Judge Walter P. Schwarm, Case 30-2021-01232597 2022-10-25 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01232597, Date: 2022-10-25 Tentative Ruling

Plaintiff’s (Discover Bank) unopposed Motion for Summary Judgment or in the Alternative Summary Adjudication (Motion), filed on 4-26-22 under ROA No. 31 is GRANTED. The Notice of Motion was filed on 4-26-22 under ROA No. 33.

Code of Civil Procedure section 437c, subdivision (p)(1), provides, “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. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 850-851 (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Footnotes 13 and 14 omitted; Italics in Aguilar.)

Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (Consumer Care), explains, “ ‘ “ [T]here is no obligation on the opposing party (plaintiffs here) to establish anything by affidavit unless and until the moving party has by affidavit stated ‘ “facts establishing every element [of the affirmative defense] necessary to sustain a judgment in his favor. . . .” ’ ” ’ . . .” (Italics in Consumer Care.)

Plaintiff moves for summary judgment or, in the alternative, summary adjudication as follows: (1) first cause of action for open book account, (2) second cause of action for account stated. (Notice; 2:3-15.)

The Complaint, filed 4-20-21 under ROA No. 2, alleges a cause of action for common counts based on account stated and open book account based on an account ending in 1065.

State Compensation Insurance Fund v. ReadyLink Healthcare Inc. (2020) 50 Cal.App.5th 422, 449 (State Compensation), states, “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].” (CACI No. 372.) For every cause of action that SCIF has asserted, SCIF must establish the amount of money due (in the form of damages, reasonable value of services, or money due on an open book account).”

Leighton v. Foster (2017) 8 Cal.App.5th 467, 491 (Leighton) states, “ ‘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. [Citations.]’ [Citation.]”

Issue 1- Open Book Account Based on Account 1065:

Plaintiff has provided the following evidence as to its common counts cause of action based on an open book account: (1) In October of 2018, Defendant (Osvaldo Garcia) “. . . established an account with Discover . . . .” (Plaintiff’s Separate Statement (PSS) filed on 4-26-22 at ROA No. 27; PSS No. 1, Matthews Decl., ¶ 5 and Exhibit A.); (2) As the account holder, Defendant agreed to be individually liable for the amount on the account by agreeing to the terms of the loan agreement. (PSS No. 7; Matthews Decl., ¶ 7 and Exhibit B.); (3) Plaintiff and Defendant had financial transactions on the account ending in 1065 as shown by the account statements. (PSS No. 8; Matthews Decl., ¶ 8 and Exhibit C.); (4) Plaintiff kept an account of the debits and credits involve in the transactions for the account ending in 1065. (PSS Nos. 8; Matthews Decl., ¶ 8 and Exhibit C.); (5) Defendant has failed to make the regular payments, and owes $29,150.27 on the account ending in 1065. (PSS No. 12; Matthews Decl. ¶¶ 9, 11, and Exhibit and D.)

This evidence is sufficient to meet Plaintiff’s initial burden of proving each of the elements of its common counts cause of action based on an open book account. Defendant did not oppose the Motion. Therefore, Defendant has failed to raise a triable issue of material fact as to any of the elements for an open book account, or a defense to Plaintiff’s cause of action for common counts based on an open book account. Therefore, the court GRANTS the Motion for Summary Adjudication as to Issue No. 1.

Issue 2 – Account Stated Based on Account 1065:

Based on the evidence described in Issue No. 1, Plaintiff has met its initial burden of proving each of the elements of its common counts cause of action based on account stated. (See PSS Nos. 14, 18, 20, 21, and 25.) Defendant did not oppose the Motion. Therefore, Defendant has failed to raise a triable issue as to any of the elements for a common counts cause of action based on an account stated, or a defense to Plaintiff’s cause of action for common counts based on an account stated. Therefore, the court GRANTS the Motion for Summary Adjudication as to Issue No. 2.

Since the court has granted Plaintiff’s Motion for Summary Adjudication as to Issue Nos. 1 and 2, the court GRANTS Plaintiff’s Motion for Summary Judgment in the amount of $29,150.26.

In summary, the court GRANTS Plaintiff’s (Discover Bank) unopposed Motion for Summary Judgment or in the Alternative Summary Adjudication, filed on 4-26-22 under ROA No. 31, in the amount of $29,150.27.

Plaintiff is to give notice.