Judge Gary I. Micon, Case Number: 23CHCV00539, Date: 2024-07-16 Tentative Ruling

Judge: Gary I. Micon, Case: 23CHCV00539, Date: 2024-07-16 Tentative Ruling

Case Number: 23CHCV00539 Hearing Date: July 16, 2024 Dept: F43

Dept. F43

Date: 7-16-24

Case #23CHCV00539, American Express National Bank vs. Anahit Khrimian, et al.

Trial Date: 11-4-24

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 27, 2023. Plaintiff alleged a cause of action of Common Counts for an open book account and an account stated against Defendants Anahit Khrimian and St. Jacob Hospice, Inc. (Defendants).

This is a credit card collections case wherein Defendants opened an American Express credit card on June 25, 2015. (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.) Pursuant to the cardmember agreement and the most recent billing statement, a balance of $150,397.63 is now due on the account. (UMF 11; Touhidi Decl., Ex. B.) Based on the amount due on the account, Plaintiff moves for summary judgment on its complaint for an open book account and an account stated.

Plaintiff filed its motion for summary judgment on January 3, 2024. 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 account to Defendants and there are no unresolved disputes on the account.

“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, and Defendants did not dispute the balance on the statements.

In this case, there is a cardmember agreement between Plaintiff and Defendants. (UMF 14.) The cardmember agreement indicated that Defendants were required to make regular monthly payments on the account. (UMF 18.) Each month, Plaintiff mailed an account statement to Defendants at the address that Defendants provided to Plaintiff, and the account statement accurately reflected the amount that Defendants owed on the account. (UMF 20.) Finally, the account is considered to be truly stated because there are no unresolved disputes on the account. (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 is a book account 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’ account in the form of billing statements that were stored on its internal network. (UMF 8.) 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), and Defendants had 60 days to submit a dispute for any charges (UMF 9). There are no unresolved disputes on Defendants’ account (UMF 10.) Because there are no disputes, this means that an open book account has been established.

The evidence is undisputed that a book account was 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.

CONCLUSION

The motion for summary judgment is granted in its entirety. Damages are to be awarded in the amount of $150,397.63, and costs are to be requested via a memorandum of costs. Plaintiff is ordered to submit a proposed judgment.

Moving party to give notice.