Judge: Frank M. Tavelman, Case: 23BBCV00741, Date: 2024-01-12 Tentative Ruling

Case Number: 23BBCV00741    Hearing Date: January 12, 2024    Dept: A

MOTION FOR SUMMARY JUDGMENT
Los Angeles Superior Court Case # 23BBCV00741

NOTICE: 

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. 

ALLEGATIONS:  

American Express National Bank (“American Express”) brings this action against Aluyah Imoisili (“Defendant”). American Express alleges Defendant maintained a credit card with them for a number of years but stopped monthly required payments in 2022. American Express seeks to recover the outstanding balance on the account, which is $73,934.56. 

American Express now moves for summary judgment of its Complaint. Defendant, in pro per, opposes the motion and American Express replies. 

EVIDENTIARY OBJECTIONS: 

Defendant’s evidentiary objections to the declaration of Mehdi Touhidi are OVERRULED with the exception of Objection No. 5. 

Touhidi states that current court costs are $503 in this matter but provides no basis for this conclusion. While Touhidi’s conclusion with respect to the outstanding balance is based on the credit card statements submitted and Touhidi’s experience as American Express’ custodian of records, his statement as to the court costs is unsupported. Accordingly, Defendant’s objection No. 5 is SUSTAINED in part as to the statement of court costs.  

ANALYSIS:  

I.                LEGAL STANDARD  

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot 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.) C.C.P.¿§ 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.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿ ¿ 

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. (C.C.P.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) 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 defendant has met that burden, the burden shifts to the plaintiff 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.)¿  

II.              MERITS 

The Court notes that American Express’ motion improperly identifies the causes of action in their Complaint. The notice of motion identifies causes of action for (1) Open Book Account and (2) Account Stated. Upon review the Complaint in this matter contains a single cause of action for Common Count. Accordingly, the Court will consider the merits of American Express’ motion as they apply to a cause of action for Common Count. 

The required elements of a Common Count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, [citation and quotation marks omitted].) Rather than “a specific cause of action,” a common count “is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness” often “used as an alternative way of seeking the same recovery demanded in a specific cause of action.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) 

American Express states that on August 19, 2004, Defendant opened an American Express Platinum Card with a current account number ending in 6001. (Touhidi Decl. Exh. B.) American Express further states that this card was governed by the Cardmember Agreement, which was presented to Defendant at the time he received the card. (Touhidi Decl., Exh. A p. 3.) American Express states that Defendant accepted the terms of the Cardmember Agreement by virtue of his keeping and using the card. (Touhidi Decl. Exh. C.) American Express has presented evidence, through the form of credit card statements, that Defendant failed to make the required monthly payments on the account. (Touhidi Decl. Exh. C.) According to American Express’ statements, Defendant’s last payment on the account occurred July 9, 2022. (Touhidi Decl. Exh. D.) American Express states that Defendant had a 60-day window in which to dispute any charges present in American Express’ accounting but did not do so. (Touhidi Decl. ¶ 4, Exh. A p. 9.) American Express indicates through these credit card statements that the current balance on the account due and owing is $73,934.56. (Touhidi Decl. Exh. B.) 

Defendant opposes the motion, arguing several disputed facts exist which preclude summary judgment. Defendant argues that he did not open an American Express Platinum Card on August 19, 2004. Defendant presents no evidence in support of this contention, instead stating in his declaration that he opened an American Express card in 2002. (Imoisili Decl. ¶ 4.) Defendant attaches as Exhibit A to his declaration a photocopy of an American Express card bearing his name, an account number ending in 4492, and a statement that Defendant has been a member since 2002. (Imoisili Decl. Exh. A.) Defendant states that, according to the best of his recollection, he was not issued a Platinum Card until 2012. (Imoisili Decl. ¶ 6.) Defendant presents no documentary evidence supporting his contention that he was issued a Platinum Card in 2012. Defendant argues the time of issuance is material because it affects the terms and conditions of his repayment and interest calculation. 

The Court finds Defendant has not provided adequate evidence to meet his burden. Defendant offers no evidence in contravention of that offered by American Express. Defendant’s Exhibit A appears to be an entirely unrelated card that has no bearing on the Platinum Card at issue in this case. Defendant presents no conflicting Cardmember Agreement upon which different repayment or interest rates could be calculated. Defendant’s declaration based upon his best recollection is insufficient to rebut the credit card statements for multiple years presented by American Express. 

Defendant’s remaining argument in opposition is that he was never personally served with process in this matter. The Court notes that Defendant filed his answer in this matter on June 29, 2023. Defendant’s filing of an answer constitutes a general appearance in the case. It has long been the rule in California that a party waives any objection to a court’s exercise of personal jurisdiction when the party makes a general appearance in the action. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.) If Defendant wished to contest the Court’s jurisdiction on the basis of never having been served with process, his remedy to do so was the filing of a motion to quash service of process pursuant to C.C.P. § 418.10. Defendant, having failed to move to quash the service of process and having subsequently appeared in the action, cannot now raise an objection to jurisdiction as a defense to this motion for summary judgment. Even if the matter was properly considered on this motion, Defendant has attached no evidence to rebut the proof of personal service filed with the Court on May 8, 2023. Defendant claims that he was in Texas at the time and could not have been personally served in California, but he attaches no documentary evidence that verifies this claim. 

III.            CONCLUSION 

In short, American Express has met its burden to show no triable issue of fact exists as to Defendant’s indebtedness for consideration and his subsequent nonpayment. American Express has produced years of credit card statements documenting the balance it claims is owed. Defendant has produced no evidence which refutes these statements. Accordingly, the motion for summary judgment is GRANTED. 

Judgment is granted for American Express against Defendant in the amount of $73,934.56. The Court declines to incorporate American Express’ request that the judgment include $1,003.00 in costs. The Cardmember Agreement contains an explicit provision that Defendant agreed to pay all reasonable costs, including attorney’s fees, incurred in collection efforts. (Touhidi Decl. Exh. A p. 7.) However, American Express submits no declaration or documentary evidence which speaks to the amount of costs incurred. 

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RULING: 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Court’s records.  

ORDER  

American Express National Bank’s Motion for Summary Judgment came on regularly for hearing on January 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED.

JUDGMENT IS ENTERED IN THE AMOUNT OF $ 73,934.56.

UNLESS ALL PARTIES WAIVE NOTICE, AMERICAN EXPRESS TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  January 12, 2024                            _______________________________ 

                                                                        YOLANDA OROZCO, Judge 

Superior Court of California 

County of Los Angeles