Cal.App.5th 467, 491, citations omitted.

To establish an open book account, plaintiff must prove: (1) plaintiff and defendant had a financial transaction; (2) plaintiff kept an account of the debits and credits; (3) defendant owes money; and (4) the amount owed. See CACI No. 372.

On or about January 2012 defendant opened an American Express account. See Plaintiff’s Separate Statement, No. 1. The terms and conditions for use of the account are governed by a cardmember agreement. Id., Nos. 2-3. Defendant used the account and agreed to be bound by the terms and conditions of the agreement. Id., No. 4. Defendant used the account to pay for goods and services and/or obtain cash advances. Id., No. 5. Pursuant to the agreement, defendant was personally responsible for repaying charges, advances, fees and interest. Id., No. 6.

Defendant failed to make payments. Plaintiff’s Separate Statement, No. 7. American Express maintained an accounting of credits and debits in the form of billing statements and sent billing statements to defendant monthly. Id., No. 8. Defendant had a 60-day period to dispute billing errors. Id., No.9. There are no unresolved billing disputes on defendant’s account. Id., No. 10. The balance is $133,195. Id., No.11.

Plaintiff presents facts which establish the elements of its claims for account stated and open book account. The burden shifts to defendant to show a triable issue of material fact. Defendant failed to oppose the motion.

Regarding the quantum meruit claim, plaintiff presented undisputed material facts which establishes its claim for quantum meruit. The burden shifts to defendant to show a triable issue of material fact. Defendant failed to oppose.

The court does not have a proof of service showing the motion was served on defendant. Plaintiff must provide this prior to the court being able to rule. GRANTED CONTINGENT on the proof of service.