Case Name: Wells Fargo Bank, N.A. v. Ivy Casaje
Case No.: 19CV341852

This is a credit card collection action. Plaintiff Wells Fargo Bank, N.A. (“Wells Fargo”) alleges that, in response to a request from Defendant Ivy Casaje (“Defendant”), it extended a line of credit and issued a credit card to Defendant for her use on or about June 21, 2009. Defendant used the card for several years, with Wells Fargo sending her monthly statements showing her purchases and the amount owed. Eventually Defendant stopped making payments after July 2018 with $25,118.03 now owed to Wells Fargo.

In its original and still operative Complaint filed January 16, 2019 Wells Fargo states two cause of action two causes of action: 1) Breach of Contact (a visa credit card agreement, alleging a failure to pay the $25,118.03 now owed), and; 2) Common Counts (seeking the same amount). Attached to the Complaint as exhibit 1 is a copy of Wells Fargo’s “Consumer Credit Card Customer Agreement & Disclosure Statement.” The Agreement states in pertinent part on page 1: “This contract for your credit card account (‘Account’) includes the Credit Card Agreement (‘Agreement’), the Important Terms of Your Credit Card Account and future amendments to this Agreement. This Agreement is a contract between Wells Fargo, N.A. and each Account holder. You and any joint Account holder accept the terms of this Agreement by using or activating your Account.” (Court’s emphasis.)

Defendant filed an Answer on March 26, 2019 denying liability and asserting various affirmative defenses. Wells Fargo now moves for summary judgment. Defendant has filed an opposition to the motion.

Request for Judicial Notice
In support of the motion for summary judgment Wells Fargo has submitted a request for judicial notice of two documents (exhibits A & B to the request) pursuant to Evidence Code §§452(d) and 453. Exhibit A is a copy of the Complaint (with exhibits) and exhibit B is a copy of the proof of service of summons.

Notice of both documents is GRANTED pursuant to Evidence Code §452(d).

Motion for Summary Judgment
The pleadings limit the issues presented for summary judgment. The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

Where a plaintiff (or cross-complainant) seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP §437c(p)(1); See Hunter v. Pacific Mechanical Corp. (1995) 37 Cal App 4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra, at p. 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact].) At that point, the burden shifts to the defendant (or cross-defendant) to show that a triable issue of one or more material facts exists as to that cause of action. (CCP §437c(p)(1).)

“There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.) To be material for summary judgment purposes, a fact must relate to some claim or defense in issue under the pleadings. Also it must be in some way essential to the judgment; i.e., if proved, it could change the outcome of the case. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.)

Plaintiff’s Wells Fargo’s motion for summary judgment is GRANTED as follows.

The evidence submitted by Wells Fargo, a declaration from loan adjustor Megan Scott and the attached exhibits, meet its initial burden to show that there are not triable issues of material fact.

Ms. Scott states that, as part of her duties as a Loan Adjustor, she is familiar with the usage and record keeping systems for Wells Fargo and the process by which the information is transmitted by the merchant and or bank to Wells Fargo. (Scott Decl. at ¶2.) She is also responsible for monitoring the legal processes for credit card accounts along with research and review of the relevant business records. As part of her duties, she researches specific account issues including, but not limited to a consumer’s past due accounts, consumer disputes with respect to the account, as well as charges made and payments received on the account. (Id.) She states that she has acquired personal knowledge of the matters stated in the declaration by personally examining the business records relating to Defendant’s account, which are kept by Wells Fargo in the regular course of business.

Based on her review of those records relating to Defendant’s account, she states that in response to a request from Defendant, Wells Fargo sent Defendant a credit card along with a copy of the Agreement. The account was opened on or about June 21, 2009. Defendant accepted the terms and conditions of the Agreement by using the credit card to charge for goods and services. Wells Fargo’s internal computer system generated, kept and sent statements to Defendant showing the debits and credits incurred on the credit card account. There is no record of Defendant ever disputing a charge, credit, or balance due on the credit card account since it was opened. (Scott Decl. at ¶¶3-11.) She concludes by stating that “Defendant made payments of principal and interest on the Account up and through July 6, 2018, the last payment of which was for $500.00. Following this date, no further payments were made on the Account, and a balance of $25,118.03 remains due and owing. As of today’s date [the declaration was signed July 26, 2019], defendant has incurred a balance of $25,118.03 on the account and has failed to pay t or any part of it.” (Scott Decl. at ¶¶12-13, brackets added.)

Ms. Scott authenticates two attached exhibits: exhibit A (a copy of the Credit Card Agreement sent to Defendant and accepted by her through use of the card) and exhibit B (copies of all of the credit card statements sent to Defendant). Copies of both exhibits are also submitted with Wells Fargo’s packet of evidence submitted in support of the motion. Exhibit A is the same document that is attached to the Complaint as exhibit 1. Exhibit B consists of approximately 400 pages of monthly credit card statements. These statements confirm that Defendant, through her repeated use of the card from June 2009 until July 2018, accepted the credit card agreement and that $ 24,472.98 remained due and owing when the account was closed by Wells Fargo.

This declaration adequately establishes Ms. Scott’s personal knowledge of the attached records and their authenticity as records generated and kept by Wells Fargo in the regular course of business. The attached records demonstrate that the Agreement was accepted by Defendant through conduct—her use of the credit card (with her use of the card shown in the monthly statements); that Defendant was sent monthly statements showing the charges made and the amount owed at the address she provided, and that she eventually stopped making payments and stopped using the card, but with $25,118.03 (the principal debt plus accrued interest) still owed to Wells Fargo. This failure to pay money owed under the Agreement constitutes a breach of the Agreement (an enforceable contract) and also satisfies the criteria for common counts, specifically open book account and account stated.

“The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391, internal quotation marks omitted.)

“A common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” (Utility Audit Co v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.) The elements of an open book account cause of action are: (1) that plaintiff and defendant had a financial transaction; (2) that plaintiff kept an account of the debits and credits involved in the transaction; (3) that defendant owes plaintiff money on the account; and (4) the amount of money that defendant owes plaintiff. (See CACI No. 372.) “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. [Citations.] To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ [Citation.]” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.)

When the burden shifts to Defendant, she is unable to raise any triable issues of material fact as she has not submitted any evidence. The Opposition simply asserts that the Megan Scott declaration is insufficient to meet Wells Fargo’s initial burden. It is not enough to simply raise an issue as to the credibility of the moving party’s declarations. Summary judgment may not be denied on grounds or credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment. (See CCP §437c(e); Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 632; Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 496.) An opposition that contains no evidence, but simply asserts a right to jury trial on the issues involved, is also insufficient. (Shepard v. Jones (1982) 136 Cal.App.3d 1049, 1062.) That the moving party’s declarations are self-serving is not enough to prevent summary judgment. Unless controverted, those declarations must ordinarily be accepted as true on summary judgment. (Trujillo, supra, 157 Cal.App.4th at p. 636.) Defendant, by failing to submit any evidence at all, has failed to controvert Plaintiff’s evidence (the Megan Scott Declaration) and that evidence is sufficient to meet Plaintiff’s initial burden.

The Court notes that Defendant has submitted objections to the Megan Scott declaration with her opposition. These objections do not comply with Cal. Rule of Court 3.1354, which requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule. As the objections submitted do not comply with the Rule the Court will not rule on them. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)