Jefferson Capital Systems Llc V. Diaz, Xilayra

SIERRA CENTRAL CREDIT UNION VS. GOODWIN Case Number: 23CVG-00253 This matter is on calendar for review regarding status of bankruptcy. Plaintiff filed a Case Management Statement informing the Court that the stay is still in effect. The matter is continued to Tuesday, January 23, 2025 at 9:00 a.m. in Department 63 for status of bankruptcy. No appearance is necessary on today’s calendar.

TRUIST BANK VS. STOCK, ET AL. Case Number: 23CV-0203124 Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued on May 28, 2024 to Plaintiff Truist Bank and counsel, Gurstel Law Firm, P.C., for failure to timely serve pleadings on Defendant Chris Stock pursuant to California Rules of Court, Rule 3.110(b) and Local Rule of Court 3.03 and failure to timely seek default on Defendant Bright Nichols Stock pursuant to California Rules of Court, Rule 3.110(g). “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” CRC 3.110(b). Local Rule 3.03 mandates that Plaintiff serve Defendant with Local Form LF-CIV-100 and file a proof of service within the same timeframe. The Complaint in this matter was filed on September 1, 2023 and no proof of service has been filed for defendant Chris Stock. Plaintiff did not address defendant Chris Stock in the written response to the Order to Show Cause. CRC 3.110(g) requires Plaintiff to file a request for entry of default within 10 days after the time for service of the responsive pleading has elapsed. Defendant Bright Nichols Stock was served on October 7, 2023. The time for filing a responsive pleading expired November 6, 2023. No extension was requested or granted. No default was requested. On July 2, 2024, Plaintiff’s counsel filed a Declaration that asserts that a default packet “is pending to be drafted.” No explanation is given for the noncompliance with CRC 3.110. No default judgment has been requested. With no sufficient excuse for the delay, sanctions are imposed in the amount of $250.00 against Plaintiff and Plaintiff’s Counsel. The clerk is instructed to prepare a separate Order of Sanctions. The Court will issue an Order to Show Cause Re: Dismissal pursuant to Gov’t Code Section 68608(b) for Plaintiff’s failure to timely serve the complaint and LF-CIV-100, failure to timely seek default judgment, and failure to timely prosecute. The hearing on the Order to Show Cause Re: Dismissal is set for Monday, September 9, 2024, at 8:30 a.m. in Department 63. The clerk is instructed to prepare a separate Order to Show Cause Re: Dismissal. This matter is also calendared on Monday, September 9, 2024, at 9:00 a.m. in Department 63 for review regarding status of service. ****************************************************************************************** 9:00 a.m. – Review Hearings ******************************************************************************************

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.

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.

Matter on the Discovery Calendar for Monday, Jul-15-2024, Line 3, PLAINTIFFS YULONG ECO-MATERIALS LTD, and EV BIOLOGICS CORP.'S, FORMERLY KNOWN AS YULONG, Motion To Compel Further Responses By Ridgway Smith And For Monetary Sanctions. Continued to August, 6, 2024, on the court's motion. No JPT available. (D302)

Matter on calendar for Tuesday, July 16, 2024, Line 3, PLAINTIFF JPMORGAN CHASE BANK. N.A.'s Motion For Order That Matters In Request For Admission Of Truth Of Facts Be Deemed Admitted. The matter is continued to August 12, 2024, on the court's motion. =(302/JPT).

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.

CAVALRY SPV I, LLC AS Motion for Order to Deem Matters Admitted CVPS2305706 ASSIGNEE OF CITIBANK, N.A. by CAVALRY SPV I, LLC AS ASSIGNEE vs WISE OF CITIBANK, N.A. Tentative Ruling: The unopposed Motion of Plaintiff, Cavalry SPCV I, LLC, for Order Deeming Admissions Admitted is GRANTED. Requests for Admissions 1 through 5, inclusive, are deemed admitted for all purposes in this litigation.