17-CLJ-04418 BANK OF AMERICA, N.A. VS. MARK A. HOWE, ET AL.

BANK OF AMERICA, N.A. MARK A. HOWE
ROBERT SCOTT KENNARD PRO/PER

MOTION FOR JUDGMENT ON THE PLEADINGS BY BANK OF AMERICA, N.A. TENTATIVE RULING:

The motion for judgment on the pleadings is denied. A. The Motion Establishes only the Balance on Defendant’s Account, but no Other Elements of Any Cause of Action.

Plaintiff has introduced judicially noticeable evidence that the Court granted Plaintiff’s motion to deem 4 matters admitted: (1) Defendant entered into an account with Bank of America, (2) Defendant authorized all transactions on the account, (3) the present balance is $5,005.59, and (4) Defendant’s last payment on the account was on April 16, 2017. These admissions are sufficient to establish amount of a debt, but not sufficient to entitle Plaintiff to judgment on the pleadings.

B. The Motion Fails to Dispose of Any Cause of Action.

The complaint alleges three common counts: open book account, account stated, and goods sold a delivered. A motion for judgment on the pleadings admits the truth of the opposing party’s pleadings. Defendant Howe filed an Answer that alleges a general denial. Generally, a general denial is sufficient to defeat a motion for judgment on the pleadings because the motion admits the defendant’s denial. The moving party admits the untruth of his own allegations in so far as they have been controverted, all such averments must be disregarded whether there is a direct and specific denial or an indirect denial by virtue of affirmative allegations of a contrary state of facts.” (MacIsaac v. Pozzo (1945) 26 Cal. 2d 809, 812-13.) 1. The Motion Does not Establish an Open Book Account.

A book account is a detailed statement of “transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. (Code of Civ. Proc. Sect. 337a.)
The Complaint sufficiently alleges an open book account, but Defendant’s Answer asserts a general denial. A plaintiff’s motion for judgment on the pleadings admits the truth of the Defendant’s denials. Since Defendant has denied the existence of an open book account, and Plaintiff’s motion offers no pleadings or judicially noticeable matter to conclusively overcome his denial, the motion fails to establish the existence of an open book account, as defined by Code of Civ. Proc. Sect. 337a.

2. The Motion Does not Establish an Account Stated.

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.” “[A]n element essential to render the account stated is that it receive the assent of both parties, but the assent of the party sought to be charged may be implied from his conduct.” (Professional Collection Consultants v. Lauron (2017) 8 Cal. App. 5th 958, 968.) The agreement to the balance may be shown by conduct, such as failing to object to a monthly statement sent by the creditor. (Zinn v. Fred R. Bright Co. (1969) 271 Cal. App. 2d 597, 600.)

The Complaint sufficiently alleges an account stated, but Defendant’s Answer asserts a general denial. Nothing in the pleadings or the Order Deeming Matters Admitted overcomes Defendant’s denial. The motion fails to establish the existence of an account stated. 3. The Motion Does Not Establish a Claim for Goods Sold. The essential elements of an action for goods had and received are (1) a statement of indebtedness of a certain sum, (2) the consideration made by the plaintiff, and (3) nonpayment of the debt. (Allen v. Powell (1967) 248 Cal. App. 2d 502, 510).) A common count for goods sold is a claim for payment for goods that were sold to the defendant. (See, e. g., Ben-Hur Mfg. Co. v. Empire Factors (1960) 181 Cal. App. 2d 123; Weitzenkorn v. Lesser (1953) 40 Cal. 2d 778, 792.) The common count for goods sold and delivered is generally a remedy for “one whose goods are wrongfully taken and used by another . . . .” (See Canepa v. Sun Pac. (1954) 126 Cal. App. 2d 706, 711.) The claim often arises when the plaintiff consents to taking of his property and “treats it as a sale, and recovers the value, due him under an implied contract of sale.” (Id. at 712.)

The Answer denies that any goods were sold or delivered to Defendant, and the Order deeming matters admitted does not cover any Request for Admission that any goods were sold or delivered. The motion fails to establish a claim for goods sold and delivered. C. Ruling

The motion is denied in its entirety.