Judge: Frank M. Tavelman, Case: 23BBCV01494, Date: 2024-04-05 Tentative Ruling

Case Number: 23BBCV01494    Hearing Date: April 5, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR SUMMARY JUDGMENT

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 Artem Sargsyan (Defendant). American Express alleges Defendant maintained a credit card with them for a number of years but stopped monthly required payments in 2023. American Express seeks to recover the outstanding balance on the account, which is $309,410.32.

American Express now moves for summary judgment of its Complaint. Defendant has rendered no opposition to the motion.  

ANALYSIS: 

I.                    LEGAL STANDARD 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. § 437c(a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord C.C.P. § 437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangsterv. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Where the plaintiff is the moving party, the plaintiff’s burden of proof on such a motion is defined by C.C.P. § 437c(p)(1); the plaintiff must prove each element of the cause of action entitling the party to judgment on that cause of action. (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

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 in November of 2022, Defendant opened an American Express Credit Card with a current account number ending in 1008. (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 10, 2023. (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. ¶ 14, Exh. A p. 9.) American Express indicates through these credit card statements that the current balance on the account due and owing is $309,410.32. (Touhidi Decl. Exh. B.)

Even if unopposed, the moving party may still be denied summary judgment unless their papers clearly establish that there is no triable issue of fact, and they are entitled to judgment. (Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613.) Here, the Court finds that American Express has satisfied its initial burden that no triable issue of material fact exists as to the Common Count claim. As such, the burden shifts to Defendant to show a triable issue of fact exists. Defendant, by virtue of his failure to oppose the motion, has not shown a triable issue of fact.

Accordingly, the motion for summary judgment is granted. Judgment is granted for American Express against Defendant in the amount of $309,410.32. The Court will incorporate American Express’ request that the judgment include $503 in costs. (See Touhidi Decl. ¶ 15.) 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. 6.) The Court finds that $503 in costs are reasonable for a lawsuit of this nature.   

--- 

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 April 5, 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 $309,410.32 PLUS $503.00 IN COSTS.

AMERICAN EXPRESS TO FILE A JUDGMENT CONSISTENT WITH THIS RULING WITHIN THE TIME REQUIREMENTS IN THE RULES OF COURT.

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

IT IS SO ORDERED. 

DATE:  April 5, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles