Judge Olivia Rosales, Case 21NWCV00512 2022-10-25 Tentative Ruling

Judge: Olivia Rosales, Case: 21NWCV00512, Date: 2022-10-25 Tentative Ruling

Case Number: 21NWCV00512 Hearing Date: October 25, 2022 Dept: SEC

CITIBANK N.A. v. AVETISIAN

CASE NO.: 21NWCV00512

HEARING: 10/25/22 @ 10:30 AM

TENTATIVE RULING

Defendant Avetisian’s motion to dismiss is DENIED. If the motion is construed as a demurrer, the demurrer is OVERRULED. Defendant is ORDERED to file and serve his Answer within 10 days.

Opposing Party to give NOTICE.

Defendant Avetisian moves to dismiss the action pursuant to “Fed. R. Civ. P. 12(b).”

Plaintiff Citibank N.A. filed the instant action on August 9, 2021, alleging a debt owed by Defendant Avetisian in the sum of $27,971.91. The Complaint asserts causes of action for:

1. Open Book Account

2. Account Stated

On November 15, 2021, default judgment was entered in favor of Plaintiff and against Defendant.

On August 4, 2022, the court granted Defendant’s motion to set aside default and default judgment.

Initially, the court notes that Defendant’s reliance on the Federal Rule of Civil Procedure is incorrect as this is a state court matter. The court will construe Defendant’s motion as a demurrer.

Defendant contends that the court lacks subject matter jurisdiction; the complaint contains perjury; and the action is a breach of Defendant’s privacy.

It is well established that California law permits the use of common counts to recover unpaid credit card debt. (HSBC Bank Nev., N.A. v. Aguilar (2012) 295 Cal.App. 4th Supp. 6; Pike v. Zadig, 171 Cal. 273, 276; Smith v. Randall, 51 Cal. App. 2d 195, 197.) A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

The Complaint alleges that Defendant Avetisian owes Defendant $27,971.91. The claim is proper, and Defendant has standing to sue because it was a creditor that was injured by Defendant’s failure to pay the sums due.

This court has subject matter jurisdiction over the claims because the lawsuit was filed in the judicial district where Defendant resides, and the claims are proper state law claims.

Perjury is not a valid ground for demurrer. The facts alleged in the pleading are deemed to be true, however improbable they may be," unless the "complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.)

Finally, breach of privacy is not a valid ground for demurrer. Plaintiff can lawfully file a debt collection suit in response to Defendant’s default in making timely payments. The Complaint does not disclose any private information belonging to Defendant.

Accordingly, the motion is DENIED. If the motion is construed as a demurrer, the demurrer is OVERRULED. Defendant is ORDERED to file and serve his Answer within 10 days.