Summary Adjudication
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March 27, 2026 Dept. 9 Tentative Rulings
7. 25CV0514 WELLS FARGO BANK, N.A. vs. BAILEY Summary Adjudication
Plaintiff filed this motion for summary adjudication on a Complaint for credit card collection that includes causes of action for Breach of Contract1, Account Stated2 and Money Lent.3 The motion is made under the authority of Code of Civil Procedure § 437c, which provides that:
A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.
1 The elements of a breach of oral contract cause are: “(1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239, 70 Cal.Rptr.3d 667 [elements of breach of contract] . . . .
Aton Ctr., Inc. v. United Healthcare Ins. Co., 93 Cal. App. 5th 1214, 1230 (2023).
2 An account stated is “an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing.” (Lauron, supra, 8 Cal.App.5th at p. 968, 214 Cal.Rptr.3d 419.) “When an account stated is ‘ “assented to, either expressly or impliedly, it becomes a new contract.” ’... Accordingly, an action on an account stated is not based on the parties' original transactions, but on the new contract under which the parties have agreed to the balance due.” (Ibid.)
Pro. Collection Consultants v. Lujan, 23 Cal. App. 5th 685, 691 (2018), citing Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 214 Cal.Rptr.3d 419 (2017). 3 A claim for “money lent” is one of the common counts. (
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Superior Court (1934) 1 Cal.2d 512, 518–519, 36 P.2d 635 (Philpott); see 4 Witkin, Cal. Procedure (5th ed. 2020) Pleading, § 553.) A common count claim broadly applies “wherever one person has received money which belongs to another, and which in ‘equity and good conscience,’ or in other words, in justice and right, should be returned.” (Philpott, supra, 1 Cal.2d at p. 522, 36 P.2d 635, quoting 3 Page on Contracts, § 1473, pp. 2510–2512.) The claim does not require privity of contract. Although the plaintiff's right to recover under a common count is based on equitable principles, the claim is legal in nature. (Philpott, at p. 522, 36 P.2d 635, citing Page on Contracts, at pp. 2510–2512.)
March 27, 2026 Dept. 9 Tentative Rulings
Summary Judgment Standard [S]ummary judgment or summary adjudication is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894–895, 83 Cal.Rptr.3d 146.) The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861–862, 107 Cal.Rptr.2d 841, 24 P.3d 493.) “A defendant seeking summary judgment bears the initial burden of proving the cause of action has no merit by showing that one or more of its elements cannot be established or there is a complete defense to it.... [Citations.]” (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037, 128 Cal.Rptr.2d 660.) Alvarez v. Seaside Transportation Servs. LLC, 13 Cal. App. 5th 635, 641–42 (2017).
In this case, there is no evidence of a renewed agreement between the parties that would indicate that the elements of “Account Stated” cause of action have been met, notwithstanding a new contract alleged in the Complaint, paragraph 17. However, the evidence submitted by Plaintiff does adequately support the common count of “Money Lent” in that Defendant applied or a line of credit in which he promised to repay moneys advanced to him, received money pursuant to the line of credit, and failed to make payments on that loan after July 25, 2025.
The evidence submitted by Plaintiff also sufficiently supports the claim from Breach of Contract. Plaintiff has met the initial burden of production, establishing that Defendant applied for a line of credit promised to pay amounts that were advanced to him, that Plaintiff advanced Defendant money pursuant to that agreement, and Defendant failed to the pay amounts due as of the last payment received on July 25, 2024. Declaration of Anita Flannery-Brice, dated October 21, 2025 (“Flannery-Bryce Declaration”).
Defendant contests some of the factual assertions of Plaintiff. To the extent Defendant’s arguments are comprehensible, it appears that his argument rests in part on disputing the $52,534.78 amount claimed as owing in 2024 by referencing prior account statements showing different amounts due in 2022 and 2023. The Declaration submitted by Defendant attaches summaries of the account history and some discovery responses that do not contradict Plaintiff’s evidence, and he makes no affirmative representation that would negate Plaintiff’s breach of contract cause of action. Defendant claims that he never provided with statements of
March 27, 2026 Dept. 9 Tentative Rulings
loaned amounts or payments made, a statement that is contradicted by Plaintiff’s custodian of records. Flannery-Bryce Declaration, para. 11; Exhibit 3.
In short, Plaintiff has met its burden of production on the Breach of Contract and Money Lent causes of action, and Defendant has produced no evidence of a triable issue of material fact.
Attorneys’ Fees and Costs
The Small Business Lending Credit Application Agreement and Person Guarantee document that is attached to the Flannery-Brice Declaration states as follows: “I agree (i) I will pay Bank’s costs and attorneys’ fees in enforcing this guaranty . . .” and bears Defendant’s signature. Code of Civil Procedure § 1021 provides that attorneys’ fees, where not specifically provided for by statute is a matter that is governed by the agreement of the parties. Accordingly, Plaintiff is entitled to recover attorneys’ fees in accordance with the terms of the parties’ agreement. Plaintiff claims an amount calculated on the basis of the amount due pursuant to Local Rule 7.10.07(B), totaling $4,350.70. Plaintiff further requests costs in the amount of $673.30.
TENTATIVE RULING #7: PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION OF BREACH OF CONTRACT AND MONEY LENT CAUSES OF ACTION IS GRANTED; PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION OF THE ACCOUNT STATED CAUSE OF ACTION IS DENIED. PLAINTIFF IS AWARDED ATTORNEYS’ FEES IN THE AMOUNT OF $4,350.70. PLANITIFF IS AWARDED COSTS, SUBJECT TO FILING A MEMORANDUM OF COSTS TO DOCUMENT CLAIMED EXPENSES.
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999).
NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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