Judge: Helen Zukin, Case: 21SMCV01863, Date: 2022-08-04 Tentative Ruling
Case Number: 21SMCV01863 Hearing Date: August 4, 2022 Dept: 207
Background
This is a credit card collection action stemming from an
American Express credit card account Plaintiff American Express National Bank
(“Plaintiff”) issued to Defendants Greg St Johns and Spinning Wheel
Productions, Inc. Plaintiff filed its Complaint in this action on November 29,
2021, alleging one cause of action for common counts for an open book account
and account stated. Defendant Greg St Johns (“Defendant”) filed an Answer on
February 10, 2022. Plaintiff moves for summary judgment, or, in the alternative,
summary adjudication of its claims against Defendant.
Plaintiff’s motion is unopposed.
Summary Judgment Standard
Motions for summary judgment are governed by Code Civ. Proc. §
437c, which allows a party to “move for summary judgment in an action or
proceeding 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)(1).) 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.) 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.) “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.) 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.)
As to each claim as framed by the complaint, a plaintiff moving
for summary judgment must satisfy the initial burden of proof by establishing “each
element of the cause of action entitling the party to judgment on the cause of
action.” (C.C.P. § 437c(p)(1).) Once the plaintiff has met this burden, the
burden shifts to the defendant to show a triable issue of one or more material
facts exists as to the cause of action or a defense thereto. (C.C.P. §
437c(p)(1).) 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.)
Summary Adjudication Standard
A party may move for summary adjudication as to one or more
causes of action, affirmative defenses, claims for damages, or issues of duty
if the party contends there is no merit to the cause of action, defense, or
claim for damages, or if the party contends there is no duty owed. (See CCP
§437c(f)(1).) “A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.” (Ibid.) A party
moving for summary adjudication bears the burden of persuasion that there are
no triable issues of material facts. Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.
In analyzing motions for summary
adjudication, the court must “view the evidence in the light most favorable to
the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party”).) A motion for
summary adjudication must be denied where the moving party's evidence does not
prove all material facts, even in the absence of any opposition (Leyva v.
Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v.
Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
Analysis
“A common count is not a specific
cause of action ...; rather, it is a simplified form of pleading normally used
to aver the existence of various forms of monetary indebtedness.” (Professional
Collection Consultants v. Lujan¿(2018) 23 Cal.App.5th 685, 690.) The essential
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.]) Plaintiff has asserted common
count claims for account stated and an open book account. The Court will
discuss each in turn.
1. Account Stated
“An account
stated is an agreement, based on prior transactions between the parties, that
the items of an account are true and that the balance struck is due and owing.
[Citation.] To be an account stated, ‘it must appear that at the time of the
statement an indebtedness from one party to the 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.’ [Citation.]” (Leighton v. Forster
(2017) 8 Cal.App.5th 467, 491 [brackets in original, quoting (Maggio, Inc.
v. Neal (1987) 196 Cal.App.3d 745, 752–753].)
Plaintiff has offered evidence
establishing the elements of its claim. Defendant opened an American Express
Business Platinum Card Account on July 16, 2003. (UMF No. 13.) Defendant agreed
to be bound by the terms and conditions of the Cardmember Agreement which
governs the parties’ relationship. (UMF Nos. 14, 16.) Defendant used the credit
card and was obligated to repay Plaintiff for all charges and advances made
with the card. (UMF Nos. 17-18.) Defendant failed to make the required monthly
payments on his account, and currently $39,229.17 is currently due on the
account. (UMF Nos. 19, 23.) Defendant has not disputed this accounting. (UMF
Nos. 21-22.)
Having reviewed the evidence
submitted by Plaintiff, the Court finds Plaintiff has met its burden of proof under
Code Civ. Proc. § 437c(p)(1) (1) to establish “each element of the cause of
action entitling the party to judgment on the cause of action.” The burden has
thus been shifted to Defendant to demonstrate a triable issue of material facts
exists as to any element. Defendant here has filed no opposition and thus has
failed to meet this burden. Accordingly, Defendant is entitled to summary
adjudication on its claim for account stated.
2. Open Book Account
“A ‘book account’ is ‘a detailed
statement which constitutes the principal record of one or more transactions
between a debtor and a creditor arising out of a contract or some fiduciary
relation, and shows the debits and credits in connection therewith ….’” (Professional
Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 969 [quoting
C.C.P. § 337a] (“Lauron”).) “A book account is ‘open’ where a balance
remains due on the account.” (Id.) A book account may furnish the basis
for an action on a common count “when it contains a statement of the debits and
credits of the transactions involved completely enough to supply evidence from
which it can be reasonably determined what amount is due to the claimant.” (Interstate
Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174
Cal.App.3d 700, 708.) “Examples of statements
held to be book accounts include a law firm’s billing statements reflecting
work performed on an hourly basis [citation] and a ledger sheet recording
amounts due for hay deliveries [citation].” (Lauron, 8 Cal.App.5th at 969.)
In edition to the evidence
discussed above, Plaintiff has shown it maintained an accounting of all credits
and debits on Defendant’s account in the form of billing statements generated
and stored on Plaintiff’s internal computer network with copies sent to
Defendant. (UMF No. 8.) These statements indicate the rolling balance of the
account based on the charges and payments made by Defendant. (Touhidi Decl. at
¶¶12-13, Exs. C, D.) Plaintiff has also shown there is an unpaid balance of
$39,229.17 owing on Defendant’s account. (Id. at ¶15; UMF No. 11.)
The Court finds Plaintiff has met
its burden of proof under Code Civ. Proc. § 437c(p)(1) to establish an open
book account. The burden has thus been shifted to Defendant to demonstrate a
triable issue of material facts exists as to Plaintiff’s claim for an open book
account. As above, Defendant has submitted no opposition to Plaintiff’s motion
and thus cannot carry its burden under section 437c(p)(1). Accordingly, Plaintiff
is entitled to summary adjudication on its claim for an open book account.
As the Court finds no triable
issue of material fact has been established as to any of Plaintiff’s claims
against Defendant, the Court GRANTS Plaintiff’s motion for summary judgment on
its Complaint against Defendant. The Court notes the declaration submitted by
Plaintiff states Plaintiff has incurred court costs to date in the amount of
$503.00. Plaintiff may seek to recover these costs by filling a memorandum of
costs as required by California Rules of Court rules 3.1700 and 3.1702.
Conclusion
Plaintiff’s motion for summary judgment as to Defendant Greg
St Johns is GRANTED.