2013-00146865-CL-CL

TD Bank USA vs. Kristiane Smith

Nature of Proceeding: Hearing on Demurrer

Filed By: Smith, Kristiane

Self-represented defendant Kristiane Smith’s unopposed demurrer to Plaintiff TD Bank
USA’s complaint is overruled.

This is a consumer credit action in which Plaintiff, pursuant to a form complaint,
alleges a single common count of account stated. Defendant demurs on the basis that
Plaintiff fails to allege facts sufficient to state a cause of action and that the complaint
is uncertain. Defendant also argues that Plaintiff failed to serve her within the time
stated in CRC, Rule 3.740(d).

“The essential elements of an account stated are: (1) previous transactions between
the parties establishing a relationship of debtor and creditor; (2) an agreement
between the parties, express or implied, on the amount due from the debtor to the
creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (
Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) Plaintiff’s form complaint
establishes these elements. Plaintiff alleged that it is the successor in interest to
Target National Bank, that Defendant became indebted to Plaintiff based on an
account stated in writing “by and between plaintiff and defendant in which it was
agreed that defendant was indebted to plaintiff.” (Comp. CC-1(a).) Plaintiff alleges the
specific account on which Defendant has become indebted “for the sum by which
Defendant has been unjustly enriched by virtue of Defendant receiving monetary or
other benefit, by Defendant knowingly requesting the funds at issue and/or accepting
the benefits bestowed. It is inequitable for Defendant to retain said benefits without
repaying Plaintiff the value thereof. (Id CC-1(b)(5).) Further, Plaintiff alleges that
“$1,760.59” is the balance due and owing despite Plaintiff’s demand. (Id. CC-2.)
Defendant’s contention that Plaintiff failed to allege the required elements or that the
complaint is uncertain is rejected. These allegations are sufficient under the authority
cited above. “It is no objection to the complaint that the times when the indebtedness,
or the various items therefof, accrued are not set forth. [citation omitted] If the
defendants desired further information on this point, the proper course was to demand
a bill of particulars.” (Moya, supra, at 280.)

Defendant also appears to argue that Plaintiff has no standing. Defendant is incorrect
as Plaintiff alleged that it is the successor in interest to Target National Bank and an
assignee stands in the shoes of the assignor. (Searles Valley Minerals Operations,
th
Inc. v. Ralph M. Parson Service Co. (2011) 191 Cal.App.4 1394, 1402.)

Further, the Court rejects Defendant’s argument that Plaintiff’s failure to attach the
written agreement to the complaint renders the complaint subject to demurrer pursuant
to CCP § 430.10(g). That section only allows for a demurrer where in an action
founded upon a contract is “cannot be ascertained from the pleading whether the
contract is written, is oral, or is implied by conduct.” (CCP § 430.10(g).) Here, Plaintiff
alleged that “an account was stated in writing” and is based upon “account number
XXXXXXXXXXXX7011.” (Comp. CC-1(a)(2), (6).) Defendant also argues that Plaintiff failed to serve her within the time stated in CRC,
Rule 3.740(d). However, such failure does not support a demurrer which only
challenges the sufficiency of the pleading. CCP 430.10 provides several separate and
distinct bases for demurrer, none of which address the stated ground. In any event,
CRC 3.740(e) provides that where the complaint is not served within the 180 day
timeframe provided in CRC 3.740(d), the Court may issue an OSC re: monetary
sanctions and must continue the OSC hearing to 360 days after filing the complaint if
proof of service is filed 10 days before the OSC hearing. Here, the Court never issued
an OSC and in any event, it is clear that Plaintiff has served Defendant, and defendant
has appeared in the action.

The demurrer is overruled. Defendant shall file and serve her answer to the complaint
no later than May 30, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.