19-CLJ-01663 AMERICAN EXPRESS NATIONAL BANK VS. VIRGINIA MORATA, ET AL.

AMERICAN EXPRESS NATIONAL BANK VIRGINIA MORATA
JESSICA M. GARCIA

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Plaintiff’s motion for summary judgment is DENIED. The complaint alleges the common count theories of open book account, account stated, goods sold and delivered and credit extended on account. However, the motion only addresses plaintiff’s open book account and account stated claims.

Plaintiff’s alternative motion for summary adjudication of the open book account and account stated claims is GRANTED. Plaintiff is entitled to judgement on these claims of $23,863.82. An open book account is: 1) a detailed statement entered during the regular course of business by the creditor, which constitutes the principal record of one or more transactions between a debtor and creditor arising out of a contract or some fiduciary relations that 2) shows the debits and credits in connection therewith and 3) is kept in a reasonably permanent form and manner.

The evidence in support of the motion establishes that defendant applied for a credit card, that she was mailed a copy of the card member agreement and that the agreement provides that use of the card constitutes acceptance of the agreement. After receiving the card, purchases were made and billing statements attached as Ex. B. Charges and payments were reflected in a computerized record kept by plaintiff and billing statements were sent to defendant on a monthly basis. Defendant defaulted in making payments due under the terms of the agreement so the entire unpaid balance became due. Defendant’s last payment was made on September 5, 2018 and the total amount due is $23,863.82.

To establish an account stated, plaintiff must prove 1) a debt owed by one party to the other at the time the statement is made 2) a balance then determined and agreed to be the correct sum due and 3) an express or implied promise to pay the amount due. Maggio, Inc. v. Neal, (1987) 196 Cal.App.3d 745. The amount agreed upon must be specifically stated or readily calculable. H. Russell Taylor’s Fire Prevention Service v. Coca Cola Bottling Co., (1979) 99 Cal.App.3d 711. In addition, the agreement as to the amount due can be implied from the circumstances. For example, where a statement is given to the debtor and no reply is made. Maggio, supra.

Plaintiff’s evidence in support of this claim is the same as above with the additional fact that there is no record of defendant asserting a valid and unresolved objection to the balance shown as due on the monthly statements provided to her.

Although defendant filed an opposition/declaration on January 9, 2020, it does not establish any triable issues of material fact. It merely states that this matter is in negotiation with Guardian Debt Relief and plaintiff has been notified that defendant is judgment proof. She has not filed any separate statement specifically addressing the material facts. Pursuant to CCP §437c(b)(3), this failure, alone, is sufficient to support granting the motion.