Case Name: Bank of America, N.A. v. Jianping Liu, et al.
Case No.: 2015-1-CV-280345

I. Background

This is a collections action brought by Bank of America, N.A. (“Plaintiff”) against Jianping Liu (“Defendant”). According to the allegations in the complaint, Plaintiff is owed an outstanding debt based upon Defendant’s execution of an agreement for the use of a credit card account. Plaintiff advanced money to Defendant for purchases, cash advances, and balance transfers and he agreed to pay in accordance with the cardholder agreement, but subsequently failed to do so. As a result, Defendant owes Plaintiff the outstanding balance of $32,710.78.

On May 7, 2015, Plaintiff filed a form complaint asserting causes of action for breach of contract and common counts for money due based on an open book account and an account stated. On April 15, 2016, Plaintiff filed the instant motion for summary judgment, or in the alternative, summary adjudication and an accompanying request for an award of costs.

II. Plaintiff’s Motion for Summary Judgment and/or Summary Adjudication

A. Legal Standard for Motion for Summary Judgment and/or Adjudication

A plaintiff moving for summary judgment bears the initial burden of production, which requires him or her to present evidence demonstrating there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (“Aguilar”) (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment also bears the burden of persuasion, and must establish each element of any cause of action alleged, and that there is no defense thereto. (Code Civ. Proc., § 437c, subd. (a)(1), (p)(1); see also Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff, who bears the burden of proof at trial by a preponderance of the evidence, must therefore “present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not – otherwise he [or she] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at p. 851.)

If a plaintiff satisfies its initial burden of production and persuasion, the burden then shifts to the defendant to show there is a triable issue of material fact as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact.” (Wiz Technology, Inc. v. Coopers & Lybrand, LLP (“Wiz”) (2003) 106 Cal.App.4th 1, 11.) “To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue.” (Ibid.; see also Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894-95 [separate statement must specify evidence supporting each fact identified as disputed or undisputed.]) “Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz, supra, 106 Cal.App.4th at p. 11.) The nonmoving party must do more than contest the credibility of the moving party’s evidence. (Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635-36.) The party opposing the motion for summary judgment must present evidence that controverts or contradicts the evidence presented by the moving party, thereby establishing there is a triable issue of material fact. (Ibid.)

“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 judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) When a party cannot satisfy this requirement as to each cause of action in the complaint, the party may move for summary adjudication of an individual cause of action in the alternative. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 236.) “A summary adjudication works the same way [as a motion for summary judgment], except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

B. Objections to Evidence

Defendant filed a document entitled “Defendant’s Objections to Plaintiff’s Evidence” wherein he purports to object to the evidence Plaintiff submitted in support of its motion for summary judgment and/or adjudication.

In connection with a motion for summary judgment, a party must clearly state the specific ground for an objection to evidence. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 764, fn. 6, citing Evid. Code, § 353, subd. (a).) If a party fails to do so, its objection may be overruled. (Cole v. Town of Los Gatos, supra, 205 Cal.App.4th at p. 764, fn. 6.) When objecting to evidence in opposition to a motion for summary judgment or adjudication, each written objection must: (1) identify the document in which the objectionable material is located; (2) state the exhibit, title, page, or line number of the objectionable material; (3) quote or set forth the objectionable statement; and (4) state the ground for the objection. (Cal. Rules of Court, rule 3.1354(b).)

Defendant first objects to Plaintiff’s evidence by stating: “The Complaint does not specify the alleged account number under which this defendant is being sued.” In making this statement, Defendant is attempting to dispute a fact presented by Plaintiff and does not actually present an evidentiary objection. Defendant neither states a ground for an objection nor identifies the specific material that is objectionable. Moreover, Defendant’s statement is factually inaccurate as the complaint states the account for which he owes an outstanding balance is the account ending in 1308. Defendant’s objection lacks merit and is therefore overruled.

Defendant’s second and final objection relates to a change in his account number that is reflected in Plaintiff’s evidence. In its supporting declaration, Plaintiff states Defendant owes $32,710.78 on an account ending in 8002. (Parnell Decl., ¶ 5.) The credit card statements showing an outstanding balance of $32,710.78 indicate the balance is on an account ending in 1308. (Parnell Decl., Exh. A.) Plaintiff also states it was standard practice to change an account number once the account became delinquent, or was “charged off,” and that in accordance with this standard practice, Defendant’s account number was changed from one ending in 1308 to one ending in 8002 once it became delinquent. (Parnell Decl., ¶ 6.) Defendant argues Plaintiff failed to provide him with documentary evidence of the change in the account number. As with his other objection, Defendant neither articulates the specific evidence he is objecting to nor the ground for his objection. Defendant’s objection therefore lacks merit and is overruled.

C. Substantive Analysis

1. Plaintiff’s Initial Burden

Plaintiff moves for summary judgment and/or adjudication of its common counts claims based on an open book account and an account stated and its breach of contract claim.

“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.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) The elements of a common count claim include: “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

There are different types of common count claims. A common count claim may be based on an account stated or an open book account. (Carranza v. Noroian (1966) 240 Cal.App.2d 481, 484.) A book account is a detailed statement of debits and credits on an account from which “‘it can be reasonably determined what amount is due to the claimant.’ [Citation.]” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) A book account is considered open if the debtor has made some payments, but has not paid the full outstanding balance on the account. (Ibid.) “The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Ibid.)

Actions on open book accounts frequently arise from a series of transactions that also constitute an account stated. (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 753.) “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.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) “An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing.” (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d at p. 752.) “When a statement [of indebtedness] is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered.” (Id. at p. 753.)

As for a breach of contract claim based on an obligation to repay an amount owed, a plaintiff must prove the following elements: (a) the existence of a contract and the terms which establish the obligation at issue; (b) the plaintiff’s performance or excuse for non-performance and occurrence of any condition precedent; (c) the defendant’s breach; and (d) resulting damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Here, Plaintiff presents credit card statements for the account number ending in 1308 from November 2009 through March 2014, which show both purchases made using the card, cash advances, and balance transfers constituting charges on the count as well as payments made on the account. (Parnell Decl., Exh. A.) Defendant is identified as the cardholder on these statements. (Parnell Decl., Exh. A.) The bank statements and declaration of the custodian of records show Defendant last made a payment on the account on August 9, 2013 and that he owes an outstanding balance of $32,710.78. (Parnell Decl., ¶¶ 5, 7, Exh. A.) These credit card statements constitute an open book account because they show charges and credits on the account, including payments, from which it can reasonably be determined Defendant owes Plaintiff $32,710.78.

The credit card statements also demonstrate Plaintiff and Defendant had a creditor-debtor relationship for purposes of establishing the common count claim based on an account stated. Plaintiff must also show, however, there was an express or implied agreement between the parties as to the balance due and Defendant promised to pay the agreed upon amount due. Here, Plaintiff presents an unsigned cardholder agreement that does not bear a name, date, or signature. (Parnell Decl., Exh. A.) Pursuant to the cardholder agreement, use of the credit card through purchases, cash advances, or balance transfers constitutes acceptance of the terms of the cardholder agreement. (Parnell Decl., Exh. A.) The terms of the cardholder agreement state the person whose name appears on the statement is liable for the full balance due, agrees to the accuracy of the transaction records, and must pay for all transactions on the account. (Parnell Decl., Exh. A.) Plaintiff also submits letters from December 2009 to September 2013 addressed to Defendant and bearing the account number ending in 1308 detailing modifications to the terms and conditions of Defendant’s cardholder agreement and explaining Defendant’s rights with respect to the credit card and Plaintiff’s billing practices. (Parnell Decl., Exh. A.) Accordingly, the credit card statements, which show use of the credit card and thus assent to the cardholder agreement, demonstrate Defendant agreed to pay the outstanding balance on the credit card and agreed to the accuracy of the transaction records. Plaintiff has thus established the elements of an account stated.

The evidence presented by Plaintiff therefore shows Defendant is indebted to Plaintiff in the amount of $32,710.78, consideration in the form of money advanced for cash advances, balance transfers, and purchases Defendant made using the credit card, and Defendant’s failure to pay the outstanding balance. In addition to establishing the elements of its common count claims, Plaintiff’s evidence establishes its breach of contract claim as well. Specifically, Plaintiff’s evidence shows the parties had an agreement, the cardholder agreement, Plaintiff advanced money on Defendant’s behalf in performance of its promises under the cardholder agreement, Defendant breached the agreement by failing to pay the full outstanding balance on the credit card, and Plaintiff was damaged in the amount Defendant failed to pay, $32,710.78. Plaintiff has thus carried its initial burden on its motion for summary judgment and/or adjudication with respect to each of its claims. The burden now shifts to Defendant to show there is a triable issue of material fact.

2. Defendant’s Burden in Opposition

The only evidence Defendant presents in opposition to Plaintiff’s motion is his declaration. (See Liu Decl., ¶¶ 1-8.) Defendant does not dispute he was the cardholder, was bound by the terms of the cardholder agreement, or owes the outstanding balance of $32,710.78. Defendant does not challenge any individual credit card statements or charges and credits to his account. In his separate statement, he affirmatively admits Plaintiff issued him a credit card.

In his declaration, Defendant states he spoke with the bank on the phone about a dispute that “arose between the Plaintiff and the undersigned as to the accuracy/authenticity of credit card statements.” (Liu Decl., ¶ 4.) As an initial matter, it is unclear what Defendant is attempting to establish with this statement. He does not address its significance in his opposition or even cite it in his opposing separate statement in response to Plaintiff’s statement of undisputed facts. This statement appears to be a general challenge to the credibility of evidence presented by Plaintiff, but does not directly controvert any of the elements of Plaintiffs claim, contradict any specific item of evidence, or dispute a particular credit card statement presented by Plaintiff. This statement does not therefore raise a triable issue of material fact.

Defendant also states he was not informed of the charge off and subsequent modification of his account number. (Liu Decl., ¶ 7.) This statement also does not controvert an element or item of evidence. Defendant does not explain and it is not otherwise apparent how his lack of knowledge of Plaintiff’s account number protocols raises a triable issue of material fact. Moreover, Defendant does not dispute his account number was previously the account number ending in 1308 or that he is liable for the charges on that account. Defendant has therefore failed to raise a triable issue of material fact in this regard as well.

Finally, Defendant indicates in his declaration that he intends to conduct discovery. (Liu Decl., ¶¶ 5-6, 8.) Defendant’s intent to conduct discovery is not material and does not constitute evidence contrary to the evidence presented by Plaintiff as to any of the elements of its claims. Defendant’s statement in this regard also fails to raise a triable issue of material fact.

None of the evidence presented by Defendant raises a triable issue of material fact. The motion for summary judgment is therefore GRANTED.

III. Plaintiff’s Request for Costs

Plaintiff requests an award of costs in the amount of $1,088.50 pursuant to Code of Civil Procedure section 1032, subdivision (b) which states: “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Prevailing party is defined as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc., § 1032, subd. (a)(4).) Plaintiff’s request is not presented as an elemental component of its motion for summary judgment because the amount of costs requested is not reflected in its separate statement or proposed order on its motion. Instead, the amount of costs requested appears in its proposed final judgment, which suggests it is requesting costs it is requesting costs for inclusion in the final judgment.

Pursuant to California Rules of Court, rule 3.1700(a)(1): “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” Additionally, “[t]he memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”

Plaintiff presumably is requesting costs as the party with a net monetary recovery. Even so, judgment has not yet been entered in this case and Plaintiff has not filed a memorandum of costs or supporting declaration verifying the items of cost requested as required by rule 3.1700. In fact, Plaintiff offers no information whatsoever, other than the total amount of costs it is requesting, in any of the papers filed with the Court. Plaintiff’s request thus does not comply with the relevant procedures in terms of timing or substance.

The request for costs is therefore DENIED without prejudice to Plaintiff filing a memorandum of costs after entry of judgment.
After Plaintiff has served notice of entry of this order signed by the Court, Plaintiff shall submit a proposed judgment????

The Court will prepare the order.