WELLS FARGO BANK, N.A. vs CHAND

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

Tentative Ruling

PLEASE TAKE NOTICE that pursuant to “Public Notice – Civil Division – Wednesday Law and Motion Calendar” any oral arguments regarding this tentative ruling will be heard in Department 25, located at 720 9th Street, Sacramento, CA, the Hon. Julie G. Yap presiding. Should argument be requested by either party, the requesting party must call the Law and Motion Oral Argument Request Line at (916) 874-2615, by 4:00 p.m. the Court day before the hearing, request the hearing, and notify the opposing party of the location and time of hearing pursuant to Local Rule 1.06.

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24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

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TENTATIVE RULING: In this consumer credit card collection action, Plaintiff Wells Fargo Bank N.A. (“Plaintiff”) asserts the following causes of action against Defendant Deo Chand (“Defendant”): (1) breach of written contract, (2) breach of contract (implied in fact), (3) money lent, (4) money paid, (5) open book account, and (6) account stated.

Moving counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including declarations) with a table of contents when the evidence exceeds 25 pages.

Moving counsel failed to comply with CRC Rule 3.1350(d)(3) and (f)(2)-(3), respectively, requiring citations to supporting and opposing evidence include reference to the exhibit, title, page, and line numbers.

On July 26, 2024, Defendant filed an Answer in which Defendant generally denies the allegations in the Complaint and asserts various affirmative defenses.

Plaintiff now moves for summary judgment. Defendant opposes.

Plaintiff’s Motion for Summary Judgment is DENIED as follows.

Factual Background

This litigation arises out of a line of credit opened by Defendant. Plaintiff alleges that Defendant was issued a Wells Fargo Credit Card on November 19, 2017. Defendant used the credit card, but has subsequently failed to make payments on the account (ending in x1118) since March 24, 2023. It is claimed that the balance due and owing on the account is $14,299.12.

On March 22, 2024, Defendant interposed an answer in which Defendant generally denies the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

allegations in the Complaint and asserts various affirmative defenses.

Plaintiff now moves for summary judgment on the ground that there is no triable issue of material fact, or issue of liability, and therefore the moving party is entitled to summary judgment. Defendant opposes this motion and objects to Plaintiff’s supporting evidence.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v.

Regents of University of California (2007) 151 Cal. App. 4th 168, 176- 177.)

Next, the Court must determine whether the moving party has met its burden. A plaintiff moving for summary judgment meets its burden of showing that there is no defense to its cause of action by proving each element of its cause of action. (Code Civ. Proc. § 437c, subd. (p)(1).) It is no longer required also to disprove any defense asserted by the defendant. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 10:235, p. 10-89 (rev. # 1, 2006) [when plaintiff moves for summary judgment '[u]nlike former law, it is not plaintiff's initial burden to disprove affirmative defenses and cross-complaints asserted by defendant'].)

If the plaintiff does so, the burden shifts to the defendant to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the defendant cannot rely on the mere allegations or denial of its pleadings, 'but, instead, shall set forth the specific facts showing that a triable issue of material fact exists.' (Code Civ. Proc. § 437c, subd. (p)(1).) A triable issue of material fact exists 'if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [fn. omitted.]' (Aguilar v.

Atlantic Richfield Co., supra, 25 Cal. 4th at 850.)

Finally, the Court reminds the parties of the 'Golden Rule' of summary judgment or adjudication: 'If it is not set forth in the separate statement, it does not exist.' (See Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 [italics in original].) Moreover, according to Nazir v.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party's inclusion of facts in its separate statement effectively concedes each fact's 'materiality,' whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Discussion

At the outset, the Court notes that Plaintiff's six (6) causes of action are in actually two (2) causes of action – for breach of contract and common counts. The first two causes of action are separate theories for breach of contract, and the remaining four (4) are separate theories for common counts. Plaintiff's Separate Statement of Undisputed Facts identifies five 'issues,' one issue for the cause of action for breach of contract, and four issues for each of the theories for common counts. Indeed, Plaintiff's 'causes of action' for 'money lent,' 'money paid,' 'open book account' and 'account stated' are separate theories of a single cause of action for common counts.

The Court construes the Separate Statement as identifying its two causes of action for summary judgment, the breach of contract claim and the common counts claim, with Issues 2-5 as alternative theories for the cause of action for common counts.

In order to prevail on this motion, Plaintiff must demonstrate it is entitled to summary judgment as to the entire complaint.

Plaintiff asserts the following UMFs for its cause of action for breach of contract. Defendant applied for and was issued a Wells Fargo credit card ending in 1118. (UMF 1.) Plaintiff sent Defendant a credit card along with the written Customer Agreement associated with the Card. (UMF 2.) Defendant accepted the written agreement when they used the Wells Fargo Visa Credit Card. (UMF 3.) Pursuant to the terms of the Customer Agreement, Plaintiff would extend credit to Defendant whereby Defendant could charge goods, services, or obtain cash advances on the credit line. (UMF 4.)

In exchange, Defendant was to repay the principal amount lent plus applicable interest and finance charges. (UMF 5.) In accordance with the Customer Agreement, Defendant used the account, and made payments, charges, and incurred a balance thereon. (UMF 6.) Plaintiff sent Defendant monthly statements of the Subject Account each and every billing period. (UMF 7.) The statements of the account reflected all charges, payments, minimum payment due that billing period, and any fees and interest incurred for each billing period. (UMF 8.)

There is no record of any unresolved disputes on the account. (UMF 9.) There is no record of any active lawsuits against Plaintiff for unresolved disputes on the credit card account. (UMF 10.) Defendant's last payment on the account was on March 24, 2023. (UMF 11.) Thereafter, no further payments were made by Defendant, and pursuant to the terms of the Customer Agreement, Defendant was in default. (UMF 12.) The balance due on Defendant's account is $14,299.12. (UMF 13.) As a result, Plaintiff has been damaged in the sum of $14,299.12. (UMF

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

14.)

The Court's review of Plaintiff's moving papers demonstrates that Plaintiff has failed to meet its initial burden on multiple and independent grounds.

As a preliminary matter, Plaintiff failed to comply with California Rules of Court, rule 3.1350, subdivisions (d)(3) and (g), which requires that all evidence cited in support of each UMF must “include reference to the exhibit, title, page, and line numbers,” and that evidence exceeding 25 pages shall be separately bound and include a table of contents. Plaintiff's citations refer to entire exhibits. There are approximately 324 pages of exhibits included in support of the instant motion.

As an example, UMF 1 in support of Plaintiff's cause of action for breach of contract asserts that Defendant applied for and was issued Wells Fargo credit card ending in 3822. The UMF cites, inter alia, paragraph 9 of Plaintiff's Qualified Witness Declaration ('Shogren Declaration') and the Declaration of Ashley Mulhorn (“Mulhorn Decl.”), and all respective accompanying exhibits. Exhibits 1 and 2 to the Shogren Declaration consists of approximately 303 pages of documents, of which Plaintiff fails to cite to any page or line numbers; the Mulhorn Declaration consists of approximately 23 pages of exhibits, of which Plaintiff similarly fails to cite to any page or line numbers.

Counsel is reminded that separate statements “are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are disputed.” (United Community Church v. Garcin (1991) 231 Cal. App. 3d 327, 335.) “The due process aspect of the separate statement requirement is self-evident -- to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at 337.)

In addition, “[a] properly prepared separate statement can materially ease the trial court's burden. [It] should list in numbered paragraphs without argumentation each material fact necessary to entitle the moving party to summary judgment.” (Blackman v. Burrows (1987) 193 Cal.App.3d 889, 895-896.) Rather than cite to the page or line numbers of the evidence which purportedly supports UMF 1, Plaintiff cites to the entire exhibits generally. Every single UMF set forth by Defendant contains this deficiency by referencing the exhibits generally.

The Court is neither required to, nor will it scour through, each exhibit to identify what portion of each exhibit purports to support each of Defendant's 44 UMFs. More importantly, Plaintiff's failure to identify the specific location of the evidence which purportedly supports each of its UMFs deprives Defendant of his due process rights. Plaintiff was required to properly identify the evidence it seeks to use in seeking summary judgment so that Defendant may respond. Plaintiff's failure to do so deprives Defendant of due process because Defendant cannot raise issues of material fact, object to the evidence, or present argument against the evidence unless Defendant can readily identify the evidence used in support of the asserted UMF. This is particularly the case when there are around 324 pages of exhibits. Summary Judgment is denied

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

on this basis alone.

Notwithstanding this deficiency, Defendant’s moving papers demonstrates that Defendant failed to meet its initial burden on multiple and independent grounds.

Defendant offered, inter alia, UMF 1 in support of the breach of contract claim. As noted above, UMF 1 states: “Defendant applied for and was issued a Wells Fargo credit card ending in 1118.”

Plaintiff cites to the Shogren Declaration in support of UMF 1, as well as Defendant’s response to Plaintiff’s Request for Admission (“RFA”) No. 1. (UMF 1; see also Mulhorn Decl. Exh. 2 at p. 4.) However, Defendant’s response to RFA No. 1 admits only that the credit card was issued to Defendant. (Mulhorn Decl. Exh. 2 at p. 4.) The response does not state that Defendant applied for and was issued the credit card. Because these are two distinct factual events, the evidence cited does not clearly establish UMF 1, and actually creates a potential and material factual issue as to whether Defendant applied for and was issued the credit card.

As noted in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, a party moving for summary judgment concedes the materiality of each fact enumerated in its separate statement and, as a consequence, cannot argue that the motion should be granted because one or more of these facts are not truly material.

Defendant offers UMF 20 in support of the common counts cause of action. UMF 20 states: “Furthermore, there is no record of any unresolved disputes on the account.” Defendant cites only to “Exhibit ‘2’ to the Qualified Witness Decl.” in support of UMF 20. As previously mentioned, Defendant’s supporting exhibits are substantial in size and were not separately bound. UMF 20 does not cite to specific pages or lines in Exhibit 2’s approximately 285 pages of evidentiary support. UMF 20 lacks sufficient evidentiary support on this basis alone.

Even assuming Exhibit 2 was properly before this Court, the Shogren Declaration describes Exhibit 2 as Defendant’s “billing statements.” (Shogren Declaration, paragraph 15.) While the Shogren Declaration details the process for disputing a monthly statement, it does not establish where Plaintiff generally maintains a customer’s “record of any unresolved disputes on the account,” whether records of disputes are found in a customer’s monthly billing statements, or how long these records are stored. Thus, Plaintiff has not met their burden of proof in providing evidentiary support for UMF 20.

Plaintiff's failure to support each one of its UMFs is a separate basis for denying its motion for summary judgment. A single unsupported asserted UMF is sufficient to require denial of the motion. Here, there are more than one unsupported asserted UMFs. As Plaintiff has conceded that each one of its UMFs is material to the instant motion (Nazir, supra, 178 Cal.App.4th at 252; Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 522), its motion for summary judgment must be denied in full.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011961: WELLS FARGO BANK, N.A. vs CHAND 03/26/2025 Hearing on Motion for Summary Judgment in Department 53

In sum, Plaintiff has failed to meet its initial burden on summary judgment. It failed to comply with California Rules of Court, rule 3.1350, subdivision (d), which deprived Defendant of his due process rights. It also provided purportedly undisputed material facts for each claim which were unsupported by the evidence cited.

Plaintiff has not met its initial burden, the burden of production did not shift to Defendant, and summary judgment must be denied. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 849.) With regards to Defendant’s objections to evidence, this Court does not rule on the objections as they are not material to the disposition of this motion. (Code Civ. Proc., § 437c(q).)

The motion for summary judgment is DENIED in its entirety. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.