Case Name: Wells Fargo Bank, N.A. v. Cavender
Case No.: 18CV334627

Plaintiff Wells Fargo Bank, N.A. (“Wells Fargo” or “Plaintiff”) moves for summary judgment in its favor and against defendant Matt M. Cavender (“Defendant”).

I. Factual and Procedural Background

This is a collection action in which Plaintiff has asserted claims for breach of contract and common counts against Defendant. According to the Judicial Form Complaint filed by Plaintiff on September 11, 2018, Defendant applied for and obtained a line of credit from Plaintiff with the issuance of a credit card. Defendant subsequently utilized the card but failed to make all payments due on the amounts owed. Wells Fargo filed the instant motion on March 11, 2019. Defendant filed a late opposition on May 31, 2019.

II. Plaintiff’s Motion for Summary Judgment

A. Legal Standard

The party moving for summary judgment bears the initial burden of production to make a prima facie case showing that there are no triable issues of material fact – one sufficient to support the position of the party in question that no more is called for. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been proved, and hence there is no defense thereto. (Code Civ. Proc., § 437c.) Plaintiffs, who bear the burden of proof at trial by preponderance of evidence, therefore “must present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not- otherwise he 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 851.) The defendant has no evidentiary burden until the plaintiff produces admissible and undisputed evidence on each element of a cause of action. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013), ¶ 10:238.) If the plaintiff meets this initial burden, it then shifts to the defendant to “show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).)

B. Analysis

As stated above, Plaintiff asserts claims for breach of contract and several common counts- open book, account stated, money had and received, for goods sold and delivered and for money lent. All of the causes of action asserted in the complaint are based on the same set of facts, which is notable for the purpose of determining whether Plaintiff has met its initial burden because “where the common counts follow a count wherein all of the facts on which plaintiff’s demand is based are specifically pleaded and the common counts upon their face make clear that they are based upon the same set of facts, the common counts are to be considered not as different causes of action, but as alternative methods of pleading the plaintiff’s right to recover the money judgment he seeks.” (Maselli v. E.H. Appleby & Co. (1953) 117 Cal.App.2d 634, 637.) Thus, if Plaintiff submits admissible evidence which establishes each of the elements of its breach of contract claim, which precedes the common counts, it has met its initial burden on this motion.

The elements of a claim for breach of contract are: (1) the existence of a contract between the plaintiff and the defendant; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damages to the plaintiff as a result of the breach. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) Plaintiff submits evidence which establishes each of the foregoing elements, to wit: Defendant applied for a line of credit from Plaintiff and, in response to his request, was issued a credit card on July 14, 2016. (Plaintiff’s Separate Statement of Undisputed Material Facts in Support of MSJ/MSA (“UMF”) No. 1.) Mailed with the card was a copy of the cardholder agreement, which provided, in pertinent part, that activation or use of the card constituted acceptance of the terms contained therein. (UMF No. 2.) As Well Fargo notes, an agreement may be accepted by an act other than signing it. (Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 532.) The agreement further provided that Defendant was extended credit whereby he could charge goods, services, and/or cash advances in exchange for the repayment of the principal amount plus interest and finance charges. (UMF No. 6.) Plaintiff performed all of its obligations under the agreement by extending credit to Defendant. (UMF No. 7.) Defendant activated the card (thereby accepting the terms of the agreement) and made charges and payments on the subject account, incurring a balance. (UMF No. 8.) Monthly statements on the account were mailed by Plaintiff to Defendant which itemized all the debits and credits, the total credit limit, the amount of available credit, the outstanding balance and the interest calculated for that month. (UMF No. 6.) At no point did Defendant dispute any of the charges, monthly billings, or purchases credited to his account. (UMF No. 9.) Defendant stopped making payments towards the balance on the account after March 9, 2018, leaving an unpaid balance of $7,709.64. (UMF Nos. 10, 11.) With Plaintiff having established each of the requisite elements of this claim, the burden shifts to Defendant to raise a triable issue of material fact.

To this end, Defendant fails to do so. The bulk of the foregoing facts established by Plaintiff’s evidence are undisputed by Defendant. The only facts that are “disputed” are not truly disputed, as Defendant does not deny that he incurred a balance on the credit card, stopped making payments after March 9, 2018, and therefore breached the agreement by failing to pay as agreed, leaving an unpaid balance of $7,709.64. Defendant maintains that he has been attempting in good faith to repay the balance owed through negotiating a new repayment structure, but this has no bearing on whether there is a triable issue of material fact with regards to Plaintiff’s breach of contract claim. Because Defendant fails to demonstrate the existence of a triable issue of material fact, summary judgment in Plaintiff’s favor is warranted. The Court notes that pursuant to the terms of the subject agreement, Plaintiff is entitled to recover from Defendant reasonable attorney’s fees and court costs incurred in this action. (UMF No. 4.)

In accordance with the foregoing, Plaintiff’s motion for summary judgment is GRANTED. Defendant must pay $7,709.64, along with proved reasonable attorney’s fees and court costs, to Plaintiff within 90 days of this Order, unless the parties agree to a different timing arrangement.