Memorandum Points and Authorities

Cal. Super. - 6th Dist.April 26, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/17/2021 1:36 PM Reviewed By: Y. Chavez Case #21CV381001 Envelope: 7079145 21CV381001 Santa Clara - Civil Y. Chavez ZWICKER 8: ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 TELEPHONE: 925.689-.7070 FACSIMILE: 956897077 \OOOQONKflthp- NNNNNNNNNn-tp-Hn-n-H-tp-y-n-n OONQMAWN-Ocooflmm-bWNflo JANET L. BROWN (State Bar No. 208602) MARTIN HOFFMANN (State Bar No. 248141) MASON ARIA (State Bar No. 336636) ZWICKER & ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 Telephone: (925)689-7070 Facsimile: (925)689-7077 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA SAN JOSE JUDICIAL DISTRICT - LIMITED CIVIL CASE DISCOVER BANK, N0. 21CV381001 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALT ERNATIVE SUMMARYMW Plaintiff, vs. CRISTOFER RAMIREZ, Defendant. Date: TBA Time: TBA Dept: TBA Date Action Filed: 4f26f21 Trial Date Set: NfA COMES NOW plaintiff in the above-entitled action and submits the following memorandum of points and authorities in suppon of its motion for summary judgment. 1. INTRODUCTION. This action is a simple collection case. Plaintiff’s complaint as filed states facts sufficient to constitute a cause 0f action against the Defendant CRISTOFER RAMIREZ, as it alleges that within four years last past, the defendant became indebted t0 plaintiff on a personal loan obtained from plaintiffDISCOVER BANK at the defendant‘s request. Defendant applied to plaintiff for a personal loan and entered into a written loan agreement l MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY .-\DJL‘D[CI-\TIO.\' ZWICKER 8: ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 TELEPHONE: 925689-7070 FACSIMILE: 925.689.7077 th \OOOQQKII 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with plaintiff for the account ending in 9041 (the “Account”). See Plaintiff’s Separate Statement of Undisputed Material Facts #1, #9 (“Separate Statement”). Pursuant to the direction of the defendant, plaintiff disbursed the loan/financed amount to the defendant by check, to defendant's designated bank account or to a third party designee. (See Separate Statement #2, #10). The defendant agreed to be bound by the terms and conditions set forth in the Loan Agreement and, among other promises, promised to pay to plaintiff the principal amount advanced andr'or financed along with the interest rate disclosed in the Truth in Lending disclosure statement. (See Separate Statement #3, #1 1). Defendant received billing statements, yet failed to produce any evidence indicating that Defendant disputedm portion of any billing statement. (See Separate Statement #4, #12). The defendant defaulted by failing to make payments on the account as they became due. (See Separate Statement #5, #13). The last payment applied to the account was on 0r about 02/24/20. (See Separate Statement #6. #14). Defendant owes to plaintiff $10,200.46 and coun costs. (See Separate Statement #7, #15) The defendant has filed an answer to the complaint, which answer does not state facts sufficient to constitute a defense to any of the material allegations in the complaint. As such, plaintiff is accordingly entitled to summary judgment in this matter. 2. THE COURT IS EMPOWERED TO AWARD PLAINTIFF SUMMARY JUDGMENT. California Code of Civil Procedure § 437C authorizes the entry of summary judgment. Summary judgment is the proper procedure to discover, through the media of affidavits, whether the parties possess evidence that demand the analysis of a trial. Stationers Corporation v. Dun & Bradstreet Inc.. (1965) 62 Cal.2nd 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; Coyne v. Krempels (1950) 36 Cal.2nd 257,262,223, P.2d 244. Summaryjudgment is designed to protect plaintiff from 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PL.-\I.\'T[FF'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION ZWICKER &: ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 Cowcom), CA 94520 TELEPHONE: 925689-7070 FACSIMILE: 925.689.7077 \OOOflQkh-PWNH NNNNNNNNr-‘Hp-I-tfly-HHHu-n \IQMAWN_O\OW\IO\M#WNHO N oo harassing delays that ordinarily accompany evasive, spurious, and meritless defenses. Buffalo Arms Inc. v. Remler Co. (1960) 179 Cal.App.2d 700, 702-03, 4 Ca1.Rptr. 103. C.C.P. § 437C (p)(1) provides: "A plaintiff or cross-complainant has met his 0r her burden of showing that there is no defense to a cause of action if that party has proved each element ofthe cause of action entitling the party t0 judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one 0r more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings t0 show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material facts exists as t0 that cause of action 0r a defense thereto." In contrast to the law that prevailed prior to the 1992 amendments to 437C, plaintiff does not have the burden of disproving any alleged affirmative defenses. 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial, sections 10:234-2342. Here, as the evidence will show, there is no triable issue as to any material fact contained in Plaintiff’s complaint and thus Plaintiff is entitled to summaryjudgment as a matter oflaw. 3. AN OPEN BOOK ACCOUNT EXISTED BETWEEN THE PARTIES Plaintiff established a loan account after Defendant’s application. Plaintiff disbursed the funds pursuant t0 the terms 0f the loan agreement. The elements of a book account are set out in California Code of Civil Procedure, §337a, as follows: "The term “book account" means a detailed statement which constitutes the principal record of one or more transactions between a debtor and creditor arising out of a contract ..., and show the debits and credits in connection therewith. against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor and if kept in a reasonably permanent form and manner and is (l) in a bound book. 0r (2) on a sheet 0r sheets fastened in a book 01' to a backing but detachable there from, 0r (3) on a card or cards 0f a permanent character, or is 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PL.-\l.\'TIFF'S MOTION FOR SUMMARY JUDGMENT OR I.\' THE ALTERNATIVE SUMMARY ADJL'DIC‘ATION ZWICKER 8: ASSOCIATES, P.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 TELEPHONE: 923689-7070 FACSIMILE: 925.689.7077 AWN \OOOQQM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 kept in any other reasonably permanent form and manner." Like many business operations in the “electronic age". Plaintiff’s business records are largely computerized. Each month, the charges in form of fees, interest accrual and payments added on a customer’s account are registered by Plaintiff‘s computer and an invoice or statement is generated. Statements showing those charges and the outstanding principal balance are then generated from these records. A computerized book account of a permanent nature is established and maintained for each customer showing each transaction, both debits and credits, on the customer’s account and the amount due from the customer t0 Plaintiff. Section 337a was held to contain “broad language” and represents the adoption of a liberal approach in defining the term “book account". Costerisan v. DeLong (1967) 251 Cal. App. 2d 768, 59 Cal. Rptr. 803. See also Fresno Credit Bureau v. Batteate (1951) 102 Cal. App. 2d 545, 227 Pac. 2d 851 (the court held that one ledger entry was sufficient to suppofl a judgment based on an open book account). A book account is evidence ofthe personal loan established and disbursed to the Defendant, or services 0r other things of value given to a defendant. “The books are held competent evidence to prove the delivery of goods or services therein charged, when the nature 0f the subject is such as not to render better evidence attainable. The reason or the rule supposes the fact 0f which an entry is made to be peculiarly within the knowledge of the party, and the entry t0 be admissible where it was made evidently contemporaneous with the fact and part of the res gestae. The main transaction thus illustrated [by the book account], is the delivery of the goods or services." Severance & Smith v, Lombardo (1 860) 17 Cal. 57. In this case, the account histOIy provided shows the loan amount, the accrual of interest, and the amounts 0f fees and payments applied to the loan account. The evidence provides that a book account was established between Plaintiff and Defendant, and that Defendant is liable under the Complaint filed herein. /// /// 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY :\DJUDIC.-\TION ZWICKER & ASSOCIATES, I’.C. 1320 WILLOW PASS ROAD, SUITE 730 CONCORD, CA 94520 TELEPHONE: 925.689-.7070 FACSIMILE: 925.689.7077 \OOONQUI#WN’-i NNNNNNNNt-dwh-t-tr-p-tr-dp-twp-t NGMANN-‘OCWQQU‘AU’NHO N 00 4. AN ACCOUNT WAS STATED BETWEEN THE PARTIES "When a creditor renders a bill 0r statement to the debtor, it becomes an account stated when the debtor accepts it as correct or fails to object to it within a reasonable time.” California Debt Collection Practice (CEB 1967) page 69. “If the account is sent to the debtor and he does not object to it within a reasonable time, his acquiescence will be taken as an admission that the account is truly stated.” Trafton v. Youngblood (1968) 69 Cal. 2d 17; Maggio, Inc. v. Neal (1987) 196 Ca1.App.3d 745. In addition, partial payment of a debt without objection and without otherwise indicating a non-recognition of the validity of the debt is proof of the validity 0f the debt. Price v. Wells Fargo Bank (1989) 213 Ca1.App.3d 465, 480, 261 Ca1.Rptr. 735. Here, Plaintiff submitted numerous billing statements to Defendant each month. There are no documents or evidence presented to Plaintiff or to this Coun indicating that there is any valid unresolved dispute between the panics andlor that Defendant validly objected to any billing statement submitted by Plaintiff by submitting such objection as required under the federal Fair Credit Billing Act applicable to such account (15 USC Section 1666 et seq.), and in accordance with the telms of the Agreement. 5. INABILITY TO PAY IS NOT A DEFENSE Settlement discussions and defendant‘s subjective belief regarding the ability to pay the debt are irrelevant to the merits. See Price v. Wells Fargo Bank (1989) 213 Ca1.App.3d 465, 479, regarding Wells Fargo‘s "‘hard line’ in repayment negotiations.” California “does not impose any affirmative duty ofmoderation in the enforcement of legal rights." (fl)_ic_i.) See also AB Group v.Em (1997) 59 Cal.App.4th 1022, 1028, stating: At the core of Wertin‘s argument, however. is an idea that dare not speak itself plainly. What Wertin is really saying, unadomed, is hisfher: By the simple act 0f not paying a lawful debt, a debtor can force a discount from a creditor because ofthe risks and collection expenses associated with litigation. . . . Wertin appears t0 have overlooked the elementary proposition that a borrower is legally obligated to repay hisr'her or her loans. [Citation] . . . 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PL.-\l.\'TIFF‘S MOTION FOR SUMMARY JUDGMENT OR 1N TIIF. ALTERNATIVE SUMMARY ADJUDIC'ATION CONCORD, CA 94520 TELEPHONE: 925689-7070 FACSIMILE: 925.689.7077 ZWICKER 8: ASSOCIATES, P.C. 1320 WILLOW PAss ROAD, SUITE 730 AWN \OWNQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Equity can hardly tolerate, much less impose as a duty, the deliberate attempt to deprive a contracting party of the fruits of hisfher or her bargain, even if the bargain is a loan transaction. 6. INTEREST Interest accrues as a matter 0f law. See Civil Code §§ 3287, 3289 (interest). The only way defendant can avoid hisfher obligation is t0 allege and make a proper tender and deposit in court. See Civil Code § 1025. This has not been done. 7. CONCLUSION Plaintiff respectfully submits that good cause exists for the court to award plaintiff summary judgment against defendant CRISTOFER RAMIREZ in the principal sum of $10,200.46, plus costs pursuant to a memorandum of costs. Dated: 8f 1 7f2021 Respectfully submitted, ZWICKER & ASSOCIATES, P. C. A Law Firm Engaged in Debt Collection MARTIN HOFFMANN Attorneys for Plaintiff 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATIOX