Judge Katherine Chilton, Case 22STLC01520 2022-08-19 Tentative Ruling

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PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On March 8, 2022, Plaintiff UBS Bank USA filed a complaint against Defendant Corey Collins for (1) breach of contract, (2) account stated, and (3) unjust enrichment. Defendant filed an answer on April 12, 2022.

On April 28, 2022, Plaintiff filed a motion for summary judgment or, in the alternative, Summary Adjudication (“Motion”). On July 14, 2022, the Court continued the Motion to give Defendant an opportunity to retain legal representation and file an opposition. Defendant did so on July 27, 2022 and Plaintiff filed a reply on August 10, 2022.

Even though Plaintiff filed its Motion prior to the 60-day time period set forth in CCP §437c(a)(1), the Court exercises its jurisdiction to hear the Motion now. (Sadlier vv. Superior Court (1986) 184 Cal. App. 3d 1050, 1053-54).

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Id., § 437c(p)(1).) The Plaintiff/Cross-Complainant is not required to disprove any affirmative defenses to discharge this burden. (Code Civ. Proc., § 437c(p)(1); Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564.) The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c(p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. “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.” (Code Civ. Proc., § 437c(f)(1).)

As a general rule, in reviewing the evidence presented on summary judgment, the moving party’s evidence is strictly construed and the opposing party’s evidence is liberally construed. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832; Brantley v. Pisaro (1996) 42 Cal.App.4th 1591.) The court is to consider all evidence submitted by the parties, direct and circumstantial, except that to which a proper objection has been sustained. (Code Civ. Proc., §437c(c).) The court must also consider all reasonable inferences drawn therefrom. (Id.) The court’s function on summary judgment is issue-finding, not issue-determination. (Weil & Brown, supra, 10:270-272.10.) The court is not to consider the weight or credibility of the evidence. It should only determine if a triable issue of material fact exists which requires the weighing procedures of trial. (Id.)

Defendant objects to the Declaration of Craig Darvin in Support of Plaintiff UBS Bank USA’s Motion by presenting objections to each paragraph of the Declaration and Exhibits A-C based on irrelevance (Cal. Evid. Code § 350), lack of foundation (Cal. Evid. Code §§ 403 and 405), lack of personal knowledge (Cal. Evid. Code § 702), and hearsay (Cal. Evid. Code § 1200.) Defendant’s Objections 1-21[1] are OVERRULED.

Plaintiff objects to the Declaration of Corey Collins on the basis of hearsay, lack of foundation, improper non-expert opinion, speculation, best evidence rule, and lack of authentication. The following objections are sustained: Nos. 1, 2, 3, 4, 5, 6, 7.

Plaintiff seeks a court order granting summary judgment in its favor and against Defendant on grounds that Plaintiff has established the elements of each of its claims against Defendant.

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “Indemnification is founded on express contractual provisions.” (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 481.)

As a preliminary matter, the Court notes that, as noted by Plaintiff, the agreement between the parties is governed by Utah law. Based on the authority provided by Plaintiff, Utah law is in accord with California law and requires proof of the same elements. (Bair v. Axiom Design, L.L.C. (Utah 2001) 20 P.3d 388, 392 (“The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages.”).) As such, whether Plaintiff has established each element of the breach of contract claim is the same under both California and Utah law.

Plaintiff has submitted a declaration from its deputy general counsel, Craig Darvin. According to Darvin, Defendant applied for a UBS Visa Signature credit card issued by Barclays Bank, which was approved by Barclays Bank in or around April 2007. (Darvin Decl., ¶ 5.) Darvin provides that Barclays Bank subsequently sold and/or assigned to Plaintiff a portfolio of UBS Visa Signature credit card accounts, including Defendant’s account, and that at or around the time Plaintiff acquired the credit card portfolio, Plaintiff sent to all UBS Visa Signature credit card account holders, including Defendant, new credit cards that were governed by the terms of the UBS Bank Cardmember Agreement. (Id., ¶¶ 6-7.) Darvin declares that the Cardmember Agreement provides that “[b]y signing, keeping, using or otherwise accepting your Card or Account, you agree to the terms and conditions of this Agreement.” (Id., ¶ 8.) Darvin states that the Cardmember Agreement also requires Defendant to make timely minimum monthly payments upon receiving a monthly invoice for credit advanced by Plaintiff to Defendant under the account and provides that the entire outstanding balance owed under the account is accelerated upon Defendant’s failure to make minimum monthly payments by the payment due date. (Id., ¶¶ 9-10.) According to Darvin, Plaintiff has advanced certain credit to Defendant under the account; that Defendant has failed to make the minimum monthly payments by the payment due date; and that there is an outstanding balance due and owing from Defendant in the amount of $20,480.86. (Id., ¶¶ 14-16.) Darvin states that, despite Plaintiff’s demand, Defendant has failed and refused to pay the outstanding account balance. (Id., ¶ 18.) Copies of the Cardmember Agreement and statement for the account are attached to Darvin’s declaration and confirm the terms of the Cardmember Agreement as set forth in Darvin’s declaration and the outstanding balance due on Defendant’s account. (Id., ¶¶ 7, 15, Exs. A, B.) The Cardmember Agreement further provides that Defendant authorizes Plaintiff to pay and charge Defendant’s account for all purchases, balance transfers, checks, and cash advanced made or obtained by Defendant and that Defendant agreed to pay Plaintiff for all of the purchases, balance transfers, checks, and cash advances assessed on the account. (Id., ¶ 7, Ex. A., Cardmember Agreement, pp. 2-3, Obligations on your account.)

Defendant argues that the evidence in support of Plaintiff’s motion is inadmissible because Plaintiff has not laid a proper foundation and the statements consist of hearsay. As noted above, the Court overruled Defendant’s objections to Plaintiff’s declaration.

Defendant further argues that Plaintiff should be required to follow an eleven-step foundation analysis to demonstrate that computer records are authentic, following a bankruptcy court standard that has not been adopted by civil courts in California. The Court declines to do so here.

Finally, Defendant contends that their testimony raises an issue of fact; to wit, they[i] claim they owe a different amount of money than what Plaintiff claims is owed and they did not agree to be charged the interest rate that Plaintiff is claiming. However, as noted above, the Court sustained Plaintiff’s objections to Defendant’s declaration. Moreover, although Defendant submitted evidence of payments to UBS between March 2020 and September 2020, Defendant has not submitted evidence of how those payments impacted their balance on the credit card (i.e., whether additional purchases were made that impacted the overall balance), or whether those payments constituted the minimum payment due. Defendant does not state what amount of money they believe they do owe to Plaintiff, but apparently does not disagree that they owe Plaintiff money.

Defendant further denies that they agreed to any changes in interest rates but does not state what interest rate they did agree to or what agreement they entered into with Plaintiff in connection with any credit card. Defendant has not submitted evidence of what agreement is at issue here. Accordingly, the Court finds that Defendant has failed to raise a genuine issue of material fact with regard to the breach of contract cause of action.

The Court finds that Plaintiff’s evidence is sufficient to establish the existence of an agreement between the parties whereby Plaintiff agreed to advance credit in exchange for Defendant’s agreement to make payments due on the account, Plaintiff’s performance in advancing credit, Defendant’s breach by failing to pay the amount due, and Plaintiff’s damages in the amount of $20,480.86 as a result of Defendant’s failure to pay the amount due. Plaintiff has thus met its burden and, accordingly, Plaintiff is entitled to judgment on the first cause of action for breach of contract.

“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; [and] (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; see CACI 373.) The elements for an account stated under Utah law is the same as under California law. (DeMentas v. Estate of Tallas (Utah Ct. App. 1988) 764 P.2d 628, 634 (“[T]he essential elements of an account stated include ‘previous transactions between the parties giving rise to an indebtedness from one to the other, an agreement between the parties as to the amount due and the correctness of that amount, and an express or implied promise by the debtor to pay the creditor the amount owing.”).)

According to Darvin, “[i]t is in the regular course of business to prepare all account statements for credit card accounts shortly after the statement period identified in the account statements and to preserve the records.” (Darvin Dec., ¶ 2.) The Cardmember Agreement attached to Darvin’s declaration confirms that a statement would be mailed or delivered to Defendant at the end of each monthly billing cycle. (Id., ¶ 7, Ex. A, Cardmember Agreement, p. 5, Monthly billing statements.) The Cardmember Agreement provides that, by using or otherwise accepting the card, Defendant agrees to the terms and conditions of the Cardmember Agreement and that Defendant authorizes Plaintiff to pay and charge Defendant’s account for all purchases, balance transfers, checks, and cash advanced made or obtained by Defendant and that Defendant agreed to pay Plaintiff for all of the purchases, balance transfers, checks, and cash advances assessed on the account. (Id., ¶ 7, Ex. A., Cardmember Agreement, p. 1, Using your account/acceptance of these terms; id., Ex. A, Cardmember Agreement, pp. 2-3, Obligations on your account.) The Cardmember Agreement provides that, in the event Defendant fails to make minimum monthly payments by the payment due date specified in the monthly invoices, the entire outstanding balance owed under the account is accelerated and is immediately due and payable in full. (Id., ¶¶ 7, 10, Ex. A, Cardmember Agreement, p. 9, Default/Collection Costs.) Darvin declares that Defendant has failed and refused to pay the outstanding account balance. (Id., ¶ 18.)

Plaintiff’s evidence is sufficient to establish that there were previous transactions between the parties such that they have a creditor-debtor relationship; that Defendant agreed to pay for the amounts due as set forth in the account statements; that, upon default, the outstanding amount due on the account is accelerated such that Defendant is liable to pay the outstanding balance immediately; and that Defendant has accepted the terms of the agreement, including the obligation to pay the outstanding balance upon default.

Defendant does not argue that Plaintiff has failed to prove its claim for account stated, but apparently relies on the same evidence that it contends raises a disputed issue of material fact for the breach of contract claim. As noted above, the Court sustained the objections to Defendant’s declaration. The Court finds that Defendant has failed to meet their burden of demonstrating triable issues of material fact exist as to this cause of action.

“An individual is required to make restitution if he or she is unjustly enriched at the expense of another.” (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.) “A person is enriched if the person receives a benefit at another’s expense.” (Id.) “Benefit means any type of advantage.” (Id.) Under Utah law, the elements of unjust enrichment are: (1) a benefit conferred by one person to the other, (2) the conferee must appreciate or have knowledge of the benefit, and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.” (Allen v. Hall (Utah 2006) 148 P.3d 939, 945.)

Here, Plaintiff’s evidence shows that Plaintiff advanced credit on Defendant’s behalf, that Defendant accepted the benefit conferred on him through his use of the credit card account and retention of the goods and services Defendant obtained as a result of Plaintiff’s extension of credit, and that Defendant has failed to repay Plaintiff for the credit advanced, despite an agreement to do so. (Darvin Decl., ¶¶ 8-10, 14, 15-18.) The Court finds that Plaintiff has established that, under these circumstances, it would be unjust for Defendant to retain the benefits conferred by Plaintiff without repayment for such benefits. Plaintiff has thus met its burden as to this cause of action.

Again, Defendant has not argued in their opposition that Plaintiff has failed to meet its burden of proof as to this cause of action, nor has Defendant met their burden of demonstrating triable issues of material fact exist as to the unjust enrichment cause of action.

Therefore, Plaintiff is entitled to summary judgment as to this cause of action.

Plaintiff contends that there are no triable issues as to Plaintiff’s entitlement to attorney’s fees and costs. The Court finds that whether Plaintiff is entitled to attorney’s fees and costs in this action is not a proper subject for this motion for summary judgment. Rather, this is more appropriately brought on a motion for attorney’s fees and costs. The Court thus declines to address whether Plaintiff is entitled to attorney’s fees and costs at this time.

For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED.

[1] The Court notes that Objection No. 5 refers to the incorrect paragraph and lines of Declaration of Craig Darvin. However, the Court considers the language of the Declaration cited by Defendant in the Objection and overrules Objection No. 5.

[i] The Court notes that Defendant is referred to as “he” and “she” in the opposition so will use a gender neutral pronoun hereinafter.