18-CLJ-02342 CITIBANK, N.A. VS. ENRIQUE C. IGLESIAS

CITIBANK, N.A. ENRIQUE C IGLESIAS
DEVIN JACOBSEN PRO/PER

CITIBANK, N.A.’S MOTION FOR JUDGMENT ON THE PLEADINGS TENTATIVE RULING:

The motion for judgment on the pleadings is DENIED.

Plaintiff’s motion is for judgment on the pleadings “per the complaint.” (Notice of Motion at 1:24-25.) It does not seek judgment on the pleadings as to any individual cause(s) of action. Therefore, the motion must be deemed to attack only the complaint in its entirety. The Complaint alleges claims for open book account, account stated, money lent, and money paid at Defendant’s request. (Complaint ¶¶ CC-1(a) & CC-1(b).) The motion against the entire complaint can be granted only if it defeats all causes of action. The motion is denied because it fails to dispose of three of the four causes of action. A. The Motion Establishes that Defendant Owes $3,321.48 to Plaintiff for “Money Paid.”

The Complaint sufficiently alleges a claim for money paid, but Defendant’s general denial is sufficient to defeat a plaintiff’s motion for judgment on the pleadings. A plaintiff’s motion for judgment on the pleadings must be denied if the defendant’s pleadings raise a material issue or set up affirmative matter constituting a defense. The trial court must treat all of defendant’s allegations as being true, and since the moving party admits the untruth of his own allegations insofar as they have been controverted, all such allegations must be disregarded. (MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 812-13.)

Since Defendant’s denial places the allegations in issue, the motion must demonstrate that the denial lacks merit. The Court grants Plaintiff’s Request for Judicial Notice of the Order Deeming Matters Admitted. That Order, however, does not indicate what is admitted. It merely states “Plaintiff’s motion is granted. The genuineness of any documents and the truth of any matters in the requests for admission are deemed. (sic)” The Court, on its own motion, takes judicial notice of Plaintiff’s underlying motion to deem matters admitted, filed September 19, 2018, which shows that the five facts supporting this motion are the same five matters that were deemed admitted. Those facts are sufficient to overcome Defendant’s general denial in his Answer as to those admitted matters. The judicially noticed matter is sufficient to entitle Plaintiff to judgment on the pleadings as to the claim for money paid for defendant at defendant’s request. (See Complaint ¶ CC-1(b)(5).)

B. The Motion Fails to Dispose of any Other Cause of Action.

1. 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. § 337a.)

The Complaint sufficiently alleges an open book account, but Defendant’s Answer asserts a general denial. 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 a claim for open book account. Unlike the claim for money paid, the motion does not establish by admissions the existence of any open book account.

3. 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. Plaintiff’s motion offers no evidence conclusively overcoming his denial. The motion establishes that Plaintiff sent periodic statements to Defendant, but it does not establish that Defendant failed to object to any of them in a reasonable time. The motion fails to establish the existence of an account stated.

3. Money Lent. A common count for money lent is proven by showing that the defendant became indebted to the plaintiff in a particular amount for money loaned by plaintiff to the defendant at defendant’s request. (See Moya v. Northrup (1970) 10 Cal.App.3d 276, 278.) The Complaint alleges a debt for money lent, but Defendant’s general denial places the allegation at issue. The motion offers no pleadings or judicially noticeable matter to show that Plaintiff lent money to Defendant. The claim for money lent is not established by this motion. C. Ruling

The motion sufficiently establishes entitlement to judgment on the pleadings only as to the common count for money paid. Since the Notice of Motion specifies only that it attacks the entire complaint, and gave no notice of intent to move against individual cause(s) of action, the motion for judgment on the pleadings as to the entire complaint is denied.