Case Name: Wells Fargo Bank, N.A. v. Arlene S. Remez
Case No.: 2018-CV-327100

Motion for Summary Judgment to the Complaint by Plaintiff Wells Fargo Bank, N.A.

Factual and Procedural Background

This is a collection action. Defendant Arlene S. Remez (“Remez”) (self-represented) entered into a written credit card agreement with plaintiff Wells Fargo Bank, N.A. (“Plaintiff”). According to the agreement, defendant Remez was extended credit where she could charge for goods, services, and/or cash advances in exchange for repayment of the principal amount plus interest and finance charges. Defendant Remez accepted the agreement and its terms by using the subject credit card.

Following issuance of the credit card, defendant Remez made payments, charges, and incurred a balance on the subject account. Plaintiff sent defendant Remez statements for the account reflecting charges, payments and any fees and interest incurred. Defendant Remez ultimately defaulted and stopped making payments towards the balance of the subject credit card account. The last payment was on October 14, 2017 in the amount of $30.00. Plaintiff claims defendant Remez breached the credit card agreement and owes a principal balance of $5,501.67.

On April 24, 2018, Plaintiff filed a Judicial Council Form Complaint against defendant Remez alleging causes of action for breach of contract, open book account and account stated.

On October 4, 2018, defendant Remez filed a Judicial Council Form Answer.

Currently before the Court is Plaintiff’s motion for summary judgment to the Complaint. (Code Civ. Proc., § 437c.) Plaintiff filed a request for judicial notice in conjunction with the motion. Defendant Remez filed written opposition. Plaintiff filed reply papers. Trial is set for September 30, 2019.

Motion for Summary Judgment

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.

Request for Judicial Notice

In support of the motion, Plaintiff requests judicial notice of pleadings filed in this action, including the Summons and Complaint. (See Request for Judicial Notice at Ex. A.) The request is unopposed and the Court may take judicial notice of pleadings in this action under Evidence Code section 452, subdivision (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file]; see also Miller v. Super. Ct. (2002) 101 Cal.App.4th 728, 734 fn.2 [appellate court took judicial notice of superior court files under Sections 452, subd. (d) and 459].)

Accordingly, the request for judicial notice is GRANTED.

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).)

Plaintiff meets its initial burden on summary judgment

As stated above, the operative Complaint alleges claims for breach of written contract along with common counts for open book account and account stated.

“The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391, internal quotation marks omitted.)

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 Kaitlyn Smith (“Smith”), a Loan Adjustor working on behalf of Plaintiff. Smith contends she is familiar with the usage and record keeping systems for Plaintiff and the process by which information is transmitted by the merchant to the bank. (Smith Decl. at ¶ 2.) As part of her duties, Smith is responsible for monitoring the legal process for credit card accounts along with research and review of Plaintiff’s relevant business records. (Ibid.) In addition, Smith researches specific account issues including, but not limited to, a consumers’ past due accounts, consumer disputes with respect to the account, charges made and payments received on an account. (Ibid.) Smith further states she has personal knowledge of matters contained in Plaintiff’s business records which are kept in the ordinary course of business. (Id. at ¶¶ 3-4.)

According to Smith’s declaration: (1) defendant Remez requested and was extended a line of credit and a credit card by Plaintiff on or about October 14, 2009; (2) Remez accepted the terms and conditions of the credit card agreement by using the credit card account by charging for goods, services, and cash advances to the account; (3) Plaintiff’s internal computer system generated, kept and sent statements to defendant Remez showing the debits and credits incurred on the credit card account; (4) defendant Remez never disputed a charge, credit, or balance due on the credit card account with Plaintiff; and (5) defendant Remez defaulted on the credit card account and owes a principal balance of $5,501.67. (See Plaintiff’s SSUF [Common Counts] at Nos. 1-6; SSUF [Breach of Contract] at Nos. 1-12; Smith Decl. at ¶¶ 3-13.)

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

Defendant Remez 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.)

As a preliminary matter, the Court notes that defendant Remez fails to include a separate statement of opposing facts and evidence in opposition to the motion. “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c(b)(3); see Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115, disapproved on other grounds in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42 [“Without a separate statement of undisputed facts with references to supporting evidence…it is impossible…to demonstrate the existence of disputed facts.”].)

The opposition to a motion for summary judgment must also include a memorandum of points and authorities. (See Cal. Rules of Court, rule 3.1350 (e)(1).) Again, defendant Remez fails to submit any memorandum of points and authorities in support of her opposition.

Furthermore, defendant Remez is not exempt from compliance with the Code of Civil Procedure and rules of court by virtue of her self-representation status. Under the law, a party may choose to act as his or her own attorney. (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898; Gray v. Justice’s Court (1937) 18 Cal.App.2d 420, 423.) “[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].)

Finally, defendant Remez submits an affidavit in opposition to the motion explaining that she is currently going through extreme financial hardship. (Remez Affidavit at ¶ 2.) She also indicates she is enrolled in a debt settlement program and requests a six month continuance to allow the debt settlement company to settle her debt with the Plaintiff. (Id. at ¶¶ 2-3.) Defendant Remez however has not presented evidence to raise a triable issue of material fact as she does not dispute the principal amount owed on the credit card. Nor has she provided good cause to continue the motion for summary judgment, especially given that trial is scheduled for September 30, 2019. The parties are certainly free to settle this case at any time to avoid the need for motion practice or trial on the merits. (See Fisher v. Super. Ct. (1980) 103 Cal.App.3d 434, 440 [“The encouragement of settlements has always been part of the strong public policy of our state”].) But, defendant Remez has not offered any evidence demonstrating that settlement of this matter is imminent or likely to occur within a six month period.

Therefore, having failed to raise any triable issue of fact, the motion for summary judgment is granted.

Disposition

The request for judicial notice is GRANTED.

The motion for summary judgment is GRANTED.