17-CLJ-00841 SAN MATEO CREDIT UNION VS. LAURIANNA DIAZ, ET AL.

SAN MATEO CREDIT UNION LAURIANNA DIAZ
ALEXANDRIA C CARRAHER PRO/PER

MOTION FOR SUMMARY OF JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION TENTATIVE RULING:

Plaintiff SMCU’s motion for summary judgment or, in the alternative, summary adjudication, is DENIED.

Plaintiff has failed to provide sufficient evidence supporting its claims for breach of contract and money lent. With respect to the breach of contract claim, Plaintiff has failed to provide the court with evidence of an executed or otherwise binding agreement between the parties. Instead, Plaintiff has provided a one-page “Membership Application and Agreement” that appears to be an application for an account with Plaintiff. Notably, the application makes no reference to a line of credit. Plaintiff also relies on (1) an unsigned “Open End Loan Plan Agreement and Truth in Lending Disclosure,” and (2) monthly account statements from August 2016 to January 2017. None of these documents, however, establishes the existence of a binding contract between the parties on the terms alleged by Plaintiff. Further, although Plaintiff has not produced the written agreement, it also has not provided any argument or authority supporting its attempt to establish the existence of the agreement by secondary evidence.

With respect to the claim for money lent, there is some question in California as to whether breach of a credit card cardmember agreement may support a common counts cause of action. Prof’l Collection Consultants v. Lauron, 8 Cal. App. 5th 958, 971, 214 Cal. Rptr. 3d 419, 430 (Ct. App. 2017). In any case, Plaintiff has failed to provide sufficient evidence to support its claim for money lent. Notably, Plaintiff has failed to identify the elements of a cause of action for money lent. One court, however, has explained the nature of proof that is typically required to assert a common counts cause of action in the jurisdictions that permit such actions to be brought with respect to credit card debt:

Typically, the creditor seeking recovery under an account stated theory provides the court with a credit card agreement, a final account statement, evidence that regular monthly statements were sent to the consumer at the address provided by the consumer, and evidence the consumer failed to object to those statements for a period of time. Credit One, L.L.C., 977 A.2d at 771; see also Citibank (S.D.), 708 N.Y.S.2d at 518–19 (holding that credit card company established a prima facie case by providing an affidavit the customer was regularly sent monthly statements, the customer never disputed the statements, and there was a remaining balance due). Proof the customer used the credit card is also recognized in some jurisdictions as an element of the prima facie case. McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex.Ct.App.2009).

Capital One Bank (USA), N.A. v. Denboer, 791 N.W.2d 264, 274 (Iowa Ct. App. 2010); Comercializadora Recmaq Limitada v. Hollywood Auto Mall, LLC, No. 12CV0945 AJB MDD, 2013 WL 2248140, at *16 (S.D. Cal. May 20, 2013) (noting that “regardless of which type of common count claim [the plaintiff] seeks to allege, the analysis is the same”).

In the present case, in addition to its failure to set forth the elements of its cause of action for money lent, Plaintiff has failed to (1) identify the specific statement of indebtedness that it relies on, (2) provide proof that Defendant failed to object to that statement within a “reasonable” time, (3) provide evidence that the statements were sent to the address provided by Defendant, or (4) produce the cardmember agreement. As a result, Plaintiff has failed to carry its burden of proving the elements of a cause of action for money lent.

Finally, while the issue is not yet ripe for decision, the court notes that Plaintiff is seeking to recover attorney’s fees in this action based on the parties’ agreement. Plaintiff’s proposed order states that “Pursuant to the contract, the Plaintiff is entitled to reasonable attorney’s fees and costs incurred in this action.” Plaintiff, however, does not indicate how it would be entitled to attorney’s fees absent production of a signed agreement authorizing such fees.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.