Judge: Ronald F. Frank, Case: 22TRCV01002, Date: 2023-07-20 Tentative Ruling

Case Number: 22TRCV01002    Hearing Date: July 20, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 July 20, 2023¿ 

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CASE NUMBER:                  22TRCV01002

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CASE NAME:                        American Express National Bank v. Sandi Love 

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MOVING PARTY:                Plaintiff, American Express National Bank

RESPONDING PARTY:       Defendant, Sandi Love (no opposition filed.)

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TRIAL DATE:                        Not Set.

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MOTION:¿                              (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication

¿ Tentative Rulings:                 (1)  GRANTED

I. BACKGROUND¿¿ 

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A.    Factual¿¿ 

On October 20, 2022, Plaintiff, American Express National Bank (“Plaintiff”) filed a Complaint against Defendant, Sandi Love. The Complaint alleges a cause of action for Common Count.

Plaintiff now files a Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication.

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B. Procedural¿¿ 

            On February 27, 2023, Plaintiff filed a Motion for Summary Judgment. To date, no opposition has been filed. Plaintiff’s counsel reported at a previous hearing that the parties were having settlement discussions, but the motion remained pending.  The law has processes for a party to seek postponement of the hearing on an MSJ if additional discovery is pending as to proof the responding party claims to need to oppose the motion.  Defendant has not availed herself of that process. 

II. ANALYSIS¿ 

A. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿ To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

B. Discussion 

Plaintiff makes this motion pursuant to Code of Civil Procedure § 437(c)(a)(1), which states: “[a] party may more for summary judgment in an action or proceeding if it is contended that the actin has no merit or that there is no defense to the action or proceeding.”

Account Stated

            Plaintiff argues that there was an account stated between the parties. “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; [and] (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 contends that the parties entered into an agreement (The Cardmember Agreement) (UMF 13), where American Express mailed the Cardmember Agreement to Defendant along with the physical credit card (which allegedly sated that a notice contained in a billing statement is “adequate notice” under the Truth in Lending Act.) Plaintiff asserts that Defendant accepted the Agreement by keeping and using the card. Under the Cardmember Agreement, Plaintiff suggests that Defendant was required to repay American Express for all charges, advances, fees and interest on the Account by paying the Account in full every month or by making regular monthly payments.

            Plaintiff further notes that it mailed a statement of the account to Defendant every month, which accurately reflected that Defendant was indebted to Plaintiff. Plaintiff notes this statement was sent to the address provided to Plaintiff by Defendant, and that in the event Defendant moved, Defendant was required to notify Plaintiff of the correct mailing address. Next, Plaintiff contends that the account is truly stated because there are no unresolved disputes on the account. Plaintiff asserts that if Defendant were to have discovered any errors on the monthly billing statement, Defendant had a reasonable amount of time to submit a dispute to Plaintiff. With respect to billing errors, Plaintiff contends that Defendant had sixty (60) days to submit an “inquiry” or “dispute” in writing to American Express.

            Plaintiff argues that an open book account existed between the parties. “The elements of an open book account cause of action are: “1. That plaintiff and defendant had financial transactions; 2. That plaintiff kept an account of the debits and credits involved in the transactions; 3. That defendant owes plaintiff money on the account; and 4. The amount of money that defendant owes plaintiff.” (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 449, brackets, ellipses, quotation marks, and paragraph marks omitted.) Here, Plaintiff has made clear that the parties have had financial transactions and that they have kept an account of the debits and credits involved in the transaction. Plaintiff notes its records are electronically maintained in the form of billing statements that were generated and stored on its internal network. Plaintiff has also made clear that Defendant owes Plaintiff money on the account, in the sum of $29,938.33. As such, they have stated and proven the elements, and have provided proof of an open book account with entitlement to the stated amount.

IV. CONCLUSION¿¿ 

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For the foregoing reasons, this Court’s tentative ruling is to GRANT Plaintiff’s unopposed Motion for Summary Judgment.

Plaintiff is ordered to give notice.