Judge: Lee W. Tsao, Case: 23NWCV00082, Date: 2023-11-16 Tentative Ruling

Case Number: 23NWCV00082    Hearing Date: March 21, 2024    Dept: C

CALTEX PLASTICS v. TZVI ODZER

CASE NO.:  23NWCV00082

HEARING:  03/21/24

#7

Plaintiff CALTEX PLASTICS, INC’s Motion for Summary Judgment is GRANTED. The Alternative Motion for Summary Adjudication is rendered MOOT.

Moving Party to give Notice.

No Opposition filed as of March 18, 2024. Due by March 7, 2024. (CCP §437c(b)(2).)

This collections action was filed by Plaintiff CALTEX PLASTICS INC. (“Plaintiff”) on January 10, 2023.

The relevant facts, as alleged, are as follows: “Defendants became indebted to plaintiff Caltex Plastics in the amount of $126,406.89 as of July 28, 2022. [¶] On September 19, 2022 in Los Angeles, California, an account was stated in writing by and between plaintiff and defendants and on such statement a balance of $89,738.25 was found due to plaintiff from defendants. Defendants agreed to pay interest on unpaid balances at the rate of 1.5% per month and agreed to pay any costs for legal action to pursue collection.” (Complaint ¶¶9-10.) “Although demanded by plaintiff from defendant, not all of the agreed balance has been paid except for partial payments leaving an unpaid balance due and owing of $53,197.99.” (Complaint ¶11.)

Plaintiff’s Complaint asserts the following causes of action:

(1) Account Stated;

(2) Open Book Account;

(3) Goods Sold and Delivered at Agreed Price; and

(4) Reasonable Value of Goods Sold and Delivered

Plaintiff now moves for summary judgment as to all causes of action against Defendants L&M FOOD SERVICES, INC. and TZVI ODZER (collectively “Defendants”), relying upon the facts deemed admitted on November 16, 2023. (SS Nos. 3-58.)

As stated above, no Opposition has been filed as of March 18, 2024.

An account stated is an agreement between parties that a certain sum shall be paid and accepted in discharge of an obligation. (R.E. Tharp, Inc. v. Miller Hay Co. (1968) 261 Cal.App.2d 81, 84.) 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.” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 491.)

The following elements establish the existence of a book account: (1) detailed statement that is the principal record of one or more transactions between the debtor and creditor; (2) arises out of a contract or fiduciary duty; (3) shows the debts and credits against whom and in favor of whom; (4) is entered in the regular course of business; (6) is kept in a reasonably permanent form or manner; and (7) is on a sheet of sheets fastened in a book or is kept in any other reasonably permanent form and manner. (CCP §337a.) To state a cause of action for an open book account, Plaintiff must establish: “(1) the statement of indebtedness in a certain sum, (2) the consideration… and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) “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. [Citations.] A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) A book account is a detailed statement of debits and credits on an account from which it can be reasonably determined what amount is due to the claimant. [Citations.]” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

The common count for Goods Sold and Delivered is an action of indebtedness for goods sold and delivered at an agreed price. (Abadie v. Carrillo (1986) 32 Cal. 173.) The elements of such a claim include: (1) Defendant requested goods through words or conduct; (2) the goods were delivered; and (3) the goods wee not paid for. (CACI 371.) The damages equal the reasonable value of the goods. (Id.)

“Matters that are admitted or deemed admitted through [requests for admissions] are conclusively established in the litigation and are not subject to being contested through contradictory evidence.” (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30-31.) A “deemed admitted” order establishes that a nonresponding party has responded to the propounding party’s requests for admissions by admitting the truth of all matters contained therein. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Party admissions are given “an unusual deference in summary judgment proceedings. An admission is binding unless there is a credible explanation for the inconsistent positions taken by a party. [Citations.]” (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 396.) When an admission against a party’s own interest “becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)

Here, this Court granted Plaintiff’s unopposed Motions to Deem Requests for Admissions Admitted against Defendants L&M Food Services, Inc. and Tzvi Odzer on November 16, 2023. Thus, Defendants have admitted that:

·        L&M Food Services owes Caltex Plastics $53,197.99 on an account stated. (SS No. 7.)

·        Tzvi Odzer is the alter ego of L&M Food Services, Inc. (SS No. 11.)

·        The statement attached to the RFA as Exhibit 1 is genuine, and includes a personal guarantee by Tzvi Odzer. (SS No. 12.)

·        L&M Food Services owes Caltex Plastics $53,197.99 on an open book account. (SS No. 21.)

·        L&M Food Services made partial payments leaving an unpaid balance due and owing in the amount of $53,197.99 as the agreed upon price. (SS No. 32 and 46.)

·        L&M Food Services owes Caltex Plastics $53,197.99 for the reasonable value of goods sold and delivered. (SS No. 54.)

Based on the deemed admissions, the burden shifts to Defendants to offer evidence supporting any defenses to Plaintiff’s causes of action. (See CCP §437c(f)(1).)

Being unopposed, the Motion for Summary Judgment is GRANTED. The Alternative Motion for Summary Adjudication is rendered MOOT.

Pre-Judgment Interest

Plaintiff further argues that it is entitled to pre-judgment interest at the rate of 18% for a total of $21,545.19. “(a) Any legal rate of interest stipulated by contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. (b) If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach.” (CCP §3289.) Defendants admitted they were obligated to pay prejudgment interest at the rate of 18%. (SS No. 9; see also Rosenfeld Decl., ¶6.) The Court has reviewed and approves the interest calculations contained in the declaration of Roger G. Klein and GRANTS the request for prejudgment interest. (Klein Decl., ¶10.)

Attorney’s Fees and Costs

Plaintiff also asks for attorney’s fees in the amount of $19,080.00 plus costs of $1,273.72. Cal. Civ. Code §1717 allows for the award of attorney’s fees in a contract action where the contract allows for the collection of attorney’s fees. (Cal. Civ. Code §1717(a).) Defendants admitted that Plaintiff is entitled to attorney fees. (See e.g. SS No. 10; see also Rosenfeld Decl., ¶6.) It is undisputed that the invoices between the parties provide for the collection of attorney’s fees expended as costs for collection. The unopposed request for attorney’s fees in the amount of $19,080.00 is GRANTED.

Plaintiff requests costs in the amount of $1,273.72 for filing and motion fees. (Klein Decl., Ex. 5.)  The request for costs is DENIED without prejudice as premature. “A prevailing party who claims costs must serve and file the memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk… or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (CRC Rule 3.1700(a)(1).) “After the time has passed for a motion to strike or tax costs or for determination of the motion, the clerk must immediately enter the costs on the judgment.” (CRC Rule 3.1700(b)(4).) Since Judgment has not yet been entered, and this case has not been dismissed, no Memorandum of Costs has been filed as of March 18, 2024 and costs cannot yet be granted at this time.