2015-00182251-CL-CL

Bank of America vs. Phuong D. Nguyen

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

Filed By: Brodbeck, Lori

Plaintiff Bank of America, N.A.’s unopposed motion for summary judgment, or in the alternative for summary adjudication, is granted.

In this consumer credit collection action, Plaintiff alleges causes of action for open book, account stated and breach of contract arising out of a consumer credit card agreement.

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; Code Civ. Proc. § 337a.)

Account stated requires 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.)

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.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1005.)

Plaintiff’s evidence shows that Defendant Phoung Nguyen opened a credit card account with Plaintiff or a predecessor-in-interest. Money was advanced to Defendant and Defendant promised to repay those sums. 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. Defendant currently owes $8,364.93.

Plaintiff bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. 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 his burden. (See, e.g. Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685, 690.) Plaintiff, therefore, is entitled to judgment as a matter of law.

The Court will sign the proposed judgment and order. Plaintiff may seek costs pursuant to the Rules of Court after judgment is entered.