Case Name: US Bank National Association dba Elan Financial Services v. Anita Kubo
Case No.: 2018-CV-334802

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Plaintiff US Bank National Association dba Elan Financial Services

Factual and Procedural Background

This is a collection action. Plaintiff US Bank National Association dba Elan Financial Services (“Plaintiff”) extended credit on an account to defendant Anita Kubo (“Kubo”) for purchases and cash advances. (Complaint at p. 1, CC-1.) Plaintiff periodically billed Kubo throughout the credit relationship. (Ibid.) The Complaint alleges defendant Kubo is indebted to Plaintiff in the sum of $6,067.77 as she defaulted on the credit account. (Ibid.)

On September 12, 2018, Plaintiff filed a Judicial Council Form Complaint against defendant Kubo alleging causes of action for open book account and account stated.

On November 21, 2018, defendant Kubo filed a Judicial Council Form Answer alleging a general denial and various affirmative defenses.

Currently before the Court is Plaintiff’s motion for summary judgment, or in the alternative, summary adjudication to the Complaint. (Code Civ. Proc., § 437c.) Plaintiff filed a request for judicial notice in conjunction with the motion. Defendant Kubo filed written opposition and evidentiary objections. Plaintiff filed reply papers. Trial is set for January 13, 2020.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Plaintiff seeks an order from the Court for summary judgment with respect to the Complaint on the ground that no triable issues of material fact exist. In the alternative, Plaintiff requests summary adjudication of each cause of action in the Complaint.

Request for Judicial Notice

In support of the motion, Plaintiff requests judicial notice of the following statutes: (1) 15 U.S.C. § 1666 (Exhibit JN-1); and (2) 12 C.F.R. § 202.12 (Exhibit JN-2.). Plaintiff seeks judicial notice under Evidence Code section 452, subdivisions (a), (b), (c), (g), and (h). The request is unopposed. The Court however declines to take judicial notice of these statutes as they are not material in resolving issues raised by the motion for summary judgment. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].)

Accordingly, the request for judicial notice is DENIED.

Evidentiary Objections

In opposition, defendant Kubo asserts various objections to evidence submitted with the moving papers. Such objections include lack of personal knowledge, lack of foundation, hearsay, relevance, authentication, and the secondary evidence rule. The Court has reviewed these objections and concludes they are not well-taken. Accordingly, the evidentiary objections by defendant Kubo are OVERRULED.

Legal Standard

A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A plaintiff moving for summary judgment “bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)

Similarly, “[a] party is entitled to summary adjudication of a cause of action if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. A plaintiff moving for summary adjudication of a cause of action must establish each element of the cause of action.” (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1154-1155, citations omitted.) If the plaintiff meets this initial burden, the burden then shifts to the defendant to “show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).)

Plaintiff meets its initial burden on summary judgment

As explained above, the operative Complaint alleges claims for open book account and account stated.

The elements of an open book account cause of action are: (1) that plaintiff and defendant had a financial transaction; (2) that plaintiff kept an account of the debits and credits involved in the transaction; (3) that defendant owes plaintiff money on the account; and (4) the amount of money that defendant owes plaintiff. (See CACI No. 372.)

“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. [Citations.] To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ [Citation.]” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.)

“The essential elements of an account stated are: (1) previous transactions between the parties establishing the 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. [Citations.]” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

In support of the motion, the moving party submits a declaration from Jennifer Wade (“Wade”), a Legal Specialist working on behalf of Plaintiff. Wade contends she is the duly authorized keeper of Plaintiff’s books and records and that Plaintiff maintains computerized account records for customers who have established a credit account with the bank. (Wade Decl. at ¶ 3.) The records are kept in the ordinary routine course of business by Plaintiff who is charged with the duty to record any business act, condition or event onto the computer system with the entries made at or about the time of any such occurrence. (Ibid.) The computerized records maintained by Plaintiff constitute the principal records of amounts due and owing to Plaintiff for all transactions that occur when an individual uses a U.S. Bank credit account. (Id. at ¶ 4.)

According to Wade’s declaration: (1) defendant Kubo established a credit account with Plaintiff; (2) Kubo agreed to be bound by the terms and conditions within the credit card agreement; (3) defendant Kubo utilized the credit account; (4) credits and debits are reflected on the computerized credit card regularly kept and maintained by Plaintiff in connection with Kubo’s credit account; (5) monthly billing statements were mailed to Kubo reflecting all debits and credits to her credit account; and (6) defendant Kubo defaulted on the credit account and owes a principal balance of $6,067.77. (See Plaintiff’s Separate Statement of Undisputed Facts at Nos. 1, 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17; Wade Decl. at ¶¶ 1-10, Exs. A, B.)

In opposition, Kubo first argues there is no evidence of any written credit agreement between Plaintiff and defendant. (See OPP at p. 5:13-17.) Instead, Kubo claims Plaintiff provides only an unauthenticated copy of the agreement without a signature from defendant. This argument is not persuasive as Wade’s declaration sufficiently authenticates the credit card agreement. (See LPP Mortgage, Ltd. v. Bizar (2005) 126 Cal.App.4th 773, 776-777 [custodian of records competent to authenticate records on summary judgment motion].) Moreover, defendant Kubo agreed to abide by the terms and conditions of the agreement when she used her credit card and incurred charges. (Wade Decl. ¶ 6.)

In addition, defendant Kubo asserts the declaration submitted by Wade lacks sufficient clarity and factual specificity. (See OPP at p. 5:18-28.) This argument however is not supported by legal argument or citation to authority and thus the contention is waived. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Furthermore, Plaintiff has provided sufficient factual information in Wade’s declaration to support its common counts on summary judgment.

Therefore, the Court finds that Plaintiff has met its initial burden on summary judgment. The burden now shifts to defendant Kubo to raise a triable issue of material fact.

Defendant Kubo fails to raise a triable issue of material fact

A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at 25 Cal.4th p. 850, fn. omitted.) If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.) In opposition, defendant Kubo does not submit any evidence to raise a triable issue of material fact. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [in order to avert summary judgment, the opposing party must produce substantial responsive evidence sufficient to establish a triable issue of material fact].)

Consequently, the motion for summary judgment is GRANTED.

Disposition

The request for judicial notice is DENIED.

The motion for summary judgment is GRANTED.