Judge: Lee W. Tsao, Case: 23NWCV01049, Date: 2024-02-29 Tentative Ruling

Case Number: 23NWCV01049    Hearing Date: February 29, 2024    Dept: C

WELLS FARGO BANK, NA v. ESQUIVEL

CASE NO.:  23NWCV01049

HEARING:  02/29/24

#10

Plaintiff WELLS FARGO BANK NA’s unopposed Motion for Summary Judgment is GRANTED.

Moving Party to give Notice.

No Opposition filed as of February 26, 2024.

This collections action was filed by Plaintiff WELLS FARGO BANK, N.A. (“Plaintiff”) on April 5, 2023. Plaintiff is seeking to recover payment for credit extended to purchase goods, services, and/or for cash advances.

Plaintiff’s Form Complaint asserts the following causes of action:

(1) Breach of Written Contract

(2) Breach of Contract (Implied in Fact)

(3) Money Lent

(4) Money Paid

(5) Open Book Account

(6) Account Stated

Plaintiff now moves for summary judgment.

The elements of a cause of action for breach of contract are as follows: (1) existence of contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage to plaintiff. (See Reichert v. General Ins. Co. (1968) 88 Cal.2d 822, 830.)

An action for money lent requires showing: (1) Defendants are indebted to Plaintiff in a certain sum; and (2) for money lent, paid or extended to, or for, the Defendants. (See Moya .v Northrup (1970) 10 Cal.App.3d 276, 280.)

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.)

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 facts are undisputed:

·        Defendant applied for and was issued a Wells Fargo credit card ending in 3883. (SS No. 1.)

·        Defendant accepted the terms of the Customer Agreement associated with the card. (SS No. 3.)

·        Defendant used the account, made payments, charges, and incurred a balance thereon. (SS No. 6.)

·        Defendant’s last payment on the account was on May 4, 2022. (SS No. 11.)

·        The balance due on Defendant’s account is $30, 846.72. (SS No. 13.)

The unopposed Motion for Summary Judgment is GRANTED.