Judge: Upinder S. Kalra, Case: 22STCV06507, Date: 2022-12-14 Tentative Ruling
Case Number: 22STCV06507 Hearing Date: December 14, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: December
14, 2022
CASE NAME: Discover Bank v. Leslie Molina
CASE NO.: 22STCV06507
PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
MOVING PARTY: Plaintiff Discover Bank
RESPONDING PARTY(S): None as of December 9, 2022
REQUESTED RELIEF:
1. An
order granting summary judgment, or alternatively, summary adjudication.
TENTATIVE RULING:
1. Motion
for Summary Judgment, or alternatively, Summary Adjudication is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On February 23, 2022, Plaintiff Discover Bank (“Plaintiff”)
filed a complaint against Defendant Leslie Molina (“Defendant.”) The complaint
alleged cause of action for common counts. Plaintiff alleges that Defendant
entered into a Loan Agreement with Plaintiff. However, Plaintiff has failed to
make payments on the loan, resulting in a balance of $25,249.65 of unpaid
debts.
On April 7, 2022, Defendant Leslie Molina filed an Answer.
The current Motion for Summary Judgment was filed on May 12,
2022. As of December 9, 2022, no opposition or reply has been filed.
LEGAL STANDARD:
The purpose of a motion for summary
judgment or summary adjudication “is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)
“On a motion for summary judgment,
the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1519.) For the
purposes of motion for summary judgment and summary adjudication, “[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.” (Code Civ. Proc., § 437c, subd. (p)(1).) “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.” (Code Civ. Proc., § 437c,
subd. (p)(1).) “When deciding whether to
grant summary judgment, the court must consider all of the evidence set forth
in the papers (except evidence to which the court has sustained an objection),
as well as all reasonable inferences that may be drawn from that evidence, in
the light most favorable to the party opposing summary judgment.” (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)
ANALYSIS:
Plaintiff moves for summary
judgment, or alternatively, summary adjudication, as to the causes of action
for open book and account stated. The complaint alleged one cause of action for
common counts.
“Common counts is an alternate
theory of recovery based on a contract that is either “implied in fact” or
“implied in law.”” (Katsura v. City of San
Buenaventura (2007) 155 Cal.App.4th 104, 109.) “A common count is not a
specific cause of action ...; rather, it is a simplified form of pleading
normally used to aver the existence of various forms of monetary indebtedness.”
(Professional Collection Consultants v.
Lujan (2018) 23 Cal.App.5th 685, 690.)
1. Account
Stated:
Plaintiff argues that the elements
for account stated have been satisfied.
“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.)
Plaintiff argues that there was a
previous agreement, the Loan Agreement, which was mailed to Defendant every
month and accurately reflects that Defendant was indebted to Plaintiff, and
Defendant failed to make payments as required under the agreement.
The court finds that Plaintiff has
met their burden of showing that there is no defense to the first cause of
action for breach of contract because Plaintiff has proved each element of the
cause of action entitling Plaintiff to judgment on that cause of action. First, Plaintiff has presented evidence that
there were previous transactions between the parties, i.e. the Loan Agreement. (UMF
1-5.) Second, Plaintiff has presented evidence to prove that there was an
agreement between the parties about the amount due, i.e., Plaintiff sent
records to Defendant with the billing statements periodically. (UMF 8-11.) Lastly,
Plaintiff has presented evidence to prove that there was a promise to pay the
amount due, i.e., make the monthly payments. (UMF 11-12.)
2. Open
Book:
Plaintiff argues that an open book
existed between the parties.
The essential elements of a cause
of action for open book are: (1) 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; (2) that shows the debits
and credits in connection therewith, and against whom and in favor of whom
entries are made; (3) that was entered in the regular course of business as
conducted by such creditor or fiduciary; (4) that has been kept in a reasonably
permanent form and manner; and (5) that is in a bound book, something like a
book, or is otherwise kept in any reasonably permanent form and manner. (Code
Civ. Proc., § 337a; Tsemetzin v. Coast
Federal Savings & Loan Ass’n (1997) 57 Cal.App.4th 1334, 1343.) A claim
for open book account requires transactions arising “out of a contract or some
fiduciary relation” with the defendant. (Professional
Collection Consultants v. Lujan (2018) 23 Cal.App.5th 685, 690-691.)
Plaintiff argues that an open book
existed as the business records, although computerized, were kept in the
regular course of business. These records were then generated into a billing
statement, which was then sent to Defendant. These statements indicated the
principal balance as well as payments on the account. (Motion 7: 8-18.)
The Court finds that Plaintiff has
established the elements for an open book account. First, Plaintiff has
established that there was a detailed statement that contains the records of
the transactions between the two parties. (UMF 21.) Second, this statement
shows the debits and credits. (UMF 21, 23, 25.) Third, as the Declaration of
Mark R. Mower, the Litigation Support Specialist for Discover Products Inc.,
states, these documents are maintained in the ordinary course of business, updated
periodically, and generate period statements that are stored in the Discovery
system. (UMF 22.) Fourth, as Mark Mower states, these documents are stored in a
record-keeping system, which is a reasonably permanent form. (UMF 22.) Lastly,
the system is computerized and thus stored in a performant form and manner.
(UMF 22.)
Plaintiff has established that
there are no triable issues of material fact and that all elements of the above
causes of action have been met.
Therefore,
Motion for Summary Judgment is GRANTED.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Motion for
Summary Adjudication is GRANTED.
Moving party is to give notice and to prepare a judgment.
IT IS SO ORDERED.
Dated: December
14, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court