Case Name: Northern California Collection Service, Inc. v. Ryan Peacock, Inc., et al.
Case No.: 16CV302130

I. Factual Background and Procedural History

Plaintiff Northern California Collection Service, Inc. (“Plaintiff”) commenced this action against defendants Ryan Peacock (“Peacock”) and his business Ryan Peacock, Inc. (“RPI”) to collect premium payments owed to nonparty State Compensation Insurance Fund (the “Insurer”) for workers’ compensation insurance. The insurance policy, namely Policy No. 9006334, was assigned to Plaintiff who seeks to collect the sum of $122,816.39 as well as interest in the amount of $6,550.38 for the period from March 1, 2014, until January 26, 2016.

Currently before the Court is Plaintiff’s motion for summary adjudication of two common count claims asserted against RPI based on an account stated and an open book account, which is accompanied by a request for judicial notice. RPI opposes the motion and filed written objections to portions of Plaintiff’s evidence. Plaintiff also filed written objections to portions of RPI’s evidence along with its reply.

One month before RPI filed its opposition, Plaintiff filed a motion for leave to file a first amended complaint (“FAC”) for the purpose of adding a statutory claim for a penalty under Insurance Code section 11760.1. The Court granted that motion shortly before the hearing on the motion for summary adjudication. Consequently, the original complaint to which Plaintiff’s motion is directed has been superseded, and the FAC is now the operative pleading.

Ordinarily, “[b]ecause there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint.” (State Compensation Insurance Fund v. Super. Ct. (2010) 184 Cal.App.4th 1124, 1131.) For example, when a plaintiff files an amended complaint that contains a new factual basis for one of his or her claims, a court may not grant a defendant’s motion for summary adjudication of that claim as pleaded in the previous complaint. (Ibid.)

Here, although the complaint has been amended, the common count claims that are the subject of the motion for summary adjudication have not. The common count claims in the FAC are identical to those alleged previously. Because the common count claims are the same, the Court is not presented with a scenario in which a motion for summary adjudication fails to address the claims and issues framed by the operative pleading.

A court may evaluate the merits of a motion for summary adjudication despite a pleading variance so long as the opposing party has notice and an opportunity to respond. (See, e.g., Nieto v. Blue Shield of Cal. Life & Health Insurance Co. (2010) 181 Cal.App.4th 60, 74-75.) RPI filed an opposition addressing the merits of Plaintiff’s motion for summary adjudication long after the motion for leave to amend was filed. Neither party states this motion is moot or should be withdrawn or taken off calendar in the materials presented to the Court in connection with this motion or the motion for leave to amend. Instead, unsurprisingly, both parties proceed as though the motion for leave to amend has no bearing on the motion for summary adjudication because no amendment of the claims at issue was contemplated and Plaintiff solely added a statutory claim.

Although RPI does ask for a continuance in the event the Court is inclined to grant the motion, its request does not actually appear to be based on the fact that the motion is moot or procedurally problematic in light of the amendment to the pleading. RPI’s request is made pursuant to Code of Civil Procedure section 437c, subdivision (h), which states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.”

In support, RPI generically states discovery is in its “infancy” and an amended complaint may be filed. (Opp. at pp. 9:24-10:5.) This is insufficient to justify continuing the hearing on the motion for summary adjudication as a general matter and under these particular circumstances.

First, RPI’s request is insufficient because a party cannot generically request a continuance and must, instead, present an affidavit showing: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts” (Jade Fashion & Co. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 656 [internal citations and quotation marks omitted]). RPI does not present an affidavit setting forth such information, and so it fails to substantiate its request.

Second, even assuming there is reason to believe RPI needs more time to discover additional facts relevant to the new statutory claim, it does not articulate and it is not obvious how those facts are essential or even relevant to opposing the motion directed solely to the common count claims. Thus, even accounting for the amendment to the pleading, there is no basis for continuing the hearing on the motion for summary adjudication of the unchanged common count claims.

To summarize, although Plaintiff amended the complaint, it did not amend the common count claims at issue. Consequently, there are no new issues raised by the pleading for which additional briefing and discovery is required. The motion for summary adjudication, thus, is not moot and the hearing thereon need not be continued. Instead, the motion is treated as a motion for summary adjudication of the common count claims as pleaded in the FAC and all references to the original complaint are treated as references to the operative FAC.
II. Standard of Review

A plaintiff may move for summary adjudication of a cause of action on the ground there is no defense thereto. (Code Civ. Proc., § 437c, subd. (f)(1).) The motion “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

A plaintiff bears the initial burden of showing “there is no defense to a cause of action [by] prov[ing] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) To carry this burden, the plaintiff must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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.” (Code Civ. Proc., § 437c, subd. (p)(1).) “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).)

Ultimately “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action [ ].” (Code Civ. Proc., § 437c, subd. (f)(1).)

III. Evidentiary Matters

A. Request for Judicial Notice

When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal quotation marks and citation omitted].)

Plaintiff first requests judicial notice of the FAC and RPI’s answer thereto. A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, since the FAC frames the issues for the purpose of this motion (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382), it must necessarily be considered by the Court. Because the Court must necessarily consider the FAC, it is unnecessary to take judicial notice of it. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) As for RPI’s answer, it is not relevant to the issues presented by the motion. Consequently, the answer is not a proper subject of judicial notice.

Plaintiff also requests judicial notice of information about RPI located on the websites of California’s Secretary of State and Contractor’s State License Board. It cites Evidence Code section 452, subdivisions (c) and (h) in support.
This first subdivision authorizes judicial notice of: “Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (Evid. Code, § 452, subd. (c).) Official documents and records prepared by a government agency are subject to judicial notice under subdivision (c). (See, e.g., Field v. Bowen (2011) 199 Cal.App.4th 346, 370, fn. 5.) But materials and information presented to a government agency by private parties and merely on file with that agency do not qualify as official acts and are not subject to judicial notice as such. (Hughes v. Blue Cross of N. Cal. (1989) 215 Cal.App.3d 832, 856, fn. 2.)

Evidence Code section 452, subdivision (h) authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” A court may not rely on the mere fact information is published on a website for the proposition that the information is not reasonably subject to dispute. (Huitt v. S. Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1604, fn. 10.) When a fact is not actually disputed, however, judicial notice is proper so long as the website is a source of reasonably indisputable accuracy. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760-61.) Here, the facts about RPI reflected in the printouts from the websites of the Secretary of State and Contractor’s State License Board are not actually disputed. The online databases maintained by these stage agencies from which the information was retrieved are sources of reasonably indisputable accuracy. Accordingly, the printouts of information from these agencies’ websites are proper subjects of judicial notice.

For the reasons set forth above, Plaintiff’s request for judicial notice is GRANTED as to the website printouts and DENIED as to the court records.

B. Objections to Evidence

Both parties filed written objections to evidence.

1. RPI’s Objections

RPI filed written objections, numbered one through twenty, to portions of the declaration of the Insurer’s employee Ryan Thornberry (“Thornberry”) and exhibits attached thereto as well as a statement in the declaration of Plaintiff’s employee Luther Hopp (“Hopp”).

As a preliminary matter, RPI states the Court must rule on all of its objections in writing. Contrary to what RPI asserts, the Court is not required by Reid v. Google, Inc. (2010) 50 Cal.4th 512 or Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 546 to rule on all of its objections, in writing or otherwise. In actuality, a court “need rule only on those objections to evidence that it deems material to its disposition of the motion” (Code Civ. Proc., § 437c, subd. (q)). It is precisely objections like those submitted by RPI here, namely “‘blunderbuss objections to virtually every item of evidence submitted’” (Reid, supra, 50 Cal.4th at pp. 532-33, quoting Demps, supra, 149 Cal.App.4th at pp. 578-79), that Code of Civil Procedure section 437c, subdivision (q) was designed to address. (See Sen. Rules Com., Rep. on Sen. Bill No. 470 (2015-2016 Reg. Sess.) June 14, 2015, p. 4.)

Turning to the substance of RPI’s objections, many of the grounds it identifies are not proper or appear to be based on a misunderstanding of the law. With that said, some of its objections are meritorious, particularly a number of its hearsay objections.

Objection Nos. 1, 3-11, and 14-20 are on the ground statements in and exhibits attached to Thornberry’s declaration and a statement by Hopp are hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless it comes within an exception to the hearsay rule. (Evid. Code, § 1200, subd. (b).)

Objection Nos. 18-20 are not sustainable on the ground of hearsay because neither Hopp’s statement nor the challenged statements in paragraphs 27 and 29 of Thornberry’s declaration constitute hearsay evidence. As for Objection Nos. 1, 3-11, and 14-17, the exhibits — consisting of insurance letters, forms, and notices — do constitute hearsay as do the statements by Thornberry recapitulating the contents of those exhibits. (See, e.g., Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107-08; see also Am-Cal Investment Co. v. Sharlyn Estates, Inc. (1967) 255 Cal.App.2d 526, 541.) Consequently, the exhibits and statements about their contents are inadmissible unless they come within an exception to the hearsay rule. Plaintiff does not identify and it is not apparent there is an exception applicable to Thornberry’s statements about the contents of the exhibits. But Plaintiff does assert the exhibits themselves may be admitted pursuant to the business records exception to the hearsay rule.

The business records exception allows a court to admit evidence of a writing that was made in the regular course of business and at or near the time of the act, condition, or event documented in the writing so long as a custodian of records or another qualified witness can testify to the identity and means of preparation of the writing and the source and means of preparation are sufficient to indicate the writing is trustworthy. (Evid. Code, § 1271.) A trial court has “wide discretion in determining whether a proper foundation has been laid for admission of business records under the business records exception.” (People v. Zavala (2013) 216 Cal.App.4th 242, 246.)

Thornberry is a custodian of records qualified to testify about his employer’s recordkeeping and business practices, but he provides equivocal testimony on the subject. His statements are insufficient to establish the exhibits attached to his declaration are admissible under the business records exception.
Although not especially clear, Thornberry appears to represent that some or all of the documents attached to his declaration are computer printouts. (Thornberry Decl., ¶ 7.) It is true that “California cases have held generally that computer printouts are admissible when they fit within a hearsay exception as business records under Evidence Code section 1271.” (Zavala, supra, 216 Cal.App.4th at p. 246.) Significantly, the proponent of evidence consisting of computer printouts must show, not just that the computer accurately printed the information constituting the business record, but also that the information in the printout satisfies the criteria set forth in Evidence Code section 1271. (Ibid.) Plaintiff fails to do so here.

Thornberry generically states “[t]hese records were prepared by [ ] employees or representatives in the ordinary course of business at or near the time of the acts, conditions or events described in the records and it was the ordinary course of business for [ ] employees or representatives with knowledge of the act, event, or condition recorded to make the record or transmit information therein to be included in such record.” (Thornberry Decl., ¶ 5.) But in the very next paragraph of his declaration, he contradicts this statement. He states the records “may include” records that were not created by employees or representatives of the Insurer, some of which may have been received and scanned into a computer database. (Thornberry Decl., ¶¶ 6-7.)

Thornberry’s statements reflect that, although perhaps some of the documents were prepared by the Insurer in the regular course of business, some of the documents were not. He does not specify and it cannot be determined which of the documents attached to his declaration were prepared by the Insurer and which were received by the Insurer from someone else. Additionally, there is no evidence about where the third-party documents came from and how they were maintained. In other words, it is impossible to determine from the vague and contradictory statements in Thornberry’s declaration that each document at issue was prepared and maintained in such a manner that each document qualifies as a business record. Accordingly, the challenged exhibits are not admissible under the business records exception to the hearsay rule.

RPI also objects to these exhibits on the grounds they “have not been produced in discovery and lack authentication” (Obj. at p. 2:23-24) and are irrelevant. Because the exhibits that are the subject of Objection Nos. 1, 3-11, and 14-17 are inadmissible hearsay, the Court need not rule on RPI’s authenticity and relevance objections to those same exhibits. (See Code Civ. Proc., § 437c, subd. (q).)

Based on the foregoing, Objection Nos. 1, 3-11, and 14-17 are sustainable on the ground of hearsay. For the reasons set forth below, none of the remaining grounds for objections identified by RPI are meritorious.

Objection Nos. 1-2, 12, and 18-20 are also on the ground there is a lack of “foundation,” which is a colloquial term used to describe a wide variety of requirements for the admissibility of evidence (People v. Porter (1947) 82 Cal.App.2d 585, 588; People v. Modell (1956) 143 Cal.App.2d 724, 729-30). Because that term is so broad, a generic objection on the ground there is a lack of foundation for the evidence is inadequate. (Modell, supra, 143 Cal.App.2d at pp. 729-30.) To make a proper objection, a party must identify the “alleged defect so that the ruling may be made understandingly and the objection obviated if possible.” (Porter, supra, 82 Cal.App.2d at p. 588.)

Additionally, Objection Nos. 1-2, 12, and 18-20 are on the ground Thornberry and Hopp lack personal knowledge sufficient to testify to the facts set forth in their declarations. Thornberry worked for the Insurer as a Senior Workers’ Compensation Insurance Representative and was assigned to RPI’s account. (Thornberry Decl., ¶¶ 1-3.) Hopp is Plaintiff’s Vice President and General Manager and has worked for the company since 1987. (Hopp Decl., ¶¶ 1, 3.) Hopp is in charge of managing the RPI account. (Hopp Decl., ¶¶ 3-4.) Accordingly, the declarations of Thornberry and Hopp reflect they do have sufficient personal knowledge.

Next, RPI identifies “improper legal conclusion” as a ground for Objection Nos. 1-12 and 14-17. It is true that “[t]he manner in which the law should apply to particular facts is a legal question and is not subject to expert, much less lay, opinion.” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444-45.) But Thornberry does not improperly opine as to how the law applies to the facts of this case. For this reason and in light of other statements made by RPI, it appears its objections are actually based on the principle that a declaration in support of a motion for summary adjudication must contain “evidentiary facts, not legal conclusions or ‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638-39; accord Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“[C]onclusions of fact are not binding on a summary judgment motion.”].) Even so, that particular legal principle is not a rule of admissibility. (See Burch v. Regents of the University of California (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1119.) And so while “statements in declarations [that] are not facts [ ] will not be considered on a motion for summary [adjudication],” RPI’s objections are improper. It should have simply presented an argument to this effect “instead of challenging the admissibility of the evidence.” (Burch, supra, 433 F.Supp.2d at p. 1119.)

RPI identifies the Best Evidence Rule as an additional ground for Objection Nos. 1, 3-11, and 14-17; it argues Thornberry’s statements about the documents attached to his declaration are “[i]mproper oral testimony regarding the contents of a writing.” (Obj. at p. 2:11-12.) The Best Evidence Rule is not a proper ground for an objection. The Legislature repealed the Best Evidence Rule in 1998. (See Evid. Code, § 1500, repealed by Stats. 1998, ch. 100, § 1.) Under the modern Secondary Evidence Rule, “[t]he content of a writing may be proved by an otherwise admissible original” (Evid. Code, § 1520) or by “otherwise admissible secondary evidence” (Evid. Code, § 1521). It is not obvious how the Secondary Evidence Rule is implicated here. In actuality, it appears RPI is merely restating its hearsay objections. (See, e.g., Molenda v. Dept. of Motor Vehicles (2009) 172 Cal.App.4th 974, 994 [discussing relationship between Secondary Evidence Rule and hearsay rule].) In other words, it appears the issue is simply that the secondary evidence of the contents of the documents attached to Thornberry’s declaration is inadmissible for the independent reason that it is hearsay. And so despite the merit of RPI’s hearsay objections, its objections on the ground of the Best Evidence Rule or Secondary Evidence Rule are not well-taken.

Objection No. 4 is also on the ground the evidence “misstates the testimony.” (Obj. at p. 3:21) An objection on this ground is improper because it is a ground for objecting to the form of a question asked on cross-examination or statements made in closing arguments, not direct testimony presented by declaration. (See Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal.App.3d 115, 124 [discussing proper objections to the form of a question]; see also People v. Davis (2005) 36 Cal.4th 510, 550-51 [discussion objection to and cure for prosecutor’s misstatement of evidence during closing arguments].) When counsel asks leading questions on cross-examination, the question itself necessarily makes up a significant portion of the answer put in evidence because, without it, the yes or no answer tendered by the witness lacks context. (See, e.g., People v. Tully (2012) 54 Cal.4th 952, 1035.) The same is not true for open-ended responses provided on direct examination or, for example, in a declaration. (Ibid.) Accordingly, “misstates the testimony” is not a proper objection to a statement in a declaration presented in this manner.

Next, RPI states Objection Nos. 18-20 are on the ground of “inadmissible speculation and conclusions,” citing Evidence Code sections 400, 403, and 410. (Obj. at p. 16:24.) A party may object to a hypothetical question or an expert’s conclusion based on a hypothetical scenario that is not supported by the evidence. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 462-63.) But neither of those circumstances are present here. RPI’s citation to particular sections of the Evidence Code defining a preliminary fact, the procedure for determining a preliminary fact, and direct evidence does not elucidate the nature of its objection or demonstrate it is raising a proper ground. RPI’s objections on this ground, thus, lack merit.

Objection Nos. 18-20 are also based on the ground of “incomplete.” (Obj. at p. 16:6-7.) RPI cites Evidence Code section 356, which states: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” The statements to which RPI objects do not, on their face, appear to be incomplete representations about a letter or conversation. In any event, the rule of completeness is not a basis for excluding the statements. Rather, if RPI believes the statements do not completely reflect some matter, it may present additional evidence to provide a complete representation. RPI’s objections on this basis are, thus, improper.

Based on the foregoing, Objection Nos. 1, 3-11, and 14-17 are SUSTAINED on the ground of hearsay and Objection Nos. 2, 12, and 18-20 are OVERRULED. Accordingly, Exhibits 2-10 and 12-15, as well as assertions by Thornberry about their contents, are inadmissible.

2. Plaintiff’s Objections

Plaintiff filed written objections, numbered one through fourteen, to portions of Peacock’s declaration as well as to exhibits attached thereto. Objection No. 4 is a relevance objection to paragraph 10 of Peacock’s declaration in which he states he made calls to the Insurer about misclassification of RPI’s employees and the calculation of its insurance premium. “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) This evidence is relevant because it may disprove Plaintiff’s claim that it is entitled to recover the amount claimed in the pleading. Accordingly, Objection No. 4 is OVERRULED. It is unnecessary to rule on Plaintiff’s remaining objections because they are not material to the disposition of the motion; the objections are preserved. (See Evid. Code, § 437c, subd. (q).)

IV. Merits of Motion

Both of Plaintiff’s common count claims are based on the same underlying debt. Accordingly, the Court first summarizes the admissible evidence about the debt before discussing whether this evidence establishes the elements of either common count.

A bill from November 2015 addressed to RPI requests a payment of $116,630.04 reflecting a total premium for Policy No. 9006334 of $140,126.79 for the period from March 1, 2014, until March 1, 2015, less a payment of $28,004.60, plus an amount in arrears of $4,507.85. (Thornberry Decl., Ex. 11.)

A bill from April 2016 addressed to RPI requests a payment of $6,186.35 reflecting a total premium for Policy No. 9006334 of $41,578.65 for the period from March 1, 2015, until January 26, 2016, less a payment of $30,650.00 and a credit of $4,598.00, plus an amount in arrears of $144.30. (Thornberry Decl., Ex. 16.)

A letter addressed to RPI in June 2016 states it has not paid either of these bills and owes a total of $122,816.39. (Thornberry Decl., Ex. 17.) The letter also states that if it is ignored, the “policy will be sent to a collection agency with 14 days from the date of this letter for possible legal action.” (Ibid.) The Insurer subsequently assigned the policy to Plaintiff for collections. (Thornberry Decl., Ex. 18; Hopp Decl., ¶¶ 1, 5.)

Although Plaintiff tried to collect the amount due, it “received no payments whatsoever.” (Hopp Decl., ¶ 6.) Consequently, Plaintiff commenced this action as authorized by the Insurer. (Hopp Decl., ¶ 5; Thornberry Decl., ¶ 34.)

Plaintiff asserts it is entitled to collect the amount due based on an account stated and an open book account.

An account stated “is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another.” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786.) “When the account is assented to, it becomes a new contract.” (Ibid. [internal quotation marks and citations omitted].) “An action on it is not founded upon the original items, but upon the balance agreed to by the parties.” (Id. at pp. 786-87 [internal quotation marks and citations omitted].) “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.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

Plaintiff presents evidence of previous transactions between RPI and its insurer, namely the bills discussed above. Although Plaintiff does not present evidence showing RPI explicitly agreed to pay the amount of $122,816.39, it argues it implicitly agreed to pay that amount by failing to object. Plaintiff is correct that when “the creditor render[s] a statement of the account to the debtor” and “the debtor fails to object to the statement within a reasonable time, the law implies [an] agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600.) Thornberry states RPI failed to request reconsideration through the Customer Assistance Program, file a complaint or request with the Workers’ Compensation Insurance Rating Bureau, or file an appeal with the Insurance Commissioner. (Thornberry Decl., ¶ 35.) Accordingly, Plaintiff presents evidence sufficient to establish RPI agreed, through its failure to object, to pay the amount of $122,816.39 as reflected in the account statement provided.

In opposition, RPI argues it did not acquiesce and, in fact, objected to the rendering of the account provided. In RPI’s separate statement it states the evidence is “incomplete” and “objection [sic] and not germane.” (Sep. Stat., ¶¶ 14-15.) RPI does not explain and it is not obvious how the evidence is incomplete or irrelevant. Additionally, RPI’s written objections to evidence do not include objections to the bills and demand letter discussed above. A party cannot raise a triable issue of material fact through “speculation, conjecture,” and “cryptic, broadly phrased, and conclusory assertions.” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196 [internal quotation marks and citations omitted].) Thus, RPI’s separate statement is inadequate.

With that said, RPI does refer to Peacock’s declaration in its opposition. Peacock admits he received the bill from November 2015 and demand letter from June 2016. (Peacock Decl., ¶¶ 7, 17.) Peacock states that when he received a bill for a premium of $116,630.04 instead of the original estimate of $19,785, he immediately contacted his insurance broker Chris Lang and stated it appeared his employees had been misclassified for the purpose of calculating the premium. (Peacock Decl., ¶ 7.) Peacock also tried to work with an auditor who worked for the Insurer, namely Linh B. Vong, to address the billing dispute. (Peacock Decl., ¶¶ 4, 10.) Additionally, Peacock states that when he received the demand letter in June 2016, he called the phone number listed in the letter. (Peacock Decl., ¶ 17.) Peacock states that he was then directed to “the same customer service number that previously failed to return [his] calls.” (Peacock Decl., ¶ 17.) Accordingly, RPI raises a triable issue of material fact with respect to whether it acquiesced to paying the amount reflected in the account statement rendered by the Insurer.

For these reasons, Plaintiff is not entitled to summary adjudication of its common count claim based on an account stated.

Plaintiff also argues the evidence supports recovery of the sum claimed based on an open book account. A book account is a detailed statement of debits and credits on an account from which “‘it can be reasonably determined what amount is due to the claimant.’ [Citation.]” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [“The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.”]; see also Code Civ. Proc., § 337a [defining book account].) A book account is considered open if the debtor has made some payments, but has not paid the full outstanding balance on the account. (Ibid.)

“In deciding whether a book account exists the court must examine the agreement, or lack of agreement, between the parties and their conduct in the context of their commercial dealing.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.) “The mere incidental keeping of accounts does not alone create a book account.” (Ibid.) Consequently, “moneys due under an express contract cannot be recovered in an action on an ‘open book account’” simply because payment records were maintained unless there is an agreement between the parties showing they intended to establish a book account. (Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1395, fn. 9; Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1343-44 [landlord could not recover unpaid rent based on an open book account].)

Here, although the bills show charges and credits, it is not apparent the bills constitute a book account. In Plaintiff’s memorandum of points and authorities, it simply concludes it can recover based on this theory. But it does not explain or cite any authority for the proposition that an action to recover premium payments owed pursuant to an insurance contract may be maintained as an action on an open book account in the absence of evidence reflecting the parties intended to establish a book account and based solely on the fact that bills were sent to the insured. Plaintiff, thus, does not carry its initial burden of establishing RPI owes it $122,816.39 based on an open book account. Even if it did, it is not entitled to summary adjudication of this claim because, as reflected above, RPI raises a triable issue of material fact with respect to the premium charges.

In conclusion, Plaintiff is not entitled to summary adjudication of either of its common count claims. The motion for summary adjudication is therefore DENIED.