Judge: Michael E. Whitaker, Case: 23SMCV05222, Date: 2024-07-18 Tentative Ruling

Case Number: 23SMCV05222    Hearing Date: July 18, 2024    Dept: 207

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment
2. Memorandum of Points and Authorities
3. Separate Statement of Undisputed Material Facts
4. Plaintiff’s Evidence in Support of its Motion for Summary Judgment

BACKGROUND

On November 3, 2023, Plaintiff American Express National Bank (“Plaintiff”) filed a complaint against Defendant Vivian Flesch (“Defendant”) alleging the common counts of open book account and account stated.  Defendant filed an answer to the complaint on December 4, 2023. 

Plaintiff now moves for summary judgment.  Plaintiff’s motion is unopposed.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

A.    Open Book Account

The elements of a common count are (1) statement of indebtedness in a certain sum; (2) consideration; and (3) nonpayment.  (Allen v. Powell (1967) 248 Cal.App.2d 502, 510.) 

The term “book account” means 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 a permanent character, or is kept in any other reasonably permanent form and manner.

(Code Civ. Proc., § 337a, subd. (a).)

            “A book account is ‘open’ where a balance remains due on the account.”  (Eloquence Corporation v. Home Consignment Center (2020) 49 Cal.App.5th 655, 664–665.)  However, “[t]he mere recording in a book of transactions or the incidental keeping of accounts under an express contract does not of itself create a book account.”  (Id. at p. 666.)  

Further, “[a]n open account results where the parties intend that the individual items of the account shall not be considered independently, but as a connected series of transactions, and that the account shall be kept open and subject to a shifting balance as additional related entries of debits and credits are made, until it shall suit the convenience of either party to settle and close the account, and where, pursuant to the original express or implied intention, there is but one single and indivisible liability arising from such series of related and reciprocal debits and credits.”  (R.N.C. Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972.)

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.)

Plaintiff has provided evidence that on June 1, 1993, Defendant opened an American Express Gold Card Account number ending in x90000.  (UMF Nos. 1, 13.)  The Account is governed by the Cardmember Agreement, a physical copy of which Plaintiff transmitted to Defendant with the card.  (UMF Nos. 2-3; 14-15.)  By keeping and using the Account, Defendant agreed to be bound by the terms of the Cardmember Agreement.  (UMF Nos. 4; 16.)  Defendant used the Account to pay for various goods and services and/or obtain cash advances.  (UMF Nos. 5; 17.) 

Further, pursuant to the Cardmember Agreement, Defendant is personally responsible for repaying Plaintiff for all charges, advances, fees and interest on the Account by making regular monthly payments.  (UMF Nos. 6; 18.)  Defendant failed to make the required monthly payments on the Account.  (UMF Nos. 7; 19.)  Plaintiff maintains an accounting of all credits and debits on the Account, which it sent to Defendant every month.  (UMF Nos. 8; 20.)  Defendant’s outstanding balance on the account is $29,227.51.  (UMF Nos. 11; 23.)  

Therefore, Plaintiff has met its burden of establishing the prima facie elements of its cause of action for common counts – open book account and account stated.  Because Defendant has not opposed the Motion, Defendant has not met her burden of production to raise a triable issue of material fact.

CONCLUSION AND ORDER

For the foregoing reasons, the Court grants Plaintiff’s unopposed motion for summary judgment.  Further, the Court will enter the Order lodged on April 22, 2024, and orders Plaintiff to lodge a proposed Judgment in conformity with the Court’s ruling on or before August 1, 2024. 

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  July 18, 2024                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court