Preview
I,
i4.
b—‘ -
JANET L. BROWNIState Bar No. 208602)
I
JESSICA M. GARCIA 314298
\9\\€I 4.
ZWICKER & ASSOCIATES RC.
1320 WILLOW PASS ROAD, SUITE 730 F E 1.4 E m
CONCORD, CA 94520 SAN MATEO COUNTY
'Telephone: (925)689-7070
Facsimile: (925)689-7077 SEP 17 2018
\o~oo\10\m.l>mt\3
Attorneys for Plaintiff
,
A
M
By
for
Clerk
DEPUTY CLERK
Court
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
REDWOOD CITY JUDICIAL DISTRICT — LIMITED CIVIL CASE
AMERICAN EXPRESS NATIONAL ) No. 17CLJ05544
BANK, )
_ _
) PLAINTIFF’S STATEMENT OF
Plamtlffa ) UNDISPUTED MATERIAL FACTS
RC.
730
VS '
AND REFERENCE TO
SUITE
94520
p—Ap—Av—Ar—Ir—ly—tHr—I
I
I SUPPORTING EVIDENCE IN
)
ASSOCIATES,
ROAD,
956897070
925.689.7077
\lONkII-hUJNHO
) SUPPORT OF MOTION FOR
CALIFORNIA ROSANNA PITTELLA , et a1., ) SUMMARY JUDGMENT OR IN THE
PAss ) ALTERNATIVE SUMMARY
8: Defendant ) ADJUDICATION
II
FACSIMILE:
TELEPHONE:
WILLOW CONCORD,
(CCP § 437c)
I
I
ZWICKER
1320 Date: December 18, 2018
__ Time: 9:00 am.
-
Dept: LM _
Separate Statement of Undisputed
Material Fac
138252
24 ‘
Date Action Filed: 12/5/17
Trial Date: N/A
III III IIIIIIIII
”III" I”,
IIIIIIIII -__,__ *_ __/
,
,.
Plaintiff AMERICAN EXPRESS NATIONAL BANK submits the folIOwing separate
2.2
23 statement of undisputed material facts and reference to supporting evidence puIsuant to C. C. P §
24 4370 (b)(1). These include every essential element to entitle plaintiff to a judgment as matter of.
a
25
law as to defendant’s account number ending 1n 1000:
26
27
28
‘
. 7 .
PLAINTIFF’ S'STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY ADJUDICATION
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MOVING PARTY’S UNDISPUTED MATERIAL
FACTS AND SUPPORTING EVIDENCE
1. Defendant» applied to plaintiff for a credit card
account and entered into a written credit card
W
ISSUE #1- Plaintiff Has EstabLIished a Cause of Action for Open Book Account
RESPONSES
account agreement with plaintiff for the account
\OOO\IO\UI-I>UJ
number ending in 1000 (the “Account”) on
12/17/14.
Paragraphs #7, 9 of Plaintiff’s declaration; Exhibit
“A”I
10 . The defendant agreed to be bound by the terms and
conditions set forth in the Cardmember Agreement
11
when the defendant applied for, received or used
12 the credit card account. In addition, the
Cardmember Agreement provides that use of the
13 card constitutes acceptance of the agreement.
730
RC.
SUITE 14 Paragraphs #4, 7 of Plaintiff s declaration; Exhibits
94520
925.689-.7070
‘(A’9’ ‘6B” and 66C”.
15
925.689.7077
ROAD,
ASSOCIATES,
CA
PASS 16
& CONCORD,
TELEPHONE:
FACSIMILE:
. After receiving the credit card, purchases were
ZWICKER
WILLOW
17 made by the use of the account and the charging of
various goods, services and cash advances.
18
1320
Plaintiff complied with its obligations under the
19 Agreement by paying vendors for all charges that
were made on Defendant’s account. The principal
20' balance of $5,836.50 prayed for in the complaint
results from the defendant’s use of said account.
21
22 Paragraphs #11, 15 of Plaintiff s declaration;
Exhibits (‘A’,, (CB3), (CC), and “D”I
23
24 . Payments and charges are duly reflected on the
computerized credit card record regularly kept and
25
maintained by plaintiff in connection with
26 defendant’s credit card accounts. Those records
were provided on a monthly basis in the form of
27 billing statements to defendant reflecting all debits
28
_
8
PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY ADJUDICATION
and credits to defendant’s credit account.
[9
Paragraphs #8, 11, 12, 13 of Plaintiffs declaration;
Exhibits “B”, “C” and “D”.
. There is no record of the defendant asserting a
valid and unresolved objection to the balance
shown as due and owing on the monthly statements
\OOOQQUILUJ
provided to the defendant.
.
Paragraph #14 of Plaintiffs declaration.
6. Before 05/19/17, the defendant defaulted in making
1o the payments due under the terms of the
cardmember agreement and plaintiff accelerated
11 the account balance so that the entire unpaid
balance on the account became immediately due
12
and payable.‘
13
RC.
730
Paragraph #15 of Plaintiff’s declaration; Exhibits
Sums 14 ((A”, C‘B” and ((C3).
1
94520
925689-7070
ASSOCIATES,
ROAD,
925.689.7077
15
CA
. The last payment applied to the account or
PASS 16
&: CONCORD,
transaction made by defendant was on or about
'
01/09/17.
FACSIMILE:
TELEPHONE:
WILLOW
17
ZWICKER
1320
18 Paragraph #13 of Plaintiff’s declaration; Exhibit
‘6D’7-
19
20
. Defendant owes to plaintiff $5,836.50 principal,
21 plus court costs.
22 Paragraph #15 of Plaintiffs declaration; Exhibits
“B9, and “C”I
23
24
. Defendant’s affirmative defenses, if any, fail to
25 raise any triable issues of fact material to this
action and therefore do not preclude granting of
26
summary judgment.
27
CCP 4370 (o) and FPI Development, Inc., v.
28
9
PLAINTIFF’ S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY ADJUDICATION 1
Nakashima (19913 231 Cal.App. 3d 367, 282
‘
Cal.Rptr. 508.
[\J
It is not plaintiffs initial burden in moving for
summary . judgment
to disprove affirmative
defenses asserted by defendant.
Weil & Brown, California Practice Guide: Civil
Procedure Before Trial (TRG 2015) §10:235, p.
'
\oooq‘cxunpw
10—97. _
ISSUE #2- Plaintiff Has Established a Cause of Act_ion for an Account Stated
MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S
1o FACTS AND SUPPORTING EVIDENCE .-
,
RESPONSES
11
10. Defendant applied toplaintiff for a credit card
12
account and entered into a written credit card
account agreement with plaintiff for the account
13 number ending in 1000 (the “Account”) on
_
730 '
RC. 12/17/14.
Sum: 14
94520
925.689-.7070
925.689.7077
15
Paragraphs #7, 9 of Plaintiff s declaration; Exhibit
ASSOCIATES,
ROAD,
CA
“A”. _
PAss 16
8: CONCORD,
FACSIMILE:
TELEPHONE:
WILLOW
17 11. The defendant agreed to be bound by the terms
and conditions set forth in the Cardmember
ZWICKER
18
1320
Agreement when the defendant ’applied for,
19 received or used the credit card account. In
addition, the Cardmember Agreement provides that
20 use of the card constitutes acceptance of the
agreement.
21
22 Paragraphs #4, 7 of Plaintiffs declaration; Exhibits
6‘A97, “B” and “C”I
23
24 12.After receiving the credit card, purchases were
made by the use of the account and the charging of
25
various goods, services and cash advances.
26 Plaintiff complied with‘its obligations under the
Agreement by paying vendors for all charges that
27 were made on Defendant’s account. The principal
28
10
PLAINTIFF’S‘ STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY ADJUDICATION
balance of $5,830.50 prayed for in the complaint
results from the defendant’s use of said account.
Paragraphs #11, 15 of Plaintiff s declaration;
Exhibits “A”, “B”, “C” and “D39.
13. Payments and charges are duly reflected on the
computerized credit card record regularly kept and
\OOO\IO\UIJ>-
maintained by plaintiff in connection with
defendant’s credit card accounts. Those records
were provided on a monthly basis in the form of
billing statements to defendant reflecting all debits
and credits to defendant’s credit account.
10 Paragraphs #8, 11, 12, 13 of Plaintiffs declaration;
Exhibits “B”, “C” and “D”.
11
12
14. There is no record of
the defendant asserting a
13
valid and unresolved objection to the balance
RC.
730
shown as due and owing on the monthly statements
Sums 14 provided to the defendant.
94520
925689-7070
ASSOCIATES,
ROAD,
925.689.7077
15 Paragraph #14 of Plaintiff s declaration.
CA
PASS 16
& CONCORD,
Before 05/19/17, the defendant defaulted in
FACSIMILE:
15.
TELEPHONE:
WILLOW
17
ZWICKER
making the payments due under the terms of the
1320
18 cardmember agreement and plaintiff accelerated
the account balance so that the entire unpaid
19
balance on the account became immediately due
20 and payable.
21 Paragraph #15 of Plaintiffs declaration; Exhibits
“A”, (‘B” and C‘C,’.
22
23
16. The last payment applied to the account or
24 transaction made by defendant was on or about
01/09/17.
25
26
Paragraph #13 of Plaintiffs declaration; Exhibit
“D,,'
27
28
l 1
PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
'
ALTERNATIVE SUMMARY ADJUDICATION
17. Defendant owes to plaintiff $5,836.50 principal,
plus court costs.
[\J
Paragraph #15 of Plaintiff’s declaration; Exhibits
and “C”.
4
(CB7,
18. Defendant’s affirmative defenses, if any, fail to
\OOO\IO\UI-I>UJ
raise any triable issues of fact material to this
action and therefore do not preclude granting of
summary judgment.
CCP 437C (0). and FPI Development, Inc., v.-
Nakashima (1991) 231 Ca1.App. 3d 367, 282‘
Ca1.Rptr. 508.
1o
It is not plaintiff’s initial burden in moving for
11 summary judgment to disprove affirmative
defenses asserted by defendant.
12
13 Weil & Brown, California Practice Guide: Civil
RC.
730
Procedure Before Trial (TRG 2015) §10:235, p,
Sums 14 10-97.
94520
925.689.7070
15
925.689.7077
ROAD,
ASSOCIATES,
Q! 5’13
Q
CA
PASS 16
Dated: ZWICKER & ASSOCIATES, PC.
8: CONCORD,
A Law Firm Engaged in Debt Collection
FACSIMILE:
TELEPHONE:
17
%
WILLOW
ZWICKER
18
By:
1320
JANET L. BROWN / JESSICA-MW
Attorneys for Plaintiff
19
20
21
22
23
24
25
26
27
28
'
12
PLAINTIFF ’8 STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO
SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE
ALTERNATIVE SUMMARY ADJ UDICATION
Preview
I, i4. b—‘ - JANET L. BROWNIState Bar No. 208602) I JESSICA M. GARCIA 314298 \9\\€I 4. ZWICKER & ASSOCIATES RC. 1320 WILLOW PASS ROAD, SUITE 730 F E 1.4 E m CONCORD, CA 94520 SAN MATEO COUNTY 'Telephone: (925)689-7070 Facsimile: (925)689-7077 SEP 17 2018 \o~oo\10\m.l>mt\3 Attorneys for Plaintiff , A M By for Clerk DEPUTY CLERK Court SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO REDWOOD CITY JUDICIAL DISTRICT — LIMITED CIVIL CASE AMERICAN EXPRESS NATIONAL ) No. 17CLJ05544 BANK, ) _ _ ) PLAINTIFF’S STATEMENT OF Plamtlffa ) UNDISPUTED MATERIAL FACTS RC. 730 VS ' AND REFERENCE TO SUITE 94520 p—Ap—Av—Ar—Ir—ly—tHr—I I I SUPPORTING EVIDENCE IN ) ASSOCIATES, ROAD, 956897070 925.689.7077 \lONkII-hUJNHO ) SUPPORT OF MOTION FOR CALIFORNIA ROSANNA PITTELLA , et a1., ) SUMMARY JUDGMENT OR IN THE PAss ) ALTERNATIVE SUMMARY 8: Defendant ) ADJUDICATION II FACSIMILE: TELEPHONE: WILLOW CONCORD, (CCP § 437c) I I ZWICKER 1320 Date: December 18, 2018 __ Time: 9:00 am. - Dept: LM _ Separate Statement of Undisputed Material Fac 138252 24 ‘ Date Action Filed: 12/5/17 Trial Date: N/A III III IIIIIIIII ”III" I”, IIIIIIIII -__,__ *_ __/ , ,. Plaintiff AMERICAN EXPRESS NATIONAL BANK submits the folIOwing separate 2.2 23 statement of undisputed material facts and reference to supporting evidence puIsuant to C. C. P § 24 4370 (b)(1). These include every essential element to entitle plaintiff to a judgment as matter of. a 25 law as to defendant’s account number ending 1n 1000: 26 27 28 ‘ . 7 . PLAINTIFF’ S'STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION I ..'.'-,‘ 1," .- ~-: - -’ 3 _ ‘ 4;: u.1..2-. --.'-_:: ,’ .. 3-; 1;; " '2 2' ‘1'": °77::'is;:..; ‘ Q2. $5.552: k 5 . , . ~ . $5 0 3° (3 ' 523%? "w 59‘ 6"" . S %a 5%” 5 :3 W. . G , O . £5 . [\J MOVING PARTY’S UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE 1. Defendant» applied to plaintiff for a credit card account and entered into a written credit card W ISSUE #1- Plaintiff Has EstabLIished a Cause of Action for Open Book Account RESPONSES account agreement with plaintiff for the account \OOO\IO\UI-I>UJ number ending in 1000 (the “Account”) on 12/17/14. Paragraphs #7, 9 of Plaintiff’s declaration; Exhibit “A”I 10 . The defendant agreed to be bound by the terms and conditions set forth in the Cardmember Agreement 11 when the defendant applied for, received or used 12 the credit card account. In addition, the Cardmember Agreement provides that use of the 13 card constitutes acceptance of the agreement. 730 RC. SUITE 14 Paragraphs #4, 7 of Plaintiff s declaration; Exhibits 94520 925.689-.7070 ‘(A’9’ ‘6B” and 66C”. 15 925.689.7077 ROAD, ASSOCIATES, CA PASS 16 & CONCORD, TELEPHONE: FACSIMILE: . After receiving the credit card, purchases were ZWICKER WILLOW 17 made by the use of the account and the charging of various goods, services and cash advances. 18 1320 Plaintiff complied with its obligations under the 19 Agreement by paying vendors for all charges that were made on Defendant’s account. The principal 20' balance of $5,836.50 prayed for in the complaint results from the defendant’s use of said account. 21 22 Paragraphs #11, 15 of Plaintiff s declaration; Exhibits (‘A’,, (CB3), (CC), and “D”I 23 24 . Payments and charges are duly reflected on the computerized credit card record regularly kept and 25 maintained by plaintiff in connection with 26 defendant’s credit card accounts. Those records were provided on a monthly basis in the form of 27 billing statements to defendant reflecting all debits 28 _ 8 PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION and credits to defendant’s credit account. [9 Paragraphs #8, 11, 12, 13 of Plaintiffs declaration; Exhibits “B”, “C” and “D”. . There is no record of the defendant asserting a valid and unresolved objection to the balance shown as due and owing on the monthly statements \OOOQQUILUJ provided to the defendant. . Paragraph #14 of Plaintiffs declaration. 6. Before 05/19/17, the defendant defaulted in making 1o the payments due under the terms of the cardmember agreement and plaintiff accelerated 11 the account balance so that the entire unpaid balance on the account became immediately due 12 and payable.‘ 13 RC. 730 Paragraph #15 of Plaintiff’s declaration; Exhibits Sums 14 ((A”, C‘B” and ((C3). 1 94520 925689-7070 ASSOCIATES, ROAD, 925.689.7077 15 CA . The last payment applied to the account or PASS 16 &: CONCORD, transaction made by defendant was on or about ' 01/09/17. FACSIMILE: TELEPHONE: WILLOW 17 ZWICKER 1320 18 Paragraph #13 of Plaintiff’s declaration; Exhibit ‘6D’7- 19 20 . Defendant owes to plaintiff $5,836.50 principal, 21 plus court costs. 22 Paragraph #15 of Plaintiffs declaration; Exhibits “B9, and “C”I 23 24 . Defendant’s affirmative defenses, if any, fail to 25 raise any triable issues of fact material to this action and therefore do not preclude granting of 26 summary judgment. 27 CCP 4370 (o) and FPI Development, Inc., v. 28 9 PLAINTIFF’ S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION 1 Nakashima (19913 231 Cal.App. 3d 367, 282 ‘ Cal.Rptr. 508. [\J It is not plaintiffs initial burden in moving for summary . judgment to disprove affirmative defenses asserted by defendant. Weil & Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2015) §10:235, p. ' \oooq‘cxunpw 10—97. _ ISSUE #2- Plaintiff Has Established a Cause of Act_ion for an Account Stated MOVING PARTY’S UNDISPUTED MATERIAL OPPOSING PARTY’S 1o FACTS AND SUPPORTING EVIDENCE .- , RESPONSES 11 10. Defendant applied toplaintiff for a credit card 12 account and entered into a written credit card account agreement with plaintiff for the account 13 number ending in 1000 (the “Account”) on _ 730 ' RC. 12/17/14. Sum: 14 94520 925.689-.7070 925.689.7077 15 Paragraphs #7, 9 of Plaintiff s declaration; Exhibit ASSOCIATES, ROAD, CA “A”. _ PAss 16 8: CONCORD, FACSIMILE: TELEPHONE: WILLOW 17 11. The defendant agreed to be bound by the terms and conditions set forth in the Cardmember ZWICKER 18 1320 Agreement when the defendant ’applied for, 19 received or used the credit card account. In addition, the Cardmember Agreement provides that 20 use of the card constitutes acceptance of the agreement. 21 22 Paragraphs #4, 7 of Plaintiffs declaration; Exhibits 6‘A97, “B” and “C”I 23 24 12.After receiving the credit card, purchases were made by the use of the account and the charging of 25 various goods, services and cash advances. 26 Plaintiff complied with‘its obligations under the Agreement by paying vendors for all charges that 27 were made on Defendant’s account. The principal 28 10 PLAINTIFF’S‘ STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION balance of $5,830.50 prayed for in the complaint results from the defendant’s use of said account. Paragraphs #11, 15 of Plaintiff s declaration; Exhibits “A”, “B”, “C” and “D39. 13. Payments and charges are duly reflected on the computerized credit card record regularly kept and \OOO\IO\UIJ>- maintained by plaintiff in connection with defendant’s credit card accounts. Those records were provided on a monthly basis in the form of billing statements to defendant reflecting all debits and credits to defendant’s credit account. 10 Paragraphs #8, 11, 12, 13 of Plaintiffs declaration; Exhibits “B”, “C” and “D”. 11 12 14. There is no record of the defendant asserting a 13 valid and unresolved objection to the balance RC. 730 shown as due and owing on the monthly statements Sums 14 provided to the defendant. 94520 925689-7070 ASSOCIATES, ROAD, 925.689.7077 15 Paragraph #14 of Plaintiff s declaration. CA PASS 16 & CONCORD, Before 05/19/17, the defendant defaulted in FACSIMILE: 15. TELEPHONE: WILLOW 17 ZWICKER making the payments due under the terms of the 1320 18 cardmember agreement and plaintiff accelerated the account balance so that the entire unpaid 19 balance on the account became immediately due 20 and payable. 21 Paragraph #15 of Plaintiffs declaration; Exhibits “A”, (‘B” and C‘C,’. 22 23 16. The last payment applied to the account or 24 transaction made by defendant was on or about 01/09/17. 25 26 Paragraph #13 of Plaintiffs declaration; Exhibit “D,,' 27 28 l 1 PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ' ALTERNATIVE SUMMARY ADJUDICATION 17. Defendant owes to plaintiff $5,836.50 principal, plus court costs. [\J Paragraph #15 of Plaintiff’s declaration; Exhibits and “C”. 4 (CB7, 18. Defendant’s affirmative defenses, if any, fail to \OOO\IO\UI-I>UJ raise any triable issues of fact material to this action and therefore do not preclude granting of summary judgment. CCP 437C (0). and FPI Development, Inc., v.- Nakashima (1991) 231 Ca1.App. 3d 367, 282‘ Ca1.Rptr. 508. 1o It is not plaintiff’s initial burden in moving for 11 summary judgment to disprove affirmative defenses asserted by defendant. 12 13 Weil & Brown, California Practice Guide: Civil RC. 730 Procedure Before Trial (TRG 2015) §10:235, p, Sums 14 10-97. 94520 925.689.7070 15 925.689.7077 ROAD, ASSOCIATES, Q! 5’13 Q CA PASS 16 Dated: ZWICKER & ASSOCIATES, PC. 8: CONCORD, A Law Firm Engaged in Debt Collection FACSIMILE: TELEPHONE: 17 % WILLOW ZWICKER 18 By: 1320 JANET L. BROWN / JESSICA-MW Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 ' 12 PLAINTIFF ’8 STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJ UDICATION