Case Name: Wells Fargo Bank, N.A. v. Gampon

Case No.: 19CV344643

Plaintiff Wells Fargo Bank, N.A. (“Plaintiff”) moves for summary judgment, or in the alternative, summary adjudication, in its favor and against defendant Jon M. Gampon (“Defendant”).

I. Background
II.

This is a collection action in which Plaintiff seeks to recover on a credit card debt in the amount of $9,778.91 from Defendant. In the judicial form complaint filed by Plaintiff on May 15, 2019, Plaintiff asserts the following causes of action: (1) breach of contract; and (2) common counts (open book account, an account stated in writing, for money had and received, for goods sold and delivered, for money lent or paid out to defendant).

On October 15, 2019, Plaintiff filed the instant motion for summary judgment, or in the alternative, summary adjudication. Defendant opposes the motion.

III. Plaintiff’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
IV.

A. Request for Judicial Notice
B.

In support of its motion for summary judgment/adjudication, Plaintiff requests that the Court take judicial notice of the following items: (1) the summons and complaint (Exhibit A); and (2) the proof of service of the summons and complaint (Exhibit B). As these items are court records, they are proper subjects of judicial notice pursuant to Evidence Code 452, subdivision (d). Accordingly, Plaintiff’s request for judicial notice is GRANTED.

C. Burden of Proof
D.

The party moving for summary judgment bears the initial burden of production to make a prima facie case showing that there are no triable issues of material fact – one sufficient to support the position of the party in question that no more is called for. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Plaintiffs moving for summary judgment bear the burden of persuasion that each element of the cause of action in question has been proved, and hence there is no defense thereto. (Code Civ. Proc., § 437c.) Plaintiffs, who bear the burden of proof at trial by preponderance of evidence, therefore “must present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not- otherwise he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at 851.) The defendant has no evidentiary burden until the plaintiff produces admissible and undisputed evidence on each element of a cause of action. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2013), ¶ 10:238.) If the plaintiff meets this initial burden, it 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).)

E. Analysis
F.

Plaintiff maintains that it is entitled to summary judgment because the undisputed material facts demonstrate that Defendant owes Plaintiff the amounts specified in the instant motion.

1. Plaintiff’s Undisputed Material Facts
2.

Plaintiff submits the following material facts as undisputed and supported by evidence: Defendant applied for a credit card with Plaintiff who, after processing and approving the application, issued him a credit card account. (Plaintiff’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment/Adjudication (“UMF”), No. 1.) Plaintiff mailed Defendant a credit card with a card holder agreement which included, among other things, Defendant’s acknowledgment of acceptance of the terms and conditions by use of that account. (UMF No. 2.) Defendant subsequently activated the card and made charges and payments on the subject account, incurring a balance. (UMF No. 3.) Monthly statements were generated, kept and mailed to Defendant to the address provided by him from Apri1 9, 2013 to July 10, 2019. (UMF No. 4.)

Defendant never disputed a charge, credit or balance due on the account and made payments of principal and interest up to and through September 4, 2018. (UMF Nos. 5, 6.) Following this date, no further payments were made leaving an outstanding balance of $9,778.91. (UMF No. 6.)

3. Common Counts
4.

Plaintiff first addresses its second cause of action for common counts, specifically an account stated and an open book account. A common count is not a specific cause of action, but rather a “simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness ….” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) “It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” (Utility Audit Co v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.)

In general, the essential elements of a common count are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchnage v. Zerin (1997) 53 Cal.App.4th 445, 460 [internal citation omitted].) With respect to an open book account in particular, a plaintiff must plead and prove the following: (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.)

The elements of an account stated, which 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” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752), 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.)

Here, in order to establish the foregoing elements, Plaintiff submits the declaration of one Lindsay R. Hogueison, a Loan Adjustor for Plaintiff, who explains that as part of her job duties, she is “familiar with the usage and record keeping systems for Wells Fargo and the process by which the information is transmitted by the merchant and or bank, to Wells Fargo.” (Declaration of Lindsay R. Hogueison in Support of Motion for Summary Judgment/Adjudication (“Hogueison Decl.”), ¶ 2.) Consistent with these duties, Hogueison explains that she is responsible for monitoring the legal process for credit card accounts and research and review of Plaintiff’s relevant business records. (Id.) In this instance, she reviewed Defendant’s account, all statements associated with it, the Customer Agreement & Disclosure Statement (which is attached to the declaration), several card carriers that were mailed out to Defendant when new cards were sent, the pleadings in this action and various associated correspondence. Based on these materials, Hogueison sets forth the chronology of events described above regarding Defendant’s obtaining a credit card from Plaintiff.

The evidence submitted by Plaintiff- the Hogueison Declaration- meets Plaintiff’s initial burden by establishing that: Defendant obtained a credit card from Plaintiff; Defendant’s used the card to incur charges, thereby forming an agreement with Plaintiff, the creditor, to pay the amounts of debt incurred on the account; Plaintiff kept an accounting of the debits and credits on Defendant’s account; statements were regularly sent to Defendant reflecting that accounting; Defendant made payments on the account; and Defendant currently owes Plaintiff $9,778.91, having ceased making payments after September 4, 2018.

In opposition, Defendant nevertheless insists that Plaintiff has not met its initial burden, asserting that Hogueison’s declaration is insufficient to do so. He contends that her declaration is packed with conclusions and ultimate facts, and is not supported by adequate documentation, in particular the materials she reviewed in reaching her conclusions. He notes that the copy of the credit card agreement attached to Hogueison’s declaration does not identify him as a party to it and does not bear his signature, and challenges Hogueison’s assertion that she has personal knowledge of the materials she refers to having reviewed. Defendant concludes that Plaintiff has not met its burden of production regarding whether or not there was an agreement between himself and Plaintiff, whether he breached that agreement, and whether it is entitled to the amount of damages prayed for. Because Plaintiff has not met its initial burden, Defendant maintains, he need not demonstrate the existence of a triable issue of material fact and Plaintiff’s motion must be denied.

The foregoing assertions by Defendant are wholly unpersuasive. First, the Customer Agreement & Disclosure Statement, by its own express terms, did not require a signature in order to be enforceable, but an agreement to perform was implied by conduct, namely Defendant’s use of the credit card. (See Hogueison Decl., Exhibit A [stating that “You and any joint Account holder accept the terms of this Agreement by using or activating your Account”].) Second, Hogueison’s declaration is supported by admissible evidence, with Hogueison having obtained the necessary personal knowledge to opine on Defendant’s account by personally examining the business records relating thereto. The declaration sets forth sufficient information to place the materials and information referred to within recognized exceptions to the hearsay rule, particularly the business records exception set forth in Evidence Code section 1271.

The entirety of Defendant’s opposition is essentially aimed at challenging the credibility of Hogueison’s declaration, but summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the motion for summary judgment. (See CCP §437c, subd. (e); Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 632; Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487, 496.) That the moving party’s declarations are self-serving is not enough to prevent summary judgment. Unless controverted, those declarations must ordinarily be accepted as true on summary judgment. (Trujillo, supra, 157 Cal.App.4th at 636.) Defendant, by failing to submit any evidence at all, has failed to controvert Plaintiff’s evidence (the Hogueison Declaration) and that evidence is sufficient to meet Plaintiff’s initial burden. Because no triable issue of material fact has been raised by Defendant, Plaintiff is entitled to summary adjudication in its favor on its common counts.

5. Breach of Contract
6.

The evidence submitted by Plaintiff also establishes all of the necessary elements of its breach of contract claim, i.e., (1) the existence of a contract, (2) Plaintiff’s performance or excuse for nonperformance under that contract, (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.) An enforceable agreement was formed between Plaintiff and Defendant upon Defendant’s use of the credit card; Plaintiff fully performed by extending credit to Defendant; Defendant breached the agreement by eventually failing to pay the amount owed; and Plaintiff was damaged as a result of Defendant’s failure to pay. (UMF Nos. 1-12.) Plaintiff has therefore met its initial burden on this cause of action. In opposition, as explained above, Defendant fails to raise a triable issue of material fact. Plaintiff is therefore entitled to adjudication of this claim in its favor.

In accordance with the foregoing, Plaintiff’s motion for summary judgment is GRANTED.