Judge: Gary I. Micon, Case: 23CHCV00352, Date: 2024-07-29 Tentative Ruling
Case Number: 23CHCV00352 Hearing Date: July 29, 2024 Dept: F43
Dept.
F43
Date:
7-29-24
Case
# 23CHCV00352,
American Express National Bank vs. Dan Ellis, et al.
Trial
Date: 9-23-24
MOTION FOR SUMMARY JUDGMENT
MOVING
PARTY: Plaintiff American Express National Bank
RESPONDING
PARTY: No response has been filed.
RELIEF
REQUESTED
Motion
for Summary Judgment
RULING: Motion is granted.
SUMMARY
OF ACTION
Plaintiff
American Express National Bank (Plaintiff) filed this action on February 7,
2023. Plaintiff alleged three causes of action for Common Counts against Defendants
Dan Ellis, aka Danny Duane Ellis, and Background Images, Inc. (Defendants).
This
is a credit card collections case wherein Defendants opened an American Express
credit card in July 2008. (UMF 1.) In using the card, Defendants were bound by
the terms of the cardmember agreement. (UMF 2-4.) Defendants used the card to
pay for goods and services. (UMF 5.) Plaintiff maintained an open book account
for the card in the form of billing statements. (UMF 8.) There are no
unresolved disputes on the account and the account is truly stated. (UMF 9.) Pursuant
to the cardmember agreement and the most recent billing statement, a balance of
$73,030.90 is now due on the account. (UMF 11; Custodian Decl. 1, Ex. A.) Based
on the amount due on the account, Plaintiff moves for summary judgment on its
complaint for Count 1.
In
April 2005, Defendants had opened another American Express credit card account.
(UMF 12.) This one has similar terms to the other account. (UMF 13-15.)
Defendants used it to buy goods and services. (UMF 16.) Plaintiff maintained an
open book account for the card in the form of billing statements. (UMF 19.) There
are no unresolved disputes on the account and the account is truly stated. (UMF
21.) Pursuant to the cardmember agreement and the most recent billing
statement, a balance of $32,895.09 is now due on the account. (UMF 22;
Custodian Decl. 2, Ex. A.) Based on the amount due on the account, Plaintiffs
moves for summary judgment on its complaint for Count 2.
Plaintiff
filed its motion for summary judgment on February 20, 2024. Defendant requests
that the Court grant summary judgment in the total amount of $105,925.99 for
both accounts. No opposition has been filed.
ANALYSIS
The
purpose of a motion for summary judgment “is to provide courts with a mechanism
to cut through the parties’ pleadings in order to determine whether, despite
their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “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.)
The pleadings frame the issues for motions, “since it is those
allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App.
4th 635, 640-641; FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon
Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.)
“On a motion for summary judgment, the initial burden is always on the moving
party to make a prima facie showing that there are no triable issues of
material fact.” (Scalf v. D.B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary
judgment “has met his or her burden of showing that a cause of action has no
merit if the party has shown that one or more elements of the cause of action .
. . cannot be established.” (CCP §
437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.)
Account
Stated
Plaintiff argues that summary judgment should be
granted in its favor on the Account Stated cause of action because Plaintiff
issued and submitted monthly billing statements on the accounts to Defendants
and there are no unresolved disputes on the accounts.
“An account stated is an agreement, based on prior
transactions between the parties, that all items of the account are true and
that the balance struck is due and owing from one party to the other.” (Trafton
v. Youngblood (1968) 68 Cal.2d 17, 25.) In order to establish an account
stated, “[i]t must appear that at the time of the statement an indebtedness
from one party to other existed, that a balance was then struck and agreed to
be the correct sum owing from the debtor to the creditor, and that the debtor
expressly or impliedly promised to pay to the creditor the amount thus
determined to be owing.” (H. Russell Taylor’s Fire Protection Service, Inc.
v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 726-727.)
Assent may be expressly given or implied by the
circumstances or the conduct of the debtor including failing to object. (Trafton,
supra, 68 Cal.2d at 25.) In addition, partial payment of a debt without
objection and without otherwise indicating non-recognition of the validity of
the debt is proof of the validity of the debt. (Price v. Wells Fargo Bank
(1989) 213 Cal.App.3d 465, 480.) Thus, if a statement is rendered and the
debtor fails to object or reply within a reasonable time, the law implies an
agreement that the account is correct as rendered. (Maggio Inc. v. Neal
(1987) 196 Cal.App.3d at 752-753.) Plaintiff argues that it can establish an
account stated because it mailed billing statements to Defendants every month
for the two credit cards, and Defendants did not dispute the balance on the
statements.
In this case, there are cardmember agreements between
Plaintiff and Defendants. (UMF 2, 14.) The cardmember agreements indicated that
Defendants were required to make regular monthly payments on the account. (UMF 6,
17.) Each month, Plaintiff mailed an account statement to Defendants at the
address that Defendants provided to Plaintiff, and the account statements
accurately reflected the amount that Defendants owed on the accounts. (UMF 8,
19.) Finally, the accounts are considered to be truly stated because there are
no unresolved disputes on the accounts. (UMF 22; see Maggio Inc., supra,
196 Cal.App.3d at 752-753 (finding that the law implies an agreement that an
account is truly stated when there are no outstanding disputes on the
account).)
Based on the foregoing and the evidence submitted by
Plaintiff, Plaintiff has adequately stated a claim for an account stated, and
there are no triable issues of material fact for this cause of action. Therefore,
Plaintiff prevails as a matter of law on Plaintiff’s claim for account stated.
Plaintiff’s motion is granted for this claim.
Open Book Account
Plaintiff argues that summary judgment should be
granted in its favor on the Open Book Account cause of action because there are
book accounts as evidenced by detailed statements kept by Plaintiff.
CCP § 337a(a) defines a book account as “a detailed
statement which constitutes the principal record of one or more transactions
between a debtor and creditor arising out of a contract ...and show the debits
and credits in connection therewith, and against whom and in favor of whom
entries are made, is entered in the regular course of business as conducted by
such creditor ..., and is kept in a reasonably permanent form and manner and is
(1) in a bound book, or (2) on a sheet or sheets fastened in a book or to a
backing but detachable therefrom, or (3) on a card or cards of a permanent
character, or is kept in any other reasonably permanent form and manner.”
The California Supreme Court has explained it as
follows: a “book account is a detailed statement of debit/credit transactions
kept by a creditor in the regular course of business, and in a reasonably
permanent manner.” (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579,
fn. 5.)
Courts construe CCP § 337a broadly and have adopted a
liberal approach in defining the term “book account.” (Costerisan v. DeLong (1967)
251 Cal.App.2d 768, 770-771 (“Adverting to the broad language of section 337a
of the Code of Civil Procedure, ‘kept in any other reasonably permanent form
and manner,’ it seems manifest that the Legislature intended to adopt the
liberal approach…in defining the term ‘book account.’”).) In Costerisan v.
DeLong, the Court of Appeal found that ledger sheets kept in an office file
cabinet constituted a “book account” under CCP § 337a. (Id. at 771.) In that
case, the Court of Appeal held that the critical determination was whether the
sheets were “permanent records and constitute[d] a system of bookkeeping as
distinguished from mere private memoranda.” (Id. at 770; see also Fresno
Credit Bureau v. Batteate (1951) 102 Cal.App.2d 545, 547-548 (holding that
one ledger entry was sufficient to support a judgment based on an open book
account).)
Plaintiff’s business records are computerized, and
Plaintiff maintained an account of all the credits and debits on Defendants’
accounts in the form of billing statements that were stored on its internal
network. (UMF 8, 19.) These billing statements constituted an electronic book
account that was created and maintained on Plaintiff’s secure network. (See Costerisan,
supra, 251 Cal.App.2d at 770-771.)
Every month Plaintiff mailed billing statements to
Defendants (UMF 8, 19), and Defendants had 60 days to submit a dispute for any
charges (UMF 9, 20). There are no unresolved disputes on Defendants’ accounts.
(UMF 10, 21.) Because there are no disputes, this means that open book accounts
have been established.
The evidence is undisputed that book accounts were
established between Plaintiff and Defendants. Accordingly, there are no triable
issues of material fact, and Defendants are liable as a matter of law for the
open book account under Plaintiff’s complaint. Plaintiff’s motion is granted
for this claim.
Common
Counts: Quantum Meruit
Plaintiff argues that Plaintiff is entitled to
summary judgment for common counts: quantum meruit as a matter of law.
Quantum meruit is governed by principles of equity.
It may be applied whenever one person has received money which belongs to
another, and this money in equity and good conscience should be returned. (Mains
v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586.)
Defendants requested that Plaintiff issue credit cards
for Defendant’s benefit, and accounts were opened. Plaintiff issued the
American Express credit cards and allowed Defendant to make purchases with the
cards. Defendant has failed to pay back the reasonable value of the services
provided by American Express that Defendant incurred when using the cards.
Accordingly, there are no triable issues of fact, and
Defendants are liable for common counts: quantum meruit under Plaintiff’s
complaint. Plaintiff’s motion is granted for this claim.
CONCLUSION
The motion for summary judgment is granted in its
entirety. Damages are to be awarded in the total amount of $105,925.99 for the
outstanding balances on both accounts, and costs are to be requested via a
memorandum of costs. Plaintiff is ordered to submit a proposed judgment.
Moving
party to give notice.