Judge John J. Kralik, Case Number: 23BBCV01574, Date: 2024-09-06 Tentative Ruling

Plaintiff Forwardline Financial, LLC (“Plaintiff”) alleges that within the past 4 years of filing the action, Defendants Francisco Torres, an individual and sole proprietor of Camarillo Discount Center; Frank Torres, Inc.; and Francisco Torres, an individual (collectively, “Defendants”) became indebted to Plaintiff on the debt in the amount of $113,054.50 for a balance due on an open book account for services rendered by Plaintiff to Defendants. Plaintiff alleges that the debt has not been paid and that the debt, including interest at a rate of 10% per annum since the due date of December 21, 20223, is now due and owing.

Plaintiff also alleges that on November 7, 2022, Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet, received a loan from Plaintiff pursuant to a Loan and Security Agreement in the amount of $45,576.09, but Defendant failed to fulfill its obligations and breached the agreement such that $55,127.16 is due and owing. (Compl., ¶¶26-30.) Plaintiff alleges that on November 23, 2022, Frank Torres, Inc. received a loan from Plaintiff pursuant to a Loan and Security Agreement in the amount of $44,611.14, but Defendant failed to fulfill its obligations and breached the agreement such that $57,927.34 is due and owing. (Id., ¶¶26-30.) Plaintiff also alleges that on November 7, 2022, Francisco Torres executed a Personal Guarantee whereby if Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet, defaulted on the loan, Francisco Torres would be personally responsible to Plaintiff and the outstanding debt amount is $113,054.50. (Compl., ¶¶33-39.)

The complaint, filed July 12, 2023, alleges causes of action for: (1) open book account against all Defendants; (2) account stated against all Defendants; (3) reasonable value against all Defendants; (4) money lent against all Defendants; (5) breach of written contract against Francisco Torres, an individual and sole proprietor of Camarillo Discount Center; (6) breach of written contract against Frank Torres, Inc.; and (7) breach of written guarantee against Francisco Torres, an individual.

On March 29, 2024, Plaintiff filed a motion for summary judgment against Defendants.

Plaintiff moves for summary judgment on the complaint against Defendants. The notice of the motion seeks only summary judgment, though the memorandum of points and authorities includes law regarding summary judgment and summary adjudication, and the separate statement is separated into four “Issues.” As the notice of motion only includes a request for summary judgment, the Court will treat this motion as a motion for summary judgment and not as a motion for summary adjudication in the alternative.

The 1^st cause of action is for 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. Lujan (2018) 23 Cal.App.5th 685, 690–691.) “The creditor must keep these records in the regular course of its business and ‘in a reasonably permanent form,’ such as a book or card file. (Code Civ. Proc., § 337a.) ‘A book account is “open” where a balance remains due on the account.’” (Id. at 691.) The elements of a cause of action in common count includes: (1) the statement of indebtedness in a certain sum; (2) the consideration, i.e., goods sold, work done, money loaned; and (3) nonpayment. (Allen v. Powell (1967) 248 Cal.App.2d 502, 510.)

The 2^nd cause of action is for account stated. “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

The 3^rd cause of action is for reasonable value. “To recover on a claim for the reasonable value of services under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)

The 4^th cause of action is for money lent. “A claim for “money lent” is one of the common counts.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809.) “A common count claim broadly applies ‘wherever one person has received money which belongs to another, and which in “equity and good conscience,” or in other words, in justice and right, should be returned.’ [Citation.] The claim does not require privity of contract. Although the plaintiff's right to recover under a common count is based on equitable principles, the claim is legal in nature. [Citation.]” (Id.)

Plaintiff provides the following facts in support of the motion. Plaintiff and Defendant Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet, entered into an open book account arising out of a contract. (Fact 1.) Plaintiff kept an account of the debits and credits involved in the transactions, recorded in a permanent form, which was not objected to. (Fact 2.) Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet, owes Plaintiff money on the account in the amount of $113,054.50, plus costs and attorney’s fees. (Fact 3-4.) In opposition, Defendants dispute Facts 1-4, arguing that Plaintiff and Frank Torres, Inc. had an open book account, it objected to the account, and it does not owe money on the account.[1]

For “Issue 1,” Plaintiff relies largely on Exhibits 1 and 2 of the declaration of Jon Blanda, which include Plaintiff’s RFA requests and Francisco Torres’ RFA responses. Torres admitted that on November 23, 2022, he executed a personal guaranty with Plaintiff for an underlying agreement with a loan amount of $44,611.14. (Blanda Exs. 1-2 [RFA Nos. 1-2].) Torres admitted that Frank Torres, Inc. received the loan amount, Plaintiff made a demand on Torres to make payment on January 8, 2023, and Torres did not make payments following January 8, 2023. (RFA Nos. 5, 10, 11.) Torres admits to the authenticity of the Loan and Security Agreement entered between Frank Torres Inc. and Plaintiff, the Account Statement with Frank Torres Inc., and the January 8, 2023 letter Torres received from Plaintiff. (RFA Nos. 14-16 at Exs. 1-3.)

The exhibits attached to the RFA requests refer to “Frank Torres, Inc.” and do not refer to “Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet.” As such, Plaintiff has not established its initial burden showing that “Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet” had an open book account with Plaintiff. It is Plaintiff’s burden to follow the rules under CCP § 437c when bringing a motion for summary judgment, including providing a separate statement that plainly and concisely provides all material facts that it contends are undisputed followed with references to supporting evidence. (CCP § 437c(b)(1).) CCP § 437c is a complicated statute and there is little flexibility in the procedural imperatives of the section and, as a result, section 437c is unforgiving. (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950.) A failure to comply with any one of its myriad requirements is likely to be fatal to the offending party. (Id.) The success or failure of the motion must be determined by application of the required step-by-step evaluation of the moving and opposing papers. (Id.) Because of the drastic nature of the remedy sought, the moving party is held to strict compliance with the procedural requisites. (Id.) Here, Plaintiff has not supported its Facts 1-4 with evidence regarding Camarillo Discount Outlet; rather, the evidence references Frank Torres, Inc. Thus, as pointed out by Defendants in their opposition separate statement, there are disputed material facts regarding Facts 1-4. This is a ground to deny the motion in its entirety. (As noted above, Plaintiff only moved for summary judgment and did not move for summary adjudication.)

For “Issue 2,” Plaintiff also provides the following facts: Plaintiff and Defendant Frank Torres, Inc. entered into an open book account arising out of a contract. (Fact 5.) Plaintiff kept an account of the debits and credits involved in the transactions, recorded in a permanent form, which was not objected to. (Fact 6.) Frank Torres, Inc. owes Plaintiff money on the account in the amount of $113,054.50, plus costs and attorney’s fees. (Fact 7-8.) Facts 5-8 rely on Mr. Blanda’s Exhibits 1 and 2, similar to the above. In contrast to Facts 1-4, Defendant does not dispute Facts 5-8, as they refer to Frank Torres, Inc. However, Defendant’s lack of dispute as to Facts 5-8 is not sufficient for the motion for summary judgment to be granted as to the entirety of the complaint. The 1^st to 4^th causes of action are alleged against all Defendants and Plaintiff has not established that it is entitled to summary judgment on the 1^st to 4^th causes of action as to all Defendants. As such, the motion for summary judgment is denied in its entirety.

[1] The Court notes that the “material facts” presented by Plaintiff in its separate statement are sparse. Plaintiff’s separate statement refers to “Defendant” generally without specification (which the Court assumes Defendants mean “Defendant Francisco Torres, individually and as sole proprietor of Camarillo Discount Outlet” for the purposes of Facts 1-4). The facts are also mere iterations of the elements of the claim without specificity. For example, with respect to the breach of contract claims, Plaintiff’s facts include: (10) and (14) “Plaintiff performance or excuse for nonperformance”; (11) and (15) include “Defendant’s Breach”; and (12) and (16) include “Due to Defendant’s breach, Plaintiff suffered damages as a result.” However, these facts lack actual supporting facts regarding how Plaintiff performed or was excused from nonperformance, how Defendant (general) breached (which agreement?), and how Plaintiff suffered damages (in what amount?). While Plaintiff cites to some evidence, the citations are to whole exhibits without specification of pages, discovery request numbers, etc. (e.g., Fact references Exhibits 1-2 of the Blanda Declaration and Exhibits 1-7 to the Adams Declaration without specification).

Superior Court of California

County of Los Angeles

Department B