Judge: Michael J. Strickroth, Case: 2022-01267086, Date: 2023-08-14 Tentative Ruling
Motion for Summary Judgment
Plaintiff, Wells Fargo Bank, N.A.’s (Plaintiff) Motion for Summary Judgment is DENIED.
“For purposes of motions for summary judgment…: [¶] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”
Plaintiff moves for summary judgment on each cause of action in its complaint against Defendant, Parrisa Yazdani--which include (1) breach of contract; (2) breach of contract (implied in fact); (3) money lent; (4) money paid; (5) open book account; and (6) account stated.
First and Second Causes of Action for Breach of Contract
Plaintiff contends it can establish all of the elements of the first cause of action for breach of contract and second cause of action for breach of implied contract.
In order to establish a breach of contract, the plaintiff must show: “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” Reichert v. General Insurance Company of America (1968) 68 Cal. 2d 822, 830.
“An implied contract ‘must be founded upon an ascertained agreement of the parties to perform it...It is thus an actual agreement between the parties, ‘the existence and terms of which are manifested by conduct.’ (citation omitted)” Friedman v. Friedman (1993) 20 Cal. App. 4th 876, 887. An implied in fact contract may be inferred from the “conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise. (citation omitted)” Id. at 887-888.
Specifically, Plaintiff argues that the following is undisputed:
· Defendant applied for and received a credit card (Card) from Plaintiff,
· Defendant was sent a written Customer Agreement along with the Card,
· Defendant agreed to the Customer Agreement by using the Card,
· Pursuant to the Customer Agreement, Plaintiff would extend Defendant credit on the Card in exchange for Defendant repaying the principal amount plus applicable fees and charges,
· Plaintiff sent Defendant monthly statements reflecting payments, charges and the balance on the Card,
· Defendant did not dispute any of the statements,
· Defendant stopped making payments on 9-11-21,
· The remaining balance owed is $22,157.69. (Separate Statement of Material Facts (PSS), Nos. 1-14.)
Plaintiff submits the Declaration of Evelyn J. Sican in support of its motion. Ms. Sican attests: “I am employed by Wells Fargo Bank N.A. in the legal remedies department. I am also a qualified witness for Wells Fargo Bank, N.A. ("Plaintiff'), the Plaintiff in the action herein pending…[¶] My title is Loan Workout Specialist. [¶] As part of my duties, I am responsible for monitoring the legal process for credit card accounts, investigation and resolution of customer disputes, research and review of Wells Fargo Bank, N.A. 's business records for the purposes of litigation.[¶] As part of my duties as Loan Workout Specialist, I have reviewed the account of PARRISA M. YAZDANI (“Defendant”) which is the subject of this lawsuit…[¶] Defendant applied for, and was issued a Wells Fargo credit card account.[¶] Thereafter, Plaintiff sent Defendant a Wells Fargo Credit Card through the mail. [¶] The most recent Customer Agreement associated with the Credit Card was made available to Defendant for review and objection. [¶] Pursuant to Paragraph 1 of the Customer Agreement, Defendant accepted the terms of the Customer agreement by using the credit card.[¶] Defendant charged goods and services to the account, or authorized others to charge goods and services to the account, with Plaintiff and thereby incurred a balance for said charges along with interest which was stated on the monthly billing statements. [¶] There is no record of any unresolved disputes on this credit card account or any active lawsuits against Wells Fargo Bank, N.A. for unresolved disputes on this credit card account of which Plaintiff is aware. [¶] The Defendant made payments of the principal and interest on the subject account up and through September 11, 2021. [¶] No further payments were made on this account after September 11, 2021, and a balance of $22,157.69 remains due and owing from Defendant to Plaintiff on the subject account.” (Sican Declaration (ROA 47), ¶¶ 1-3, 8-12, 15, 20-22.)
Based on the Sican Declaration, the Court first finds Plaintiff has met its burden as the moving party of proving each element of the first two causes of action for breach of contract.
Defendant disputes each fact in support of Plaintiff’s motion on the first two causes of action. Defendant relies on her own declaration for this dispute. Defendant’s Declaration states: “I did not agree with WELLS FARGO BANK, N.A. to terms in any Consumer Credit Card Customer Agreement & Disclosure Statement. [¶] I do not recall ever entering into or applying for a Wells Fargo credit card ending in 1850. [¶] I did not receive a written Customer Agreement as indicated by the Qualified Witness. [¶] I was never provided the terms or an agreement to which I agreed. [¶] I did not receive monthly statements of the Subject Account as indicated by the Qualified Witness. [¶] I have looked at every statement attached to the declaration of the Qualified Witness and there are fees charged on every one of the documents that I did not agree with. These fees are Interest fees, Late fees, and Fees Charged that I do not agree with. I also never agreed to any change in interest rates. [¶] It is my position in this lawsuit that I do not owe WELLS FARGO BANK, N.A. any money. Even if I did the amount that WELLS FARGO BANK, N.A. is claiming I owe is not accurate and includes improper fees and improper interest rates.” (Defendant Decl., ¶¶ 2-3, 6-8, 11.)
In reply, Plaintiff argues Defendant’s statements are insufficient to create triable issues because they consist of legal conclusions, not facts. Plaintiff cites to FPI Developmental., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 (FPI), Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, Berger v. California Insurance. Guaranty. Association. (2005) 128 Cal.App.4th 989, 1006 (Berger) and Jones v. Grewe (1987) 189 Cal.App.3d 950, 954 (Jones) for this argument.
FPI does not support Plaintiff’s argument, as it discusses the sufficiency of affirmative defenses. Here, Defendant’s affirmative defenses are not in dispute. Doe is also factually inapplicable, because it discusses the sufficiency of claims for child sexual abuse and not the standard for a declaration opposing a motion for summary judgment. Berger is also not helpful because it discusses the standard for pleading a claim under Insurance Code section 1063 on demurrer. Finally, Jones also arises in the context of demurrer, as it discusses whether a claim of negligence is sufficiently pled.
Based on the foregoing and reading Defendant’s Declaration as a whole, it appears Defendant is asserting the following: (1) she does not remember opening the Card, (2) she did not receive the Customer Agreement or its terms. The last portion of Defendant’s Declaration appears to be saying that in the event she did open the Card and incur charges, she did not agree to the interest and fees charged.
Thus, the Court finds Defendant has raised a triable issue as to whether she received the Customer Agreement or agreed to the amounts allegedly charged to her. Specifically, this is because Exhibit 1 to the Sican Declaration does not have any indication it was sent to Defendant, while Defendant specifically states she did not receive the Customer Agreement. Defendant also affirmatively states she did not agree to late fees, interest fees, and fees charged.
Because Plaintiff is required to establish each element of a breach of contract claim and the Court finds Defendant has demonstrated the existence of a triable issue, the Court therefore denies Plaintiff’s motion as it relates to causes of action 1 and 2.
Factually Devoid Discovery Responses
Plaintiff also argues summary judgment should be granted because Defendant has only provided factually devoid discovery responses and factually devoid discovery responses, by themselves, are sufficient grounds to grant summary judgment. (Motion, 10:21-11:26.) However, Plaintiff’s separate statement and memorandum both include no citation to discovery responses which Plaintiff claims to be deficient.
Therefore, the Court finds Plaintiff has not met its burden as the moving party on this argument, as Plaintiff did not submit evidence in support of this argument.
Plaintiff’s motion is for summary judgment, not summary adjudication. Therefore, because the motion is denied as to causes of action 1 and 2, the court need not address causes of action 3, 4, 5, and 6 as summary judgment cannot be granted.
In summary, Plaintiff, Wells Fargo Bank, N.A.’s (Plaintiff) Motion for Summary Judgment is DENIED.
Defendant is to give notice.