TENTATIVE RULING

Calendar:    14

Date:          1/12/2024 

Case No: 22 GDCV00166 Trial Date: April 14, 2025  

Case Name: Goldman Sachs Bank USA v. Antashkevich

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party:            Plaintiff Goldman Sachs Bank USA        

Responding Party:      Defendant Viktoryia Antashkevich  

RELIEF REQUESTED:

In the alternative, summary adjudication in favor of plaintiff on the first cause of action for open book account. 

 

CAUSES OF ACTION: from (Form) Complaint   

1) Common Counts 

Open Book Account 

Account Stated 

Money Lent 

Money Paid, Laid Out and Expended at Defendant’s Special Instance and Request 

Other 

SUMMARY OF FACTS:

Plaintiff Goldman Sachs Bank USA alleges that within the last four years defendant Viktoryia Antashkevich became indebted to plaintiff on an open book account for money due, because an account was stated in writing between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff and based on other common counts. 

The complaint alleges that plaintiff issued a loan to defendant, upon defendant’s request, that defendant was billed periodically throughout the credit relationship for the credit extended and that defendant has become indebted to plaintiff in the sum of $26,159.71, which is the fixed and agreed upon amount due and unpaid despite plaintiff’s demand. 

This motion was originally noticed to be heard on November 17, 2023.  There had been no written opposition filed by defendant.  The matter was called for hearing, along with an ex parte application brought by defendant to continue the hearing on the motion for summary judgment.  The court issued a tentative ruling via posting on LACourt.org website, which was to grant the unopposed motion for summary judgment or in the alternative, for summary adjudication.  

At the hearing, the court granted the ex parte application and continued the hearing on the motion for summary judgment or in the alternative, for summary adjudication to December 22, 2023, to permit defendant the opportunity to file opposition to plaintiff’s motion. 

Moving party was ordered to give notice. 

No timely opposition was filed to the motion, which, under CCP section 437c(b)(2), was due to be served and filed “not less than 14 days preceding the noticed or continued date of hearing.”  

At the hearing on December 22, 2023, the court issued a tentative ruling via posting on LACourt.org website, which was to grant the unopposed motion.  The minute order reflects that the matter was not called for hearing, and the court granted an ex-parte application to continue the hearing on the motion for summary judgment filed by plaintiff Goldman Sachs “to allow Plaintiff to file a Reply.”   The hearing was continued to January 12, 2024.  

ANALYSIS:

Under CCP § 437c(p)(1) a plaintiff “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 that cause of action.  Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

In this case, plaintiff treats the matter as a straightforward collections case, where there can be no dispute with respect to the obligation to pay and the amount due.

First Cause of Action—Open Book Account:

Summary adjudication should be granted in favor of Plaintiff on the first cause of action for Open Book Account as there is a book account kept by Plaintiff the constitutes the initial funding of the loan and payments on the account relative to Defendant’s personal loan account. 

CCP § 337a defines a “Book account”

“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 debts 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.”

See also Tsemetzin v. Coast Federal Savings & Loan Assn. (1997 2nd Dist.) 57 Cal.App. 4th 1334, 1343.

 With respect to the other common counts alleged, elements apply such as those required to establish, for example, a claim for account stated, pursuant to which plaintiff must prove:

1.  At a specific time and place

2.  “there was an account stated between plaintiff and defendant” whereby it was agreed or found that

3.  Defendant was indebted to plaintiff in a specified sum.

Trinagli v. Vest (1951) 106 Cal.App.2d 720, 721.  

Plaintiff provides a declaration from its Legal Operations Analyst showing that defendant Viktoryia Antashkevich established an account for a loan with plaintiff Goldman Sachs, that account funds were disbursed to defendant and that the terms of the agreement were for defendant to make 59 monthly payments in the sum of $637.26, and one monthly payment in the estimated sum of $635.18.  [Rucker Decl., ¶ 4; Ex. A].   The analyst also provides an account statement showing that defendant is in default on the account, and the total amount due as of May 20, 2019, including interest, was $26,159.71.  [Decl. ¶¶ 6-9; Exs. B, C].  The statements submitted are not inconsistent with this number, and the analyst has also indicated there were no offsets or credits due against the sum.  [Decl., ¶ 9; Ex. C].  The documentation submitted shows that there were billing statements generated, directed to defendant, and that defendant made some payments on the account through December of 2018, acknowledging the account.  [See Ex. B].  This showing is sufficient to establish the existence of a book account, and account stated. 

The total amount sought by plaintiff is the principal sum of $26,159.71.  [UMF No. 10; Rucker Decl., ¶ 9; Ex. C].  

This showing is sufficient to meet plaintiff’s burden of proving each element of one or more of its common counts claims, and the burden shifts to defendant to show that a triable issue exists as to the causes of action or a defense thereto.   CCP § 437c(o).   

Defendant in opposition argues that the motion must be denied because the evidence submitted by plaintiff lacks foundation and consists of inadmissible hearsay.  

Defendant submits evidentiary objections, arguing that the declarant submitting testimonial and documentary evidence on behalf of plaintiff lacks personal knowledge concerning the subject transaction, but relies solely on hearsay in connection with a review of the bank’s records.   However, plaintiff does not address the language of the declaration in which the declarant sets forth facts to establish a business records exception to the hearsay rule. 

Evidence Code section 1271 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and 

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

The trial court has wide discretion in determining whether sufficient foundation is laid to qualify evidence as business records, and its decision will not be overturned on appeal absent a clear showing of abuse of discretion.  People v. Lugash (1988) 205 Cal.App.3d 632, 638-639.    

 

The subject declaration is made by plaintiff’s Legal Operations Analyst, Bonnie Rucker, based on the witness’ “personal knowledge of the regular practices and procedures with respect to Goldman Sachs loans,” and “derived from a review” of attached business records.  [Rucker Decl. ¶ ¶ 1, 2].  The declaration states, in pertinent part:

“4. In my capacity as a Legal Operations Analyst for Goldman Sachs, I have knowledge regarding, and access to, records regarding the Goldman Sachs Loan, and the defendant(s) herein. Goldman Sachs maintains these records in the ordinary course of its business, and the records are updated with information on events (such as charges and payments on the loan) by individuals with personal knowledge of those events or by automated processes that track such events at or near the time that the events occur. The same systems that record this information also generate periodic statements that are provided to Borrowers, and store copies of these periodic statements. In addition, these same record-keeping systems contain information about which version of Goldman Sachs' terms and conditions has been communicated to a borrower and accepted by a borrower at the time of the funding of the loan. I have personally inspected the records pertaining to the loan taken out by the defendant(s), including the record of periodic statements provided to the defendant(s) by Goldman Sachs, the applicable terms and conditions, the balance due on the loan and the payments applied to the defendant(s)'s loan.

[Rucker Decl. ¶ 4]. 

The Rucker Declaration accordingly satisfies each of the statutory requirements.  It contains showings indicating the trustworthiness of these business records.  The evidence is sufficient to overcome objection and support the showing urged by plaintiff, based on business records, that plaintiff is entitled to the amount stated from defendant.  The motion will not be denied on this ground. 

Defendant also argues that defendant has raised the defense of identity theft, and that the issue of whether defendant opened the subject account, or some other individual forged defendant’s signature is a triable issue of fact.  Defendant argues that she has produced evidence in the form of an affidavit that she was the victim of identity theft, and she did not open an account with plaintiff. 

Defendant submits her own declaration, in which she states:

“3.  I have been a victim of identity theft. 

4. My personal information has been stolen and compromised several years ago. 

5. Some credit card and checking accounts were opened in my name, including an account with Plaintiff Goldman Sachs bank.

6. I have disputed the accounts and have submitted an Identity Theft Report with the Federal Trade Commission (FTC). I have possession of the copy of the Report I have submitted to the FTC. 

7. I deny opening an account with Plaintiff Goldman Sachs Bank. 

8. I deny receiving funds from Plaintiff.”

[Antashkevich Decl. ¶¶ 3-8].

The statements in this declaration, if credited, are sufficient to raise triable issues of fact with respect to whether plaintiff can establish the element to support its common count cause of action in the pleading that defendant entered into a transaction arising out of a contract or fiduciary relation with plaintiff giving rise to a book account, or that there was an agreement between plaintiff and defendant to give rise to an account stated between them.  [Additional Facts Nos. 1-5, and evidence cited; Antashkevich Decl. ¶¶ 3-8].  As set forth above, defendant directly denies opening an account, or receiving funds from plaintiff.  

The showing would be stronger if plaintiff had submitted documentary support showing that she has disputed the subject account or other accounts and has submitted an identity theft report to the appropriate authorities, particularly as defendant indicates she has a copy of such a report in her possession.  However, this would go to the weight of the evidence and the weight of the inferences to be drawn from the parties’ respective declarations.      

Under CCP § 437c(c): 

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

It is held that in ruling on a motion for summary judgment, pursuant to this subdivision, the court “must view such evidence and such inferences in the light most favorable to the opposing party.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, internal citations omitted.   

It is also held that under this subdivision, the trial court may not weigh the evidence or inferences.  Aguilar, at 856 (“Aguilar also claims that the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact. We agree here as well.”) 

Viewing the evidence and inferences most favorable to defendant, the opposing party, triable issues of fact remain concerning whether plaintiff can establish entitlement to recovery under its common counts cause of action, based on defendant’s denial that she was the person who assumed the alleged obligations and indebtedness.  The motion accordingly is denied. 

RULING:

CCP 437c(g):  Material facts which do or do not create a triable issue of controversy:

Plaintiff’s Motion for Summary Judgment is DENIED. 

Motion for Summary Adjudication is DENIED.

First Cause of Action—Open Book Account:

Summary adjudication should be granted in favor of Plaintiff on the first cause of action for Open Book Account as there is a book account kept by Plaintiff the constitutes the initial funding of the loan and payments on the account relative to Defendant’s personal loan account. 

Defendant has raised triable issues of fact with respect to whether plaintiff can establish the element to support its common count cause of action in the pleading that defendant entered into a transaction arising out of a contract or fiduciary relation with plaintiff giving rise to a book account, or that there was an agreement between plaintiff and defendant to give rise to an account stated between them, or any other basis for common count recovery.  [Additional Facts Nos. 1-5, and evidence cited; Antashkevich Decl. ¶¶ 3-8].  Specifically, defendant has submitted a declaration denying that she opened the subject account, denying that she received funds from plaintiff, and explaining that she was instead the victim of identify theft, which she has reported. [Antashkevich Decl. ¶¶ 3-8].  

Defendant’s Objections to Evidence in Support of Plaintiff’s Motion for Summary Judgment are OVERRULED. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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