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Cavalry Spv I Llc As Assignee Of Capital One Na , Vs. Ashley Hart .

Case Last Refreshed: 8 months ago

filed a(n) Collections - Creditor case in the jurisdiction of Ada County. This case was filed in Ada County Superior Courts with Dingeldein, Adam presiding.

Case Details for Cavalry Spv I Llc As Assignee Of Capital One Na , Vs. Ashley Hart .

Judge

Dingeldein, Adam

Filing Date

November 10, 2023

Category

A17 Creditor/ Debtor Collections ($10,000 Or Less)

Last Refreshed

November 15, 2023

Practice Area

Creditor

Filing Location

Ada County, ID

Matter Type

Collections

Case Events for Cavalry Spv I Llc As Assignee Of Capital One Na , Vs. Ashley Hart .

Type Description
Summons Issued
and Filed
New Case - Magistrate Civil for Creditor/Debtor
Summons
Complaint Filed
Civil Case Information Sheet
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Ruling

WELLS FARGO BANK, N.A. VS INNA KOSTINA, AN INDIVIDUAL
Jul 16, 2024 | 21SMCV01012
Case Number: 21SMCV01012 Hearing Date: July 16, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 16, 2024 CASE NUMBER 21SMCV01012 MOTION Motion to Vacate Judgment MOVING PARTY Plaintiff Wells Fargo Bank, N.A. OPPOSING PARTY none BACKGROUND On June 7, 2021, Plaintiff Wells Fargo Bank, N.A. (Plaintiff) filed a complaint for damages against Defendant Inna Kostina (Defendant). Default was entered against Defendant on August 31, 2021, and default judgment was entered against Defendant on December 11, 2021. Plaintiff now moves to vacate the judgment and dismiss the case without prejudice because Defendant has submitted a fraud claim under Code of Civil Procedure sections 473 and 128. The motion is unopposed. LEGAL STANDARD SECTION 473 RELIEF Per Code of Civil Procedure section 473, subdivision (b), a court may relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect . Code of Civil procedure section 473 includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right. ( Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick ).) Section 473 is a remedial statute to be applied liberally in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. ( Minick, supra , 3 Cal.App.5th at p. 24 [cleaned up].) The mandatory provision of section 473, subd. (b) requires an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect[.] Otherwise, relief under section 473 is discretionary. The party or the legal representative must seek such relief within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable]; People v. The North River Ins. Co . (2011) 200 Ca.App.4 th 712, 721 [motion for relief under section 473 must be brought within a reasonable time, in no case exceeding six months]). The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period. ( Arambula v. Union Carbide Corp . (2005) 128 Cal.App.4th 333, 340, citations omitted.) However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice (Code Civ. Proc., § 473, subd. (b).) ANALYSIS With regard to timing, judgment was entered on December 11, 2021, yet Plaintiff did not move to vacate the judgment until May 30, 2024, long after the requisite six months in which Plaintiff may bring the motion. The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period. ( Arambula v. Union Carbide Corp . (2005) 128 Cal.App.4th 333, 340, citations omitted.) Further, the motion is not supported by any declaration or affidavit of fault. Therefore, the Court cannot grant Plaintiff the requested relief under Code of Civil Procedure section 473. Moreover, the Court does not find Code of Civil Procedure section 128, subdivision (a)(8) to provide a legal basis to vacate the Judgment which was entered on the request of Plaintiff, especially when Plaintiff has not submitted any evidence in support of the motion. Conclusion Therefore, the Court denies Plaintiffs motion to vacate the judgment entered against Defendant on December 11, 2021. The Clerk of the Court shall provide notice of the Court ruling. DATED: July 16, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

CREDIT CORP SOLUTIONS, INC. ASSIGNEE OF SALLIE MAE BANK VS MARK FERRERA
Jul 17, 2024 | 23TRCV04042
Case Number: 23TRCV04042 Hearing Date: July 17, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Wednesday, July 17, 2024 Department M Calendar No. 8 PROCEEDINGS Credit Corp. Solutions, Inc. v. Mark Ferrera, et al. 23TRCV04042 1. Credit Corp. Solutions, Inc.s Special Anti-SLAPP Motion to Strike TENTATIVE RULING Credit Corp. Solutions, Inc.s Special Anti-SLAPP Motion to Strike is denied. Background Plaintiff filed the Complaint on December 4, 2023. Plaintiff alleges the following facts. Defendant owes a balance due from a loan provided to Defendant by Plaintiffs assignor. On February 5, 2024, Defendant filed a Cross-Complaint. Cross-Complainant alleges the following facts. Cross-Defendant maintains and practices a policy of attempting to collect on student loans without providing the mandated information, and without possessing and providing the mandated documentation. Cross-Defendant employs unfair and deceptive practices in their loan collection process. Cross-Complainant alleges the following causes of action for violations of: 1. California Fair Debt Buying Practices Act; 2. Rosenthal Fair Debt Collection Practices Act; 3. Private Student Loan Collections Reform Act; 4. Unfair Competition Law. Anti-SLAPP Motion to Strike Cross-Defendant filed a special motion to strike the Cross-Complaint under CCP § 425.16, also known as the anti-SLAPP (strategic lawsuit against public participation) statute. The anti-SLAPP procedures are designed to shield a defendants constitutionally protected conduct from the undue burden of frivolous litigation. Baral v. Schnitt (2016) 1 Cal.5 th 376, 393. The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Id. at 384. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. Baral, 1 Cal.5 th at 384 (citation omitted). The California Supreme Court has described this second step as a summary-judgment-like procedure. The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiffs evidence as true, and evaluates the defendants showing only to determine if it defeats the plaintiffs claim as a matter of law. [C]laims with the requisite minimal merit may proceed. Id. at 384-85 (citations omitted). The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing. Code Civ. Proc., § 425.16(f). Subdivision (f) does not require the moving party to ensure that the hearing is so scheduled. Karnazes v. Ares (2016) 244 Cal.App.4th 344, 352. In addition, the Court has the discretion to hear an untimely anti-SLAPP motion even if the Defendant failed to request leave of court to file an untimely motion. Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684. Here, the motion runs afoul of both time measures of CCP § 425.16(f). However, the Court exercises its discretion to hear the motion on the merits. I. Conduct in Furtherance of Right of Petition or Free Speech CCP § 425.16(e) states: As used in this section, act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue includes: . . . (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. City of Cotati v. Cashman (2002) 29 Cal.4 th 69, 78. The anti-SLAPP's statute focuses, not on the form of cross-complainants causes of action but, rather, cross-defendants underlying activity that gives rise to the asserted liability and whether that activity constitutes protected speech or petitioning. See Navellier v. Sletten (2002) 29 Cal.4th 82, 92. In Baral v. Schnitt (2016) 1 Cal.5 th 376, the court held that an anti-SLAPP motion may be utilized to strike specific allegations of protected activity without eliminating the entire cause of action or primary right. By referring to a cause of action against a person arising from any act of that person in furtherance of the protected rights of petition and speech, the Legislature indicated that particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. (§ 425.16(b)(1), italics added.) Thus, in cases involving allegations of both protected and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity. I d. at 395. A Cross-Complaint may be subject to an anti-SLAPP motion. However, [o]nly those cross-complaints alleging a cause of action arising from the plaintiff's act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action. (§ 425.16, subds. (b) and (d).) For example, a person may attempt to bring a SLAPP suit alleging that libelous allegations or statements were contained in the complaint itself. However, because defendant's allegations are privileged communications under Civil Code section 47, the suit would be merit-less. A compulsory cross-complaint on a related cause of action against the plaintiff (Code Civ. Proc., § 426.30, subd. (a)) would rarely, if ever, qualify as a SLAPP suit arising from petition activity. By definition, a related cause of action is a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. (Code Civ. Proc., § 426.10, subd. (c), italics added.) The SLAPP suit is not related to the transaction or occurrence which is the subject of the plaintiff's complaint, but arises out of the litigation process itself. Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 651(internal citation omitted). Here, a review of the Cross-Complaint and Complaint reveals that the Cross-Complaint arises out of the same transaction or occurrence as the Complaint. The Cross-Complaint does not arise from petitioning activity. See, Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 934. The gravamen of the Cross-Complaint involves allegations that Cross-Complainant is entitled to statutory damages and other relief based on Cross-Defendants unlawful debt collection activities. The Cross-Complaint does not itself arise from the simple act of filing the Complaint, but, instead upon the underlying factual disputes outlined in the Cross-Complaint. The gravamen of the causes of action and the underlying theory of recovery do not depend on the filing of the Complaint itself but upon the alleged underlying facts and conduct of Cross-Defendant during the debt collection process. However, the Court does note that certain specific allegations of the Cross-Complaint do implicate petitioning activity. Cross-Complainant alleged: In this case, the Plaintiff and Cross-Defendant Credit Corp Solutions, Inc. (Cross-Defendant or Credit Corp) sued Mr. Ferrera without providing the disclosures and documents required under state law. (Cross-Complaint, ¶ 4.) In addition, paragraphs 42 to 48, 58c, and 84c-f, of the Cross-Complaint, which attempts to outline failures within the Complaint, also implicate petitioning activity. Here, however, the principle delineated in Baral v. Schnitt (2016) 1 Cal.5 th 376 applies because these allegations referenced above do implicate protected conduct of filing litigation. The constitutional right to petition ... includes the basic act of filing litigation or otherwise seeking administrative action. Birkner v. Lam (2007) 156 Cal.App.4th 275, 281 . In this situation, it is appropriate to analyze whether to strike the specific allegations of the protected activity without eliminating the entirety of the causes of action. II. Probability of Prevailing on the Merits To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74. However, the Court must accept as true the evidence favorable to Plaintiff. See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. [Plaintiffs] second-[prong] burden is a limited one. [He] need not prove [his] case to the court [citation]; the bar sits lower at a demonstration of minimal merit [citation]. At this stage, [t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. The plaintiff must demonstrate this probability of success with admissible evidence. The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 531 (internal citations and quotations omitted). Since Cross-Defendant established the first prong (solely as to the specific allegations referenced above), Cross-Complainant must establish a probability of prevailing on the merits with respect to those allegations. See, Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74. To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim. See, Id. Here, as to the specific allegations of protected speech noted above, Cross-Complainant has met his burden to establish a probability of prevailing. Cross-Complainant submitted competent evidence supporting the alleged violations outlined within the allegations. (Decl., Mark Ferrera, ¶¶ 4-10.) Cross-Defendant did not submit any substantive evidence in connection with the motion. The only declaration that was submitted simply outlined attempts in service of documents. (Decl., Abril Saglio-Ruiz.) Instead, it appears that Cross-Defendant primarily relies upon the litigation privilege of Civ. Code § 47(b). However, the litigation privilege does not bar claims for violations of debt collection laws that regulate conduct in litigation. Moten v. Transworld Systems Inc . (2023) 98 Cal.App.5th 691, 706; Komarova v. National Credit Acceptance, Inc . (2009) 175 Cal.App.4th 324, 340. Therefore, Cross-Complainant has met his burden to show a probability of prevailing on the merits of the allegations. Thus, Cross-Defendants anti-SLAPP motion to strike the entirety of Cross-Complaint is denied. The anti-SLAPP motion to strike the allegations noted above that do implicate protected activity is also denied. Cross-Complainant is ordered to give notice of this ruling.

Ruling

Partners Personnel - Management Services LLC vs Powdercoat Services LLC
Jul 17, 2024 | Judge Thomas P. Anderle | 24CV00096
For Plaintiff Partners Personnel Management Services, LLC.: Cheryl A. Canty For Defendant Powdercoat Services, LLC: David Bland RULING For all reasons discussed herein, plaintiff Partners Personnel Management Services, LLC’s motion to enter judgment pursuant to defendants’ default under settlement and release agreement is GRANTED. The court will sign the proposed order submitted by plaintiff. Background: This action commenced on January 8, 2024, by the filing of the complaint by plaintiff Partners Personnel Management Services, LLC (“plaintiff”) against defendant Powdercoat Services, LLC, (“defendant”) for breach of contract, nonpayment on an open book account, and nonpayment on an account stated. As alleged in the complaint: In July 2017, defendant entered into a written agreement with plaintiff for the provision of staffing services. (Complaint, ¶ 5.) Between October 2023, and December 2023, defendant utilized plaintiff’s temporary labor and plaintiff paid the wages, taxes, benefits, and workers’ compensation premiums for the labor utilized by defendant. (Id., ¶ 7.) Despite demands for payment, defendant has not paid plaintiff, as agreed, between October 2023, and December 2023. (Id., at ¶ 9.) If defendant was served with the summons and complaint, plaintiff did not file proof of service of the same. On March 1, 2024, the parties entered into a written settlement agreement providing for the payment of $100,000.00, in equal payments made over a twelve-month period beginning on March 28, 2024. (Canty Dec., ¶ 3 & Exh. A.) The parties also executed a “Stipulation for Entry of Order Re: Court’s Retention of Jurisdiction Pursuant to California Code of Civil Procedure Section 664.6.” (Id., at ¶ 4 & Exh. B.) Defendant defaulted and, as of the date of the filing of the present motion, has failed to cure the default or make any payment. (Id., at ¶ 5.) The settlement agreement provides that in the event of default, plaintiff could recover interest from the date of default at the rate of ten percent plus costs and attorney’s fees. (Id., at ¶ 8.) Plaintiff seeks the balance owed pursuant to the agreement of $100,000.00, $40.00 for motion fees, interest of $2,000.00 and attorney’s fees of $5,050.00, for a total of $107,090.00. Plaintiff now moves to enter judgment pursuant to Code of Civil Procedure section 664.6, including agreed upon costs, attorney’s fees, and interest. No opposition or other responsive documents have been filed by defendant. Analysis Code of Civil Procedure section 664.6 provides: “(a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (b) For purposes of this section, a writing is signed by a party if it is signed by any of the following: “(1) The party. “(2) An attorney who represents the party. “(3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf. (c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court. (d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party’s express authorization shall, absent good cause, be subject to professional discipline.” “A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement.” (Hines v. Lukes (2008) Cal.App.4th 1174, 1182.) “If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.” (Id.) A court hearing a motion brought under section 664.6 may “receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment”, but may not “create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Ibid.) “In order for acceptance of a proposal to result in the formation of a contract, the proposal “ ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ ” [Citation.] A proposal “ ‘cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [¶] The terms of a contract are reasonably certain if they provide a basis for determining . . . the existence of a breach and for giving an appropriate remedy.’ ” [Citation.] If, by contrast, a supposed “ ‘contract’ ” does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. (See, e.g., 1 Williston on Contracts (4th ed. 1990, Lord) § 4:18, p. 414 [“It is a necessary requirement that an agreement, in order to be binding, must be sufficiently definite to enable the courts to give it an exact meaning.”]; see also Civ. Code § 3390, subd. 5 [a contract is not specifically enforceable unless the terms are “ ‘sufficiently certain to make the precise act which is to be done clearly ascertainable.’ ”] )” (Id. at pp. 811-812.) The parties entered into a valid and enforceable contract, with reasonably certain terms, and have agreed that the court retains jurisdiction to enforce the terms of the settlement agreement pursuant to Code of Civil Procedure section 664.6. As noted above, the parties executed and filed a “Stipulation for Entry of Order Re: Court’s Retention of Jurisdiction Pursuant to California Code of Civil Procedure Section 664.6.” “A written stipulation between attorneys recognizing jurisdiction of the court over the parties constitutes a General appearance by defendant.” (General Ins. Co. v. Superior Court (1975) 15 Cal.3d 449, 453.) The motion will be granted. The court has reviewed the proposed order submitted by plaintiff and will sign it as drafted.

Ruling

BANK OF AMERICA N.A. vs HERNANDEZ
Jul 19, 2024 | Frank Anthony Moschetti | CVCO2401955
BANK OF AMERICA VS MOTION FOR ORDER TO DEEM MATTERS CVCO2401955 HERNANDEZ ADMITTED BY BANK OF AMERICA Tentative Ruling: No tentative ruling will be issued.

Ruling

Creditors Adjustment Bureau, Inc., vs. Castro
Jul 15, 2024 | 23CVG-00362
CREDITORS ADJUSTMENT BUREAU, INC., VS. CASTRO Case Number: 23CVG-00362 Tentative Ruling on Motion for Terminating Sanctions: Plaintiff Creditors Adjustment Bureau, Inc. moves for terminating sanctions by striking Defendant Vincent Castro’s answer. Plaintiff also requests sanctions in the amount of $1,572.75 for each motion. Procedural Defect: As a procedural matter, this motion was served both via mail and email on May 9, 2024, and set for a hearing date of June 7, 2024. CCP § 1005(b) requires all moving papers be served 16 court days before the hearing. This notice period is extended by five calendar days if the motion is served by mail. Id. For service by email, the notice period is extended by two court days. CCP § 1010.6(a)(3). This timeframe is calculated by counting backwards from the hearing date but excluding the hearing date. CCP § 12c. Starting with the June 7, 2024, hearing date and counting backwards 16 court days (excluding the Court holiday of May 27, 2024) then five calendar days for out of state mailing this matter should have been served by mail no later than, May 4, 2024. For email the last day to serve the motion was April 24, 2024. The motion was served on May 7, 2024, and was untimely under either calculation. Based on insufficient statutory notice, the motion is denied. Merits of Motion: Even if the motion had been timely noticed, terminating sanctions are not warranted. Terminating sanctions are a “drastic penalty and should be used sparingly.” Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604. A terminating sanction should not generally be imposed by the court until less severe sanctions have been attempted and were unsuccessful. Id. No justification has been provided as to why terminating sanctions are appropriate in this context instead of lesser evidentiary or issue sanctions. Without additional evidence, terminating sanctions would be premature. The motion is DENIED. A proposed order was lodged with the Court which will be modified to reflect the denial. Review Hearing: This matter is also on calendar for review regarding trial re-setting. The Court designates this matter as a Plan II case and intends on setting it for trial no later than October 15, 2024. An appearance is necessary on today’s calendar to discuss available trial dates.

Ruling

AMERICAN EXPRESS NATIONAL BANK VS ANAHIT KHRIMIAN, ET AL.
Jul 16, 2024 | 23CHCV00539
Case Number: 23CHCV00539 Hearing Date: July 16, 2024 Dept: F43 Dept. F43 Date: 7-16-24 Case #23CHCV00539, American Express National Bank vs. Anahit Khrimian, et al. Trial Date: 11-4-24 SUMMARY JUDGMENT MOVING PARTY: Plaintiff American Express National Bank RESPONDING PARTY: No response has been filed. RELIEF REQUESTED Motion for Summary Judgment RULING : Motion is granted. SUMMARY OF ACTION Plaintiff American Express National Bank (Plaintiff) filed this action on February 27, 2023. Plaintiff alleged a cause of action of Common Counts for an open book account and an account stated against Defendants Anahit Khrimian and St. Jacob Hospice, Inc. (Defendants). This is a credit card collections case wherein Defendants opened an American Express credit card on June 25, 2015. (UMF 1.) In using the card, Defendants were bound by the terms of the cardmember agreement. (UMF 2, 4.) Defendants used the card to pay for goods and services. (UMF 5.) Plaintiff maintained an open book account for the card in the form of billing statements. (UMF 8.) Pursuant to the cardmember agreement and the most recent billing statement, a balance of $150,397.63 is now due on the account. (UMF 11; Touhidi Decl., Ex. B.) Based on the amount due on the account, Plaintiff moves for summary judgment on its complaint for an open book account and an account stated. Plaintiff filed its motion for summary judgment on January 3, 2024. No opposition has been filed. ANALYSIS The purpose of a motion for summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. ( Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The pleadings frame the issues for motions, since it is those allegations to which the motion must respond. ( Citation. ) ( Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472. ) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. ( Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established. (CCP § 437c(p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. ( Ibid .) Account Stated Plaintiff argues that summary judgment should be granted in its favor on the Account Stated cause of action because Plaintiff issued and submitted monthly billing statements on the account to Defendants and there are no unresolved disputes on the account. An account stated is an agreement, based on prior transactions between the parties, that all items of the account are true and that the balance struck is due and owing from one party to the other. ( Trafton v. Youngblood (1968) 68 Cal.2d 17, 25.) In order to establish an account stated, [i]t must appear that at the time of the statement an indebtedness from one party to other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing. ( H. Russell Taylors Fire Protection Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 726-727.) Assent may be expressly given or implied by the circumstances or the conduct of the debtor including failing to object. ( Trafton , supra , 68 Cal.2d at 25.) In addition, partial payment of a debt without objection and without otherwise indicating non-recognition of the validity of the debt is proof of the validity of the debt. ( Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 480.) Thus, if a statement is rendered and the debtor fails to object or reply within a reasonable time, the law implies an agreement that the account is correct as rendered. ( Maggio Inc. v. Neal (1987) 196 Cal.App.3d at 752-753.) Plaintiff argues that it can establish an account stated because it mailed billing statements to Defendants every month, and Defendants did not dispute the balance on the statements. In this case, there is a cardmember agreement between Plaintiff and Defendants. (UMF 14.) The cardmember agreement indicated that Defendants were required to make regular monthly payments on the account. (UMF 18.) Each month, Plaintiff mailed an account statement to Defendants at the address that Defendants provided to Plaintiff, and the account statement accurately reflected the amount that Defendants owed on the account. (UMF 20.) Finally, the account is considered to be truly stated because there are no unresolved disputes on the account. (UMF 22; see Maggio Inc. , supra , 196 Cal.App.3d at 752-753 (finding that the law implies an agreement that an account is truly stated when there are no outstanding disputes on the account).) Based on the foregoing and the evidence submitted by Plaintiff, Plaintiff has adequately stated a claim for an account stated, and there are no triable issues of material fact for this cause of action. Therefore, Plaintiff prevails as a matter of law on Plaintiffs claim for account stated. Plaintiffs motion is granted for this claim. Open Book Account Plaintiff argues that summary judgment should be granted in its favor on the Open Book Account cause of action because there is a book account as evidenced by detailed statements kept by Plaintiff. CCP § 337a(a) defines a book account as 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, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor ..., and is kept in a reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or to a backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. The California Supreme Court has explained it as follows: a book account is a detailed statement of debit/credit transactions kept by a creditor in the regular course of business, and in a reasonably permanent manner. ( Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579, fn. 5.) Courts construe CCP § 337a broadly and have adopted a liberal approach in defining the term book account. ( Costerisan v. DeLong (1967) 251 Cal.App.2d 768, 770-771 (Adverting to the broad language of section 337a of the Code of Civil Procedure, kept in any other reasonably permanent form and manner, it seems manifest that the Legislature intended to adopt the liberal approach&in defining the term book account.).) In Costerisan v. DeLong , the Court of Appeal found that ledger sheets kept in an office file cabinet constituted a book account under CCP § 337a. ( Id . at 771.) In that case, the Court of Appeal held that the critical determination was whether the sheets were permanent records and constitute[d] a system of bookkeeping as distinguished from mere private memoranda. ( Id . at 770; see also Fresno Credit Bureau v. Batteate (1951) 102 Cal.App.2d 545, 547-548 (holding that one ledger entry was sufficient to support a judgment based on an open book account).) Plaintiffs business records are computerized, and Plaintiff maintained an account of all the credits and debits on Defendants account in the form of billing statements that were stored on its internal network. (UMF 8.) These billing statements constituted an electronic book account that was created and maintained on Plaintiffs secure network. (See Costerisan , supra , 251 Cal.App.2d at 770-771.) Every month Plaintiff mailed billing statements to Defendants (UMF 8), and Defendants had 60 days to submit a dispute for any charges (UMF 9). There are no unresolved disputes on Defendants account (UMF 10.) Because there are no disputes, this means that an open book account has been established. The evidence is undisputed that a book account was established between Plaintiff and Defendants. Accordingly, there are no triable issues of material fact, and Defendants are liable as a matter of law for the open book account under Plaintiffs complaint. Plaintiffs motion is granted for this claim. CONCLUSION The motion for summary judgment is granted in its entirety. Damages are to be awarded in the amount of $150,397.63, and costs are to be requested via a memorandum of costs. Plaintiff is ordered to submit a proposed judgment. Moving party to give notice.

Ruling

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