Memorandum Points and Authorities

Cal. Super. - 6th Dist.April 30, 2021

A OLOOONOUO‘l-bQDN 21 CV381264 Santa Clara - Civil Claudia Gavrilescu, Esq. (CA Bar N0. 333030) REESE LAW GROUP 3 168 Lionshead Avenue Carlsbad, CA, 92010 Tel. No.2 760/842-5850 Attorney for Plaintiff: WELLS FARGO BANK, N.A. SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA SANTA CLARA JUDICIAL DISTRICT, SAN JOSE SUPERIOR COURT WELLS FARGO BANK, N.A., V. TITA F ARAFILES, Plaintiff, Defendant. V. Castaneda Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/20/2022 5:43 AM Reviewed By: V. Castaneda Case #21 CV381 264 Envelope: 8094959 Case N0. 21CV381264 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION Date: Time: Dept: 1 Assigned Judge: Complaint Filed: April 30, 2021 Trial Date: May 23, 2022 This is a collection action where the complaint pleads breach 0f contract and common counts. In response to Defendant’s request, Plaintiff extended to the Defendant a line 0f credit and issued her a credit card. This case is the result of Defendant, TITA F ARAFILES, using and subsequently incurring a credit card balance 0f $15,413.54. On a monthly basis, Plaintiff generated and mailed to Defendant statements showing the charges, debits, and credits. The statements also requested minimum payments. Eventually STATEMENT OF FACTS I. MEMORANDUM OF POINTS & AUTHORITIES Case N0. 21CV38 1264 A OLOOONOUO‘l-bQDN payments stopped and Plaintiff charged off the account. Plaintiff filed this action and Defendant has answered. The Defendant claims a general denial, along with several affirmative defenses. II. LEGAL AUTHORITY California Code of Civil Procedure section 437c(a) provides, in pertinent part, that “[a]ny party may move for summary judgment in any action 0r proceeding if it is contended...that there is n0 defense to the action or proceeding.” The motion shall be supported 0r opposed by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters 0f which judicial notice shall or may be taken. Cal. Code Civ. Proc. § 437c(b)(1). The motion shall be granted if there is n0 triable issue as t0 any material fact and that the moving party is entitled t0 judgment as a matter 0f law. Cal. Code CiV. Proc. § 437C. Code of Civil Procedure § 437(c)(1) provides: “A plaintiff... has met his or her burden of showing that there is n0 defense t0 a cause of action if that party has proved each element 0f the cause of action entitling the party to judgment 0n the cause 0f action. Once the plaintiff... has met that burden, the burden shifts t0 the defendant...to show that a triable issue 0f one 0r more material facts exists as t0 that cause 0f action or a defense thereto. The defendant... may not rely upon the mere allegations 0r denials 0f its pleadings to show that a triable issue 0f material fact exists but, instead, shall set forth the specific facts showing that a triable issue 0f material fact exists as t0 that cause 0f action or a defense thereto.” The undisputed facts submitted by Plaintiff in support 0f this motion demonstrate that Defendant owes Plaintiff the amounts specified herein. The initial burden of Plaintiff having been met pursuant to Code 0f Civil Procedure § 437(c)(1), the burden shifts to Defendant t0 produce admissible evidence demonstrating that a triable issue 0fmaterial fact exists. Arciniega v. Bank ofSan Bernardino, N.A. (1 997) 52 Ca1.App.4th 2 1 3, 23 1. “[S]ummary judgment law in this state n0 longer requires a plaintiffmoving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause 0f action. In this particular, it now accords with federal law. A11 that the plaintiff need do is t0 ‘prove [ ] each element 0f the cause 0f action” (Code CiV. Proc., § 437C, subd. (0)(1).).” Aguilar v. Ari. Richfield Ca, (2001) 25 Cal. 4th 826, 853. MEMORANDUM OF POINTS & AUTHORITIES Case N0. 21CV381264 A OLOOONOUO‘l-bQDN A party may move for summary adjudication as to one 0r more causes 0f action within an action, one 0r more affirmative defenses, one or more claims for damages, 0r one 0r more issues 0f duty, if that party contends that the cause 0f action has n0 merit 0r that there is no affirmative defense thereto, 0r that there is no merit to an affirmative defense as t0 any cause of action, or both. Cal. Code CiV. Proc. § 437c(f)(1). A motion for summary adjudication shall be granted only if it completely disposes 0f a cause of action, an affirmative defense, a claim for damages, or an issue 0f duty. Id. Further, an award 0f attorney fees may be made as part 0f the summary judgment in any case where such fees are recoverable by law, as where authorized by contract. Hoover Community Hotel Corp. v. Thompson (1985) 167 Cal.App. 3d 1130, 1143. Here, the agreed upon terms between the parties provide that Plaintiff is entitled to recover its reasonable attorney’s fees and costs incurred as a result 0f its attempts t0 collect amounts owed pursuant t0 said agreement. (Plaintiff’ s Breach 0f Contract Undisputed Material Fact (“P’s BOC UMF”) #1 & #4) III. COMMON COUNTS A common count essentially alleges that the debtor became indebted t0 the creditor in a stated sum, based 0n consideration (e.g., goods sold, labor performed, or money received), and that the sum has not been repaid. Pike v. Zadig 171 Cal. 273. Two types 0f common counts are applicable in this case. a. An account stated. An account stated is an agreement, based 0n prior transactions between the parties, that the items 0fan account are true and that the balance struck is due and owing. Maggio, Inc. v. Neal (1 987) Ca1.App.3d 745. The agreement necessary t0 establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered t0 a debtor and n0 reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Id. Defendant applied for a credit card and, after processing the application, the account was approved on July 19, 2013 and Defendant was issued a Wells Fargo Credit Card account. (Plaintiffs Undisputed Material Fact (Plaintiff’s Common Counts Undisputed Material Fact (“P’s CC UMF”) #1). Such actions between Defendant and Plaintiff constitute “a series 0f transactions” impliedly creating an account stated. Plaintiff, in turn, mailed Defendant a credit card with a card holder agreement. (P’s CC UMF #1). Said MEMORANDUM OF POINTS & AUTHORITIES Case N0. 21CV381264 A OLOOONOUO‘l-bQDN card holder agreement included, among other things, the Defendant’s acknowledgment 0f acceptance of the terms and conditions by u_se 0f the account. (P’s CC UMF #2). Monthly statements were generated, kept and mailed to the Defendant. (P’s CC UMF #4). If Defendant moved 0r Defendant’s mailing address changed, then Defendant was required to notify Plaintiff 0f the current mailing address. CiV. Code § 1788.21. Thus, Defendant was responsible for ensuring that Plaintiff had the proper mailing address t0 send the billing statements every month. Statements were sent t0 the address Defendant provided 0n the Credit Card Application and Agreement on a monthly basis from August 8, 2013 t0 December 8, 2020 showing the debits and credits incurred. (P’s CC UMF #4). As demonstrated in the monthly statements, the Defendant continually used and/or made partial payments 0n the credit card and thus, demonstrating a willingness t0 repay the obligation incurred. (P’s UMF #6). However, Defendant eventually ceased making payments as required by the Consumer Credit Card Customer Agreement & Disclosure Statement. (P’s CC UMF #6). As set forth in Plaintiff’ s Declaration in Support 0f Motion for Summary Judgment, the Defendant did not dispute billings in writing. (P’s CC UMF #5). Therefore, Defendant is liable for this debt 0n the basis 0f account stated. b. An open book account. A book account is based 0n a statement kept by the creditor showing the debits and credits between the debtor and creditor. It must (a) arise from a contract or fiduciary relationship, (b) be made in the ordinary course 0f business, and (c) be kept in any reasonably permanent manner. Cal. Code CiV. Proc. §337a. Actions 0n accounts stated frequently arise from a series of transactions which also constitute an open book account. Id. at 753. In this case, the account arose from an agreement t0 extend credit, was made in the ordinary course 0f Plaintiff‘s business 0f providing credit and the statements were generated and kept in accordance with Plaintiffs business procedures in a reasonably permanent manner, i.e., the account statements. (P’s CC UMF #1 & #4). Every month, Plaintiff mailed the statements to Defendant. (P’s CC UMF #4). If Defendant disputed any 0f the charges, she had sixty (60) days t0 submit a dispute t0 Plaintiff in compliance With the Consumer Credit Card Customer Agreement & Disclosure Statement. (P’s CC UMF #2). However, MEMORANDUM OF POINTS & AUTHORITIES Case N0. 21CV381264 A OLOOONOUO‘l-bQDN Defendant did not dispute any of the charges, or monthly billings, 0r any purchases Defendant made 0n this account. (P’s CC UMF #5). Accordingly, the evidence is undisputed that a book account was established between Plaintiff and Defendant. Accordingly, Defendant is liable for this debt 0n the basis 0f an open book account. IV. BREACH OF CONTRACT “A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, t0 d0 0r not t0 d0 a specified thing.” Robinson v. Magee (1858) 9 Cal. 81, 83. T0 recover damages for breach 0f contract from a defendant, plaintiff must prove that: 1) plaintiff and defendant entered into a contract; 2) plaintiff did all, 0r substantially all, 0f the significant things that the contract required it to d0; 3) all conditions required by the contract for defendant’s performance had occurred; 4) defendant failed t0 d0 something that the contract required him/her/it t0 d0; and 5) plaintiff was harmed by that failure. Cal. Civil Jury Instruction (CACI) §300 Defendant applied for a line 0f credit from Plaintiff, Wells Fargo Bank, N.A. (P’s BOC UMF #1). In response to the Defendant’s request, Plaintiff issued Defendant a credit card 0n July 19, 2013, Which was mailed to Defendant With a card holder agreement. (P’s BOC UMF #1). The agreement provided that activation 0r use of the card constituted acceptance of the terms of the card holder agreement. (P’s BOC UMF #2). A contract need not be signed t0 be considered “in writing,” i.e., a written offer may be accepted orally 0r by performance. Amen v. Merced County Title C0. (1962) 58 Cal.2d. 528, 532. In this case, the Defendant activated and/or used the credit card which constituted acceptance 0f the agreement. (P’s BOC UMF #2 ). Statements were sent to the address Defendant provided 0n the Credit Card Application and Agreement 0n a monthly basis from August 8, 2013 to December 8, 2020 showing the debits and credits incurred. (P’s BOC UMF #5 & #6). In Violation 0f the Consumer Credit Card Customer Agreement & Disclosure Statement, requiring payment 0f the amount due 0n the account, Defendant has failed and refused to make all 0f the payments t0 Plaintiff as set forth in the monthly statements. (P’s BOC UMF #2, #10, & #1 1). As a result, Plaintiff suspended Defendant’s charge privileges on the account. Defendant MEMORANDUM OF POINTS & AUTHORITIES Case N0. 21CV38 1264 A OLOOONOUO‘l-bQDN never disputed any of the charges. (P’s BOC UMF #9). The agreement also required the user t0 pay for the charges, interest and other fees incurred 0n the card. (P’s BOC UMF #1, #2, #3, & #4). The card balance Which remains due and owing is $15,413.54. (P’s BOC UMF #11 & #12). Defendant's failure to pay this amount, and the minimum payments throughout the account term, was a material breach 0f the agreement causing Plaintiff to incur damages 0f $15,413.54. Thus, Defendant is liable for the debt 0n the basis 0f breach 0f contract. V. DEFENDANT HAS A DUTY TO NOTIFY PLAINTIFF IN WRITING OF ANY BILL DISPUTE Pursuant to the Consumer Credit Card Customer Agreement & Disclosure Statement entered into between Plaintiff and Defendant, and pursuant t0 15 U.S.C. § 1666 and Regulation Z subsection 226.13(b)(1) of the Truth in Lending Act, a debtor has sixty (60) days from receipt 0f disputed charges t0 notify the creditor, in writing, 0f billing errors t0 preserve the debtor’s rights. 12 C.F.R. § 226.13 (2010). If the Defendant fails t0 object in writing pursuant t0 the right, the Defendant has waived the right t0 dispute the balance. Minskoflv. American Express 98 F.2d 703 (2nd Cir. 1996). As set forth in Plaintiff’ s Declaration in Support 0fMotion for Summary Judgment, the Defendant did not dispute billings in writing. (P’s CC UMF #5; P’s BOC UMF #9). The Defendant’s failure t0 timely dispute any charges prevents the Defendant from disputing the charge at a later date. VI. CONCLUSION Plaintiff has shown each element 0f its causes 0f action and Defendant’s affirmative defenses, if any, fail t0 raise any triable issues 0f fact material t0 this action. As such Plaintiff respectfully requests that summaryjudgment be granted in its favor against Defendant TITA F ARAFILES in the principal sum 0f $15,413.54, plus reasonable attorney’s fees and court costs. In the alternative, Plaintiffrequests summary adjudication be granted in its favor against Defendant as t0 each separate cause 0f action prayed for in Plaintiff s complaint as provided by law. / / / / / / / / / MEMORANDUM 0F POINTS & AUTHORITIES Case No. 21CV381264 A OLDWNODU‘l-bwk) If the court grants the motion, Plaintiff will submit a judgment and file a memorandum of costs forthwith. f) n I ‘ ‘ V .x Dated: January 18, 2022 W Claudia Gavrilescu, Esq., Attorney for Plaintiff MEMORANDUM OF POINTS & AUTHORITIES Case No. 21CV381264