Preview
I
1 JANET L. BROWNI‘Siate Bar No. 208602) '
\\% JESSICA M. GARCIA 314298 ~
(I Jr: V
2 . ZWICKER & ASSOCIATES, P. C.
1320 WILLOW PASS ROAD, SUITE 730
E),
F E E ECOUNTY
3 CONCORD, CA 94520 SAN MATEO
Telephone. (925)689--7070
4 Facsimile: (925)689-7077 . SEP 1 7 2018
I
5
Attorneys for Plaintiff
6
Tau—05544 -
I,
mgrfiirandum of Points and Authorities in Sup;
-
.
E »
'
1382511
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
‘_”NW“ “N“10 “NIH“
__
REDWOOD CITY JUDICIAL DISTRICT — LIMITED CIVIL CASE
11 AMERICAN EXPRESS NATIONAL ) N0. 17CLJ 05544
BANK, ) .
-
12 MEMORANDUM OF POINTS
)
Plaintiff, -
) AND AUTHORITIES IN SUPPORT
13 OF PLAINTIFF’S MOTION FOR
g )
U h VS. SUMMARY JUDGMENT OR IN THE
14
)
57,5 ., E g ) ALTERNATIVE SUMMARY
E 3%
ROSANNA PITTELLA, et a1., ) ADJUDICATION
15
U o 2 §. §. )
-
a 5 :53 fl Defendant. ) Date: December 18, 2018
4 '5' 16
E g E ) Time: 9:00 am.
’
¥ d U a
‘g’ . .
e *5
Date ActIon Fllcd: 12/5/17
N
g 18
g Trial Date: N/A
'
19 _
COMES NOW plaintiff in the above-entitled action and submits the following
20
memorandum of points and authorities insupport of its motion for' summary judgment,
21
"
22 .
1. INTRODUCTION.
23
This action is a simple collection case. Plaintiff’s complaint as filed states facts sUffIcient
24
to constitute a cause of action against the Defendant ROSANNA PITTELLA, aE- it alleges that.
25
within four years last past, the defendant became indebted to plaintiff for goodS,‘ wares, and
26
merchandise obtained from plaintiff AMERICAN EXPRESS NATIONAL BANK, at the
27
defendant’s request, pursuant to a line of credit defendant had obtained.
28
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF ’8 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
I
Defendant applied to plaintiff for a credit card account and entered into a written credit
card account agreement with plaintiff for the account number ending in 1000 (the “Account”) on
12/17/14. See Plaintiff’s Separate Statement of Undisputed Material Facts #1 and #10
I
(“Separate Statement”).
The defendant agreed to be bound by the terms and conditions set forth in the
OOOflQM-PMNH
Cardmember Agreement when the defendant applied for, received or used the credit card
account. In. addition, the Cardmember Agreement provides that use of the card constitutes.
acceptance of the agreement. (See Separate Statement #2 and #11).
Afier receiving the'credit Card, purchases were made by the use of the account and the
y—I
‘
charging of various-goods, services and cash advances. Plaintiff complied with its obligations
r—A
under the Agreement by paying vendors for all charges that were made on Defendant’s account.
H
The principal balance of $5,836.50. prayed for in the complaint results from the defendant’s use
r—A
C
730
of said account. (See Separate Statement #3, #8 and #12, #17).
P Sums
r—A
94520
Defendant received billing statements, yet failed to produce any evidence indicating that
925689-7070
925.689.7077
r—t
ROAD,
w portion of any billing statement.
ASSOCIATES,
CA
Defendant disputed (See Separate Statement #4, #5 and
I
PASS
H“...
8: CONCORD,
#13, #14).
FACSIMILE:
TELEPHONE:
WILLOW
ZWICKER
The defendant defaulted by failing to make payments on the account as they became due.
p—I
I
1320
(See Separate Statement #6 and #15).
r—I
The last payment applied to the account was on or about .01/09/17. (See Separate
[\J
Statement #7 and #16).
[\J
The defendant has filed an answer to the complaint, which answer does not state facts
[\J
sufficient to constitute a defense to any of the material allegations in the complaint. As such,
N
plaintiff is accordingly entitled to summary judgment in this matter.
N
N 2. THE COURT IS EMPOWERED TO AWARD PLAINTIFF SUMMARY.
JUDGMENT.
N,N
California Code of Civil Procedure § 437c authorizes the entry of summary judgment.
N
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF .
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
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 Ca1.2nd 412, 417, 42 Cal.Rptr. 449, 398 P.2d-785; Coyne v. Krempels
OOOVQM-hwmv—i
(1950) 36 Ca1.2nd 257,262,223, P.2d 244. Summary judgment is designed to protect plaintiff
from harassing delays that ordinarily accompany evasive, spurious, and meritless defenses.
Buffalo Arms Inc. v. RemlerCo. (1960) 179 Ca1.App.2d 700, 702—03, 4 Cal.Rptr. 103.
C.C.P. § 4370 (p)(1) provides;
“A plaintiff or cross-complainant has met his or her burden of showing
y—A
O
if
that there is no defense to .a cause of action that party has proved each
element of the cause of action entitling the party to 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 or more material facts exists as to that cause of action or a
defense thereto. The defendant or cross-defendant may not rely upon the
C
730
mere allegations or denials of its pleadings to show that a triable issue of
P Sums
material fact exists but, instead,,shall set forth the specific facts showing
94520
that a triable issue of material facts exists as to that cause of action or a
925689-7070
995.689.7077
ASSOCIATES,
ROAD,
defense thereto.” '
CA
PA'ss
& CONCORD,
FACSIMILE:
In contrast to the law that prevailed prior to the 1992 amendments to 43 7c, plaintiff does
TELEPHONE:
WILLOW
ZWICKER
NNNNNNNNNF—‘h—‘b—lb—AHHr—lb—lb—l
1320
not have the burden of disproving any alleged affirmative defenses. 3 Weil & Brown, California
Practice Guide: Civil Procedure Before Trial, sections 10:234-234.2.
OOflam-PWNHOWOOQQMAWNb—I
Here, as the evidence will show, there is no triable issue as to any material fact contained
in Plaintiffs complaint and thus Plaintiff is entitled to summary judgment as a matter of law.
3. THE DEFENDANT FAILED TO REPAY MONIES DUE UNDER THE
'
AGREEMENT.
California Civil Code -§1747.02 (b) defines an “Accepted Credit Card” as follows:
“Accepted Credit Card” means any credit card that the cardholder has
requested or applied for and received or has signed, or has used, or has
authorized another person for use, for the purpose of obtaining money,
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF ’5 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
_
'
ADJUDICATION ‘
'
property, labor, or services on credit. Any credit card issued in renewal of,
or in substitution for, an accepted credit card becomes an accepted credit
N
card when received by the cardholder, whether the credit card is issued by
the same or a successor card issuer.”
Under Anastas V. American Savings Bank (9th Cir. 1996) 94 F.3d 1280, the use of a
credit card constitutes a representation of an intent to pay. Each individual credit card transaction
\OOO\]O\UI-I>UJ
is 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. E at 1285. Thus, it
m
is the use of the credit card and not the production of a signed credit card application or charge
n slip which evidences the existence of the agreement.
u 1
Here, all records and statements show that Defendant applied to plaintiff for a credit card
‘5’;
n account, entered into a written credit card account agreement with plaintiff and was assigned the
Q2 c
mt:
\p [\R M
H‘ I.
awgfia account number ending in 1000. By electing to make purchases on this account, Defendant
saagg w
UO¢9.
gmufifi agreed to be bound by all of the terms and conditions set forth in the Agreement, and is therefore
ED~ONO\
£22m
hozd
naguo
m
liable for purchases charged to this account. Furthermore, the documents are unequivocal in
moZEE
muomg}
MEUH<
I“ n showing that Defendant breached the Agreement by failing and refusing to continue making the
:3O m
NaF1 monthly payments on the credit card accounts. As such, Defendant clearly breached not only the
w
20
Agreement, but under W, the unilateral contract formed by and through the use of the credit
card.
m
22
4. AN ACCOUNT WAS STATED BETWEEN THE PARTIES
23
“When a creditor renders a bill or statement to the debtor, it becomes an account stated
24
when the debtor accepts it as correct or fails to object to it within a reasonable time.” California
25
Debt Collection Practice (CEB 1967) page 69. “If the amount is sent to the debtor and he does
26
not object to it within a reasonable time, his acquiescence will be taken as an admission that the
27
account is truly stated.” Trafton v. Youngblood (1968) 69 Cal. 2d 17; Maggio, Inc. v. Neal
28
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
p—a
\ x
(1987) 196 Cal.App.3d 745.
N I
Here, Plaintiff submitted numerous billing statements to Defendant each month. There
L»
are no documents or evidence presented to Plaintiff or to this Court indicating that Defendant
-l>
objected to any billing statement submitted by Plaintiff by submitting such objection as required
U!
under Civil Code 1747.02, the federal Fair Credit Billing Act applicable to such account (15
O'\
USC Section 1666 et seq.), and in accordance with the terms of the Agreement.
\1
00
5. AN OPEN BOOK ACCOUNT EXISTED BETWEEN THE PARTIES
NO
The elements of a book account are set out in California Code of Civil Procedure, §337a,
)—
as follows:
r—A
"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
r—t
v—A
the debits and credits in connection therewith, against whom and in,
730
favor of whom entries are made, is entered in the regular course of
P.C.
SUITE
)—A
business as conducted by such creditor ..., and if
kept in a
94520
921689-7070
reasonably permanent form and manner and is (1) in a bound book,
975.689.7077
or (2) on a sheet or sheets fastened in a book or to a backing but
r—A
ROAD,
ASSOCIATES,
CA
PASS
,_.
detachable there from, or (3) on a card or cards of a permanent
8: CONCORD,
character, or is kept in any other reasonably permanent form and
manner. "
FACSIMILE:
TELEPHONE:
>—A
WILLOW
ZWICKER
r—A
1320
WflQm-bWNr—‘OWOOQQU’I-PWNHO
Like many business operations in the “electronic age”, Plaintiff’s business records are
N'H
largely computerized. Each month, the charges placed on a customer’s account are registered by
Plaintiff’s computer and an invoice is generated. Statements showing credits, payments, current
N
interest on cash advances and purchases, and outstanding balances are then generated from these
N
[\J
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
N
the amount due from. the customer to Plaintiff. Section 337a was held to contain “broad
N
[<3
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
N
Bureau v. Batteate (1951) 102 Cal. App. 2d 545, 227 Pac. 2d 851 (the court held that one ledger
N
.. 5 .
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
, entry was sufficient to support a judgment based on an open book account).
N
A book account is evidence of delivery of the goods sold to a defendant, or services or
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 of the subject is such as not to
render better evidence attainable. The reason or the rule supposes the fact of which an entry is
\OOOQONUIAUJ
made to be peculiarly within the knowledge of the party, and the entry to 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 (1860) 17 Cal. 57.
10
In this case, the evidence is undisputed that a book account was established between
11
Plaintiff and Defendant, and that Defendant is liable under the Complaint filed herein.
12
13 '
C
730
6. INABILITY TO PAY IS NOT A DEFENSE
P SUITE 14
94520
Settlement discussions and defendant’s subjective belief regarding his/her ability to pay
925689-7070
15
925.689.7077
ROAD,
ASSOCIATES,
CA the debt are irrelevant to the merits. See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465,
PASS 16
&; CONCORD, 479, regarding Wells Fargo’s “’hard line’ in repayment negotiations.” California “does not
FACSIMILE:
TELEPHONE:
17
of moderation in the enforcement of legal rights.” (MD
WILLOW
ZWICKER impose any affirmative duty See also
1320
18
AB Group v. Wertin (1997) 59 Cal.App.4th 1022, 1028, stating:
19
At the core of Wertin’s argument, however, is an idea that
20 dare not speak itself plainly. What Wertin is really saying,
unadorned, is his/her: By the simple act of not paying a lawful
21 debt, a debtor can force a discount from a creditor because of the
risks and collection expenses associated with litigation. . . .
22
Wertin appears to have overlooked the elementary
23 propoSition that a borrower is legally obligated to repay his/her or
her loans. [Citation] . . .
24
Equity can hardly tolerate, much less impose as a duty, the
25 deliberate attempt to deprive a contracting party of the fruits of
if
his/her or her bargain, even the bargain is a loan transaction.
26
27
28
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
7. INTEREST
Interest accrues as a matter of law. See Civil Code §§ 3287, 3289 (interest). The only
way defendant can avoid his/her obligation is to allege and make a proper tender and deposit in
court. See Civil Code § 1025. This has not been done.
\OOO\]O\U1-l>-U)N>—d
8. CONCLUSION
Plaintiff respectfully submits that good cause exists for the court to award plaintiff
summary judgment against defendant(s) ROSANNA PITTELLA in the principal sum of
.
$5,836.50, plus costs pursuant to a memorandum of costs.
H O
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Dated: 945’) f
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N Respectfully submitted,
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3,. @ZWICKER & ASSOCIATES, PC.
A Law Firm Engaged in Debt Collection
JANET L. BROWN / JESW
Attorneys for Plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF ’8 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY
ADJUDICATION
Preview
I 1 JANET L. BROWNI‘Siate Bar No. 208602) ' \\% JESSICA M. GARCIA 314298 ~ (I Jr: V 2 . ZWICKER & ASSOCIATES, P. C. 1320 WILLOW PASS ROAD, SUITE 730 E), F E E ECOUNTY 3 CONCORD, CA 94520 SAN MATEO Telephone. (925)689--7070 4 Facsimile: (925)689-7077 . SEP 1 7 2018 I 5 Attorneys for Plaintiff 6 Tau—05544 - I, mgrfiirandum of Points and Authorities in Sup; - . E » ' 1382511 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO ‘_”NW“ “N“10 “NIH“ __ REDWOOD CITY JUDICIAL DISTRICT — LIMITED CIVIL CASE 11 AMERICAN EXPRESS NATIONAL ) N0. 17CLJ 05544 BANK, ) . - 12 MEMORANDUM OF POINTS ) Plaintiff, - ) AND AUTHORITIES IN SUPPORT 13 OF PLAINTIFF’S MOTION FOR g ) U h VS. SUMMARY JUDGMENT OR IN THE 14 ) 57,5 ., E g ) ALTERNATIVE SUMMARY E 3% ROSANNA PITTELLA, et a1., ) ADJUDICATION 15 U o 2 §. §. ) - a 5 :53 fl Defendant. ) Date: December 18, 2018 4 '5' 16 E g E ) Time: 9:00 am. ’ ¥ d U a ‘g’ . . e *5 Date ActIon Fllcd: 12/5/17 N g 18 g Trial Date: N/A ' 19 _ COMES NOW plaintiff in the above-entitled action and submits the following 20 memorandum of points and authorities insupport of its motion for' summary judgment, 21 " 22 . 1. INTRODUCTION. 23 This action is a simple collection case. Plaintiff’s complaint as filed states facts sUffIcient 24 to constitute a cause of action against the Defendant ROSANNA PITTELLA, aE- it alleges that. 25 within four years last past, the defendant became indebted to plaintiff for goodS,‘ wares, and 26 merchandise obtained from plaintiff AMERICAN EXPRESS NATIONAL BANK, at the 27 defendant’s request, pursuant to a line of credit defendant had obtained. 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ’8 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION I Defendant applied to plaintiff for a credit card account and entered into a written credit card account agreement with plaintiff for the account number ending in 1000 (the “Account”) on 12/17/14. See Plaintiff’s Separate Statement of Undisputed Material Facts #1 and #10 I (“Separate Statement”). The defendant agreed to be bound by the terms and conditions set forth in the OOOflQM-PMNH Cardmember Agreement when the defendant applied for, received or used the credit card account. In. addition, the Cardmember Agreement provides that use of the card constitutes. acceptance of the agreement. (See Separate Statement #2 and #11). Afier receiving the'credit Card, purchases were made by the use of the account and the y—I ‘ charging of various-goods, services and cash advances. Plaintiff complied with its obligations r—A under the Agreement by paying vendors for all charges that were made on Defendant’s account. H The principal balance of $5,836.50. prayed for in the complaint results from the defendant’s use r—A C 730 of said account. (See Separate Statement #3, #8 and #12, #17). P Sums r—A 94520 Defendant received billing statements, yet failed to produce any evidence indicating that 925689-7070 925.689.7077 r—t ROAD, w portion of any billing statement. ASSOCIATES, CA Defendant disputed (See Separate Statement #4, #5 and I PASS H“... 8: CONCORD, #13, #14). FACSIMILE: TELEPHONE: WILLOW ZWICKER The defendant defaulted by failing to make payments on the account as they became due. p—I I 1320 (See Separate Statement #6 and #15). r—I The last payment applied to the account was on or about .01/09/17. (See Separate [\J Statement #7 and #16). [\J The defendant has filed an answer to the complaint, which answer does not state facts [\J sufficient to constitute a defense to any of the material allegations in the complaint. As such, N plaintiff is accordingly entitled to summary judgment in this matter. N N 2. THE COURT IS EMPOWERED TO AWARD PLAINTIFF SUMMARY. JUDGMENT. N,N California Code of Civil Procedure § 437c authorizes the entry of summary judgment. N 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF . PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 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 Ca1.2nd 412, 417, 42 Cal.Rptr. 449, 398 P.2d-785; Coyne v. Krempels OOOVQM-hwmv—i (1950) 36 Ca1.2nd 257,262,223, P.2d 244. Summary judgment is designed to protect plaintiff from harassing delays that ordinarily accompany evasive, spurious, and meritless defenses. Buffalo Arms Inc. v. RemlerCo. (1960) 179 Ca1.App.2d 700, 702—03, 4 Cal.Rptr. 103. C.C.P. § 4370 (p)(1) provides; “A plaintiff or cross-complainant has met his or her burden of showing y—A O if that there is no defense to .a cause of action that party has proved each element of the cause of action entitling the party to 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 or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the C 730 mere allegations or denials of its pleadings to show that a triable issue of P Sums material fact exists but, instead,,shall set forth the specific facts showing 94520 that a triable issue of material facts exists as to that cause of action or a 925689-7070 995.689.7077 ASSOCIATES, ROAD, defense thereto.” ' CA PA'ss & CONCORD, FACSIMILE: In contrast to the law that prevailed prior to the 1992 amendments to 43 7c, plaintiff does TELEPHONE: WILLOW ZWICKER NNNNNNNNNF—‘h—‘b—lb—AHHr—lb—lb—l 1320 not have the burden of disproving any alleged affirmative defenses. 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial, sections 10:234-234.2. OOflam-PWNHOWOOQQMAWNb—I Here, as the evidence will show, there is no triable issue as to any material fact contained in Plaintiffs complaint and thus Plaintiff is entitled to summary judgment as a matter of law. 3. THE DEFENDANT FAILED TO REPAY MONIES DUE UNDER THE ' AGREEMENT. California Civil Code -§1747.02 (b) defines an “Accepted Credit Card” as follows: “Accepted Credit Card” means any credit card that the cardholder has requested or applied for and received or has signed, or has used, or has authorized another person for use, for the purpose of obtaining money, 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ’5 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY _ ' ADJUDICATION ‘ ' property, labor, or services on credit. Any credit card issued in renewal of, or in substitution for, an accepted credit card becomes an accepted credit N card when received by the cardholder, whether the credit card is issued by the same or a successor card issuer.” Under Anastas V. American Savings Bank (9th Cir. 1996) 94 F.3d 1280, the use of a credit card constitutes a representation of an intent to pay. Each individual credit card transaction \OOO\]O\UI-I>UJ is 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. E at 1285. Thus, it m is the use of the credit card and not the production of a signed credit card application or charge n slip which evidences the existence of the agreement. u 1 Here, all records and statements show that Defendant applied to plaintiff for a credit card ‘5’; n account, entered into a written credit card account agreement with plaintiff and was assigned the Q2 c mt: \p [\R M H‘ I. awgfia account number ending in 1000. By electing to make purchases on this account, Defendant saagg w UO¢9. gmufifi agreed to be bound by all of the terms and conditions set forth in the Agreement, and is therefore ED~ONO\ £22m hozd naguo m liable for purchases charged to this account. Furthermore, the documents are unequivocal in moZEE muomg} MEUH< I“ n showing that Defendant breached the Agreement by failing and refusing to continue making the :3O m NaF1 monthly payments on the credit card accounts. As such, Defendant clearly breached not only the w 20 Agreement, but under W, the unilateral contract formed by and through the use of the credit card. m 22 4. AN ACCOUNT WAS STATED BETWEEN THE PARTIES 23 “When a creditor renders a bill or statement to the debtor, it becomes an account stated 24 when the debtor accepts it as correct or fails to object to it within a reasonable time.” California 25 Debt Collection Practice (CEB 1967) page 69. “If the amount is sent to the debtor and he does 26 not object to it within a reasonable time, his acquiescence will be taken as an admission that the 27 account is truly stated.” Trafton v. Youngblood (1968) 69 Cal. 2d 17; Maggio, Inc. v. Neal 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION p—a \ x (1987) 196 Cal.App.3d 745. N I Here, Plaintiff submitted numerous billing statements to Defendant each month. There L» are no documents or evidence presented to Plaintiff or to this Court indicating that Defendant -l> objected to any billing statement submitted by Plaintiff by submitting such objection as required U! under Civil Code 1747.02, the federal Fair Credit Billing Act applicable to such account (15 O'\ USC Section 1666 et seq.), and in accordance with the terms of the Agreement. \1 00 5. AN OPEN BOOK ACCOUNT EXISTED BETWEEN THE PARTIES NO The elements of a book account are set out in California Code of Civil Procedure, §337a, )— as follows: r—A "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 r—t v—A the debits and credits in connection therewith, against whom and in, 730 favor of whom entries are made, is entered in the regular course of P.C. SUITE )—A business as conducted by such creditor ..., and if kept in a 94520 921689-7070 reasonably permanent form and manner and is (1) in a bound book, 975.689.7077 or (2) on a sheet or sheets fastened in a book or to a backing but r—A ROAD, ASSOCIATES, CA PASS ,_. detachable there from, or (3) on a card or cards of a permanent 8: CONCORD, character, or is kept in any other reasonably permanent form and manner. " FACSIMILE: TELEPHONE: >—A WILLOW ZWICKER r—A 1320 WflQm-bWNr—‘OWOOQQU’I-PWNHO Like many business operations in the “electronic age”, Plaintiff’s business records are N'H largely computerized. Each month, the charges placed on a customer’s account are registered by Plaintiff’s computer and an invoice is generated. Statements showing credits, payments, current N interest on cash advances and purchases, and outstanding balances are then generated from these N [\J 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 N the amount due from. the customer to Plaintiff. Section 337a was held to contain “broad N [<3 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 N Bureau v. Batteate (1951) 102 Cal. App. 2d 545, 227 Pac. 2d 851 (the court held that one ledger N .. 5 . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION , entry was sufficient to support a judgment based on an open book account). N A book account is evidence of delivery of the goods sold to a defendant, or services or 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 of the subject is such as not to render better evidence attainable. The reason or the rule supposes the fact of which an entry is \OOOQONUIAUJ made to be peculiarly within the knowledge of the party, and the entry to 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 (1860) 17 Cal. 57. 10 In this case, the evidence is undisputed that a book account was established between 11 Plaintiff and Defendant, and that Defendant is liable under the Complaint filed herein. 12 13 ' C 730 6. INABILITY TO PAY IS NOT A DEFENSE P SUITE 14 94520 Settlement discussions and defendant’s subjective belief regarding his/her ability to pay 925689-7070 15 925.689.7077 ROAD, ASSOCIATES, CA the debt are irrelevant to the merits. See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, PASS 16 &; CONCORD, 479, regarding Wells Fargo’s “’hard line’ in repayment negotiations.” California “does not FACSIMILE: TELEPHONE: 17 of moderation in the enforcement of legal rights.” (MD WILLOW ZWICKER impose any affirmative duty See also 1320 18 AB Group v. Wertin (1997) 59 Cal.App.4th 1022, 1028, stating: 19 At the core of Wertin’s argument, however, is an idea that 20 dare not speak itself plainly. What Wertin is really saying, unadorned, is his/her: By the simple act of not paying a lawful 21 debt, a debtor can force a discount from a creditor because of the risks and collection expenses associated with litigation. . . . 22 Wertin appears to have overlooked the elementary 23 propoSition that a borrower is legally obligated to repay his/her or her loans. [Citation] . . . 24 Equity can hardly tolerate, much less impose as a duty, the 25 deliberate attempt to deprive a contracting party of the fruits of if his/her or her bargain, even the bargain is a loan transaction. 26 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 7. INTEREST Interest accrues as a matter of law. See Civil Code §§ 3287, 3289 (interest). The only way defendant can avoid his/her obligation is to allege and make a proper tender and deposit in court. See Civil Code § 1025. This has not been done. \OOO\]O\U1-l>-U)N>—d 8. CONCLUSION Plaintiff respectfully submits that good cause exists for the court to award plaintiff summary judgment against defendant(s) ROSANNA PITTELLA in the principal sum of . $5,836.50, plus costs pursuant to a memorandum of costs. H O r—n P‘ Dated: 945’) f >—a N Respectfully submitted, RC. §—A )-A p—t ,_. r—A v—A h 03 LII Ox \I 00 3,. @ZWICKER & ASSOCIATES, PC. A Law Firm Engaged in Debt Collection JANET L. BROWN / JESW Attorneys for Plaintiff ('1 H ,_. \O [\J O NH N [\J U). N NA N U] N O\ N \l N 00 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ’8 MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION