2009-00042053-CL-CL

American Express Bank, FSB vs. Toni Turner

Nature of Proceeding:      Motion for Summary Judgment and/or Adjudication
Nature of Proceeding:    Motion for Summary Judgment and/or Adjudication

Filed By:  Jun, Eric

Plaintiff American Express Centurion Bank’s unopposed motion for summary
judgment, or in the alternative, summary adjudication, is granted.

This is a credit card action in which Plaintiff asserts causes of action for open book
account and account stated.  The elements of an open book account require that
plaintiff prove all of the following:  (1) That plaintiff and defendant had a financial
transaction; (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 372, CCP § 337a.

Account stated require proof that: (1) defendant owed plaintiff money from previous
financial transactions; (2) That plaintiff and defendant, by words or conduct, agreed
that the amount stated in the account was the correct amount owed to plaintiff; (3) That
defendants, by words or conduct, promised to pay the stated amount to plaintiff; (4)
That defendant has not paid plaintiff any/all of the amount owed under this account;
and (5) The amount of money defendant owes plaintiff.  CACI 373.

Plaintiff’s separate statement includes the following.  Defendant Toni Turned opened
an American Express credit card account which was governed by a Cardmember
Agreement.  Plaintiff sent Defendant a copy of the Cardmember Agreement.
Defendant used the account to pay for goods and services and/or to obtain cash
advances.  Pursuant to the terms of the Cardmember Agreement, Defendant promised
to repay plaintiff for all charges, advances, fees, and interest on the account.  Plaintiff
sent Defendant billing statements every month.  Defendant failed to make the required
monthly payments.  There are no unresolved billing disputes on Defendant’s account.
Given Defendant’s failure to make the required payments, the entire account balance
of $19,383.04 is now due and owing to Plaintiff.

Plaintiff’s showing is sufficient to shift to defendant the burden of demonstrating the
existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co . (2001) 25
Cal.4th 826, 849.)  By failing to oppose Plaintiff’s motion, defendant cannot meet her
burden.  Plaintiff, therefore, is entitled to judgment as a matter of law.

The Court will sign the proposed order.  The Court, however, declines to sign the
proposed judgment as it includes a specific dollar amount for costs which must be
sought pursuant to the Rules of Court after judgment is entered.