Case Name: Discover Bank v. Joshua B. Rodriguez

Case No: 19CV347090

I. Background
II.

This is a debt collection action. Plaintiff Discover Bank (“Plaintiff”) alleges common counts against defendant Joshua Rodriguez (“Defendant”) for failure to pay credit card debt.

According to the allegations of the complaint, Plaintiff extended credit to Defendant for purchases and/or cash advances. Defendant was billed periodically throughout the credit relationship. However, $7,243.85 remains unpaid on the account, despite Plaintiff’s demand.

As a result, Plaintiff brings two causes of action for open book account and account stated.

Before the Court is Plaintiff’s motion for summary judgment or in the alternative summary adjudication.

III. Request for Judicial Notice
IV.

In support of its motion, Plaintiff requests judicial notice of a federal statute and a federal regulation: 15 U.S.C. section 1666, regarding correction of billing errors; and 12 C.F.R section 202.12, regarding record retention. The request is made pursuant to Evidence Code section 452, subdivisions (a) and (b), which allow the court to take judicial notice of the statutory law of the United States and regulations and legislative enactments issued under the authority of the United States.

As the statute and federal regulation are the proper subject of judicial notice, the request is GRANTED.

V. Motion for Summary Judgment
VI.

Pursuant to Code of Civil Procedure section 437c, Plaintiff moves for summary judgment or alternatively summary adjudication of its common count causes of action.

A. Plaintiff Meets its Burden
B.

A plaintiff moving for summary judgment bears the initial burden of production, and must present evidence demonstrating there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (“Aguilar”) (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment also bears the burden of persuasion, and must establish each element of any cause of action alleged, and thus there is no defense thereto. (Code Civ. Proc., § 437c, subd. (a)(1), (p)(1); see also Aguilar, supra, 25 Cal.4th 826, 850.) The plaintiff, who bears the burden of proof at trial by a preponderance of the evidence, must therefore “present evidence that would require a reasonable trier of fact to find the underlying material fact more likely than not – otherwise he [or she] 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 826, 851.)

1. Book Account
2.

Plaintiff meets its burden of proof for the common count cause of action of open book account.

A common count is a simplified form of pleading used to aver the existence of monetary indebtedness. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 (McBride).) A book account is a form of common count defined as a “detailed statement in the nature of debit and credit, arising out of contract or a fiduciary relationship.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) The elements of a book account are: (1) the existence of the principal record of one or more transactions between the creditor and debtor; (2) entries in the record that were made in the creditor’s regular course of business; and (3) the record was kept in a reasonably permanent form and manner. (Code Civ. Proc., § 337, subd. (a).) In deciding whether a book account exists, a court must examine the agreement between the parties and their conduct in the course of their dealings. (Maggio, Inc.. v. Neal (1987) 196 Cal.App.3d 745, 752.) The book must show against whom the charges are made and it must also be made to appear in whose favor the charges run. (McBride, supra.) A book account is considered open if the debtor has made some payments, but has not paid the full outstanding balance on the account leaving a balance due. (Ibid.)

In support of the elements of open book account, Plaintiff submits the declaration of Stacey Proctor (“Proctor”), its litigation support coordinator. (Pl. Dec. in Support of MSJ.) Proctor attests to the existence of computerized records maintained by Plaintiff which constitute the principle records of amounts due and owing by its customers. (Id. at ¶ 4.) Plaintiff’s business records detail all transactions that occur when an individual uses their credit account. (Ibid.) Proctor also states she personally reviewed Defendant’s account records, kept according to these processes. (Id. at ¶ 3.)

Furthermore, Proctor attests to the authenticity 25 statement bills, attached to the declaration, issued by Plaintiff for account number “4521,” Defendant’s account. (Pl. Dec. in Support of MSJ, ¶ 8; Exhibit B.) The statements are dated April 2017 to April 2019, and are addressed to Defendant. (Ibid.) Each shows against whom the charges are made, and in whose favor the charges run. (Ibid.) The first statement from April 2017 reflects a balance of $4,441.01. (Ibid.) Thereafter, the statements detail purchases and payments, with the last purchases made in January 2019, and the last payment made on January 1, 2019. (Ibid.) Each statement also includes information regarding how to dispute charges in conformity with section 1666, Title 15 of the United States Code. (Ibid.) None of the statements indicate that any charges were ever disputed by Defendant. (Ibid.)

Finally, Proctor declares that Defendant has failed to make agreed-upon monthly payments and pursuant to the terms of the written agreement, Plaintiff has accelerated the account balances and the entire unpaid balance of $7,243.85 is due. (Pl. Dec. in Support of MSJ, ¶ 9.) Finally, despite Plaintiff’s demand, no part has been paid. (Id. at ¶ 11.)

As a result, Plaintiff meets its burden of proof for each element of the cause of action of open book account.

3. Account Stated
4.

Plaintiff also meets its burden of proof for the account stated cause of action.

Actions on open book accounts frequently arise from a series of transactions that also constitute an account stated. (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d 745, 753.) “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.) “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.” (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d 745, 752.) “When a statement [of indebtedness] is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered.” (Id. at 753.)

In support of an agreement between the parties, Plaintiff produced evidence that Defendant sought and received a credit card from Plaintiff. (Pl. Dec. in Support of MSJ, ¶ ¶ 5, 7.) Plaintiff also produced two years’ worth of statement bills addressed to Defendant, detailing transactions between Plaintiff and Defendant including debts incurred (purchases) and credits made (payments), to establish the relationship of debtor and creditor. (Id. at Exhibit B.) Defendant’s most recent purchases and payment were made in January 2019. (Ibid.) The payments, and the absence of replies or objections regarding the debt listed on the statements demonstrate an ongoing promise by Defendant to pay the amounts due and is evidence of an implied agreement that the statements correctly state the amount owed. (Id. at ¶ 10.)

As a result, Plaintiff meets its burden of proof for each element of the cause of action of account stated.

C. Defendant Fails to Present a Triable Issue
D.

Defendant filed an opposition to the motion for summary judgment, including a separate statement, but did not lodge any evidentiary objections, or offer any supporting evidence in opposition. Thus, while his separate statement disputes material facts in opposition, it is only by way of argument, and nothing in Defendant’s papers creates a triable issue of material fact.

If the party opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 850.) A triable issue of material fact arises if 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.” (Ibid.) The party opposing summary judgment may not rely upon the “mere allegations or denials of his or her pleadings” to show that a triable issue of material fact exists but, instead, must “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Id. at 849.)

As a general matter, Defendant largely relies on mere denials in opposition, which is insufficient. In one instance, Defendant argues that Plaintiff has not provided the governing credit card agreement, however this argument is unavailing. Plaintiff produced evidence that Defendant entered into the credit card agreement and accepted the terms through use of the credit card, so the failure to provide the governing credit card agreement is irrelevant. (See In re Anastas (9th Cir. 1996) 94 F.3d 1280, 1285—[“we view each individual credit card transaction as the formation of a unilateral contract between the card holder and card issuer consisting of the following promise in exchange for performance: the card holder promises to repay the debt plus to periodically make partial payments along with accrued interest and the card issuer performs by reimbursing the merchant who has accepted the credit card in payment”].)

Likewise, Defendant disputes the balance alleged and the interest rate charged, however no contrary evidence is presented, and his assent to the amount is shown over the course of two years through payments and his failure to dispute the charges and balances. Defendant also disputes that the alleged records were mailed on a monthly basis. However, he does not dispute that the address on the monthly statements provided by Plaintiff is his, or offer evidence that disputes the declaration by Proctor that Plaintiff provided Defendant monthly account records of his account.

Also, Defendant argues against Plaintiff’s evidence of no record of an unresolved dispute, or no record that Defendant asserted a valid objection to the balance. However, he presents no evidence to create a triable issue, by way of evidence that Defendant has in the past disputed charges or even that he disputes them now.

Finally, Defendant disputes the acceleration of the entire amount due, with reference to the final billing statement provided by Plaintiff, arguing that the statement does no show an acceleration of the balance. While true, this does not create a triable issue of material fact as the agreement governing the credit card, provided by Plaintiff, has an acceleration clause, and Proctor’s declaration attests to Plaintiff’s exercise of that option and demands made on Defendant. Defendant does not produce evidence that he did not receive the demands to which Plaintiff refers, he merely denies they were made through argument.

Consequently, Defendant fails to present any triable issue of material fact sufficient to overcome summary judgment.

Accordingly, Plaintiff’s motion for summary judgment is GRANTED.