Judge: Olivia Rosales, Case: 21NWCV00201, Date: 2022-08-11 Tentative Ruling

Case Number: 21NWCV00201    Hearing Date: August 11, 2022    Dept: SEC

DISCOVER BANK v. KEERTHISINGHE

CASE NO.:  21NWCV00201

HEARING:  08/11/22

JUDGE:  OLIVIA ROSALES

#7

TENTATIVE ORDER

Plaintiff DISCOVER BANK’s unopposed Motion for Summary Judgment is GRANTED. The alternative Motion for Summary Adjudication is MOOT.

Moving Party to give Notice.

No Opposition filed as of August 9, 2022. Due by July 28, 2022. (CCP §437c(b)(2).)

This collections action was filed by Plaintiff DISCOVER BANK (“Plaintiff”) on April 12, 2021. Plaintiff is seeking to recover payment “[f]or a loan issued by Plaintiff to Defendant(s) upon request by the Defendant. The loan is identified as account ending in 7361. The Defendant(s) was billed periodically throughout the credit relationship for the credit extended pursuant to the requirements of the Fair Credit Billing Act…. The Plaintiff has performed all conditions precedent to brining this action or the same have been waived by the Defendant(s).” (Complaint, CC-1(b)(6).)

Plaintiff’s Form Complaint asserts the following causes of action: (1) Open Book Account; and (2) Account Stated.  

Plaintiff now moves for summary judgment or alternatively summary adjudication of all causes of action.

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:

·        Plaintiff established an account with Discover in the name of MANJULA KEERTHISINGHE. (SS No. 1.)

·        The account records also show that MANJULA KEERTHISINGHE is the account holder on a Discover Personal Loan account. (SS No. 2.)

·        Defendant agreed to be bound by the terms and conditions of the Loan Agreement. The Account funds were disbursed to the Defendant’s designated bank account, sent by check, or a third party designee as requested by the Defendants. (SS No. 5.)

·        Every month, Discover Bank generated an invoice or billing statements…that showed all of the loans, payments, interest, and outstanding balances. These statements were mailed to Defendant’s address on file. (SS No. 8.)

·        Plaintiff’s business records are computerized. Plaintiff maintains these records in the ordinary course of its business. (SS No. 9.)

·        Defendant has failed to make the regular payments on the account. (SS No. 12.)

The unopposed Motion for Summary Judgment is GRANTED.