Judge Mark A. Young, Case 20SMCV00436 2022-09-29 Tentative Ruling

Judge: Mark A. Young, Case: 20SMCV00436, Date: 2022-09-29 Tentative Ruling

Case Number: 20SMCV00436 Hearing Date: September 29, 2022 Dept: M

CASE NAME: Wells Fargo Bank, NA v. Sibiryov

CASE NO.: 20SMCV00436

MOTION: Motion for Summary Judgment/Adjudication

HEARING DATE: 9/29/2022

Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).)

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)

Analysis

Plaintiff moves for summary judgment on its collection action against Defendant. The operative Complaint alleges that Defendant owes $43,652.96 to Plaintiff under a credit card agreement. (Compl., BC-1, Ex. A.) The Complaint states six claims for: (1) breach of written contract, (2) breach of implied in fact contract, (3) money lent, (4) money paid, (5) open book account, and (6) account stated.

“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.) “A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)

“The only essential allegations of a common count 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.) “A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” (Id.)

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, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of permanent character, or is kept in any other reasonably permanent form and manner.’” (Eloquence Corporation v. Home Consignment Center (2020) 49 Cal.App.5th 655, 664.) “A book account is ‘open’ where a balance remains due on the account.” (Id. at 664-65; see also Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1083 (finding monthly credit card statements were sufficient evidence to support the amount due under a common open book account theory).)

“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.)

Plaintiff presents the following undisputed material facts. Defendant applied for and was issued a Wells Fargo credit card ("Subject Account") ending in 4739. (UF 1.) Plaintiff sent Defendant the credit card along with the written Customer Agreement associated with the credit card. (UF 2, see Ex. 1.) Defendant accepted the terms of the written agreement when they used the Wells Fargo Credit Card. (UF 3.) Pursuant to the agreement’s terms, Plaintiff would extend credit to Defendant whereby Defendant could charge goods, services, or obtain cash advances on the credit line. (UF 4.) In exchange, Defendant was to repay the principal amount lent plus applicable interest and finance charges. (UF 5.)

Defendant used the account, and made payments, charges, and incurred a balance thereon. (UF 6.) Plaintiff sent Defendant monthly statements of the Subject Account each and every billing period. (UF 7.) The statements of the account reflected all charges, payments, minimum payment due that billing period, and any fees and interest incurred for each billing period. (UF 8, Ex. 2.) Defendant's statements of account show a balance due of $43,652.96. (Id.) There is no record of any unresolved disputes on the account. (UF 9.) (The Court notes that there is a cross-complaint filed by Defendant that asserts that the credit card agreement was entered into via fraud.) Defendant's last payment on the Subject Account was on May 14, 2019 (UF 11.) No further payments have been made and Defendant is in default. (UF 12.) As noted, the balance on the account is $43,652.96. (UF 13.) Thus, Plaintiff demonstrates contract and common count damages in that amount.

The facts support Defendant’s breach of the credit card agreement in the alleged amount. The facts also support the conclusion that the final statement was a final rendering of the Subject Account and Defendant impliedly agreed to pay that amount.

Therefore, Plaintiff meets its burden of production to show that there is no dispute to the material elements of each cause of action it asserts against Defendant. The burden shifts to Defendant. Defendant failed to oppose and present conflicting evidence. Accordingly, Plaintiff’s motion for summary judgment is GRANTED.