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American Express Travel v. Carmichael CA4/1 (2013) · DecisionDepot
/ California Court of Appeal American Express Travel v. Carmichael CA4/1 Unpublished Filed 12/24/13 American Express Travel v. Carmichael CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA AMERICAN EXPRESS TRAVEL D062865 RELATED SERVICES COMPANY, INC., Plaintiff, Cross-defendant and Respondent, (Super. Ct. No. 37-2010-00099698- CU-CL-CTL) v.
KIRK CARMICHAEL, Defendant, Cross-complainant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Kirk Carmichael, in pro. per.; and MacDuff W. Collins for Defendant, Cross-
complainant and Appellant.
The Moore Law Group, Harvey M. Moore and Ray Mahdavi for Plaintiff, Cross-
defendant and Respondent.
Kirk Carmichael appeals after the trial court granted summary adjudication in
favor of American Express Travel Related Services Company, Inc. (American Express)
on its claim against Carmichael for account stated. He also appeals the denial of his
request to reconsider an order sustaining American Express's demurrer to his cross-
complaint. He contends: (1) the trial court did not have subject matter jurisdiction;
(2) the trial court erred in granting summary adjudication because (a) he asked for a jury
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
trial, (b) American Express's separate statement was defective, and (c) New York law
exempted him from liability; and (3) the trial court abused its discretion in denying his
motion to reconsider and not providing him an opportunity to amend his cross-complaint.
We reject Carmichael's arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND Carmichael and Mark Goodacre were the sole partners in American Freightways,
L.P. (Freightways), a transportation company. In July 2006, Carmichael applied for a
credit card with American Express in the name of Freightways. Carmichael identified
himself as the contact person for the account.
American Express issued Carmichael a corporate credit card for Freightways.
Carmichael was the only person who used the card and no one else at Freightways had a
card on the account. Carmichael considered the card to be his own and used it for
personal purposes. The invoices for the account showed Carmichael as the cardholder.
American Express sued Freightways to collect a delinquent balance on the account
in an amount of approximately $276,000. Freightways moved for summary judgment,
contending the credit card charges subject to the action were not authorized by the
business and not related to the business. The trial court granted the motion and entered
judgment in favor of Freightways. However, the trial court stated that the action would
continue against Carmichael who had not yet been named as a defendant. Accordingly,
American Express amended its complaint to name Carmichael as the defendant.
Carmichael cross-complained against American Express and its attorneys, Jaffe
and Asher, LLP (J&A) and The Moore Law Group (Moore), for fraud upon the court and
violations of the Fair Debt Collection Practices Act (FDCPA). The fraud claim alleged
that American Express and its counsel attached an improper card member agreement to
its complaint against Carmichael. American Express later filed a notice of errata stating
that due to inadvertence and error of counsel, an incorrect exhibit was included with its
complaint and it attached the correct card member agreement. Carmichael's FDCPA
claim alleged American Express, J&A, and Moore failed to respond to his "debt
American Express, J&A, and Moore demurred to Carmichael's cross-complaint.
The trial court sustained the demurrer, finding Carmichael failed to allege the elements of
a fraud claim, cited no authority to support that claim, and his claim was barred by the
litigation privilege (Civ. Code, § 47, subd. (b)). The trial court also found Carmichael
failed to articulate any violation of the FDCPA and demonstrate American Express was a
debt collector under the FDCPA.
American Express moved for summary adjudication as to each cause of action in
its complaint against Carmichael. Carmichael opposed the motion, contending American
Express's separate statement was procedurally defective because it did not individually
identify each cause of action and there were triable issues of fact on each cause of action.
The trial court rejected Carmichael's argument concerning the separate statement, granted
summary adjudication on American Express's claim for account stated, and denied
summary adjudication on American Express's causes of action for breach of contract,
open book account, and unjust enrichment.
Carmichael requested that the court reconsider its ruling sustaining the demurrer to
his cross-complaint without leave to amend. The trial court denied Carmichael's request,
stating he "did not provide the Court with 'new or different fact, circumstances, or law.' "
The court entered judgment in favor of American Express in the amount of $330,234.99.
DISCUSSION
I. Subject Matter Jurisdiction Carmichael contends the trial court lacked subject matter jurisdiction because the
card member agreement provided that it "shall be governed by and construed in
accordance with the laws of the State of New York" and "the sole venue for any litigation
arising out of th[e] Agreement shall be an appropriate federal or state court located in the
State of New York." We disagree.
" ' "Subject matter jurisdiction . . . is the power of the court over a cause of action
or to act in a particular way." [Citation.] By contrast, the lack of subject matter
jurisdiction means the entire absence of power to hear or determine a case; i.e., an
absence of authority over the subject matter.' [Citations.]" (Miller-Leigh LLC v. Henson
(2007) 152 Cal.App.4th 1143, 1148-1149.) "The issues relating to a forum selection
clause are distinct from the questions of subject matter jurisdiction. The existence of a
forum selection clause does not mean that another forum lacks subject matter
jurisdiction." (Id. at p. 1149.) Indeed, "parties may not deprive courts of their
jurisdiction over causes by private agreement." (Smith, Valentino & Smith, Inc. v.
Superior Court (1976) 17 Cal.3d 491, 495.)
Here, Carmichael confuses the issue of subject matter jurisdiction with forum
selection. While the parties' agreement may have demonstrated their intent, it did not
deprive the trial court of jurisdiction. (See Miller-Leigh LLC v. Henson, supra, 152
Cal.App.4th at pp. 1148-1149.) Rather, the trial court had " 'discretion to decline to
exercise jurisdiction in recognition of the parties' free and voluntary choice of a different
forum.' " (Id. at p. 1149.) Carmichael did not move to stay or dismiss the action on the
ground of inconvenient forum and thus waived the issue. (Cal-State Business Products &
Services, Inc. v. Ricoh (1993) 12 Cal.App.4th 1666, 1680 ["A defendant may enforce a
forum-selection clause by bringing a motion pursuant to [Code of Civil Procedure]
section 410.30 and 418.10, the statutes governing forum non conveniens motions,
because they are the ones which generally authorize a trial court to decline jurisdiction
when unreasonably invoked and provide a procedure for the motion."].)
II. Motion for Summary Adjudication Carmichael argues the trial court erred in granting summary adjudication because
under the California Constitution he had the right to a trial by jury. As explained in
Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 70, this contention has long
been rejected: "Older decisions frequently referred to summary judgment as a 'drastic
remedy' and emphasized the right to jury trial on constitutional grounds, noting that both
the federal and state Constitutions establish trial by jury as a basic right. [Citations.]
Nevertheless, California and federal courts long ago agreed that nothing in the summary
judgment procedure is inherently unconstitutional." (Id. at 70.) "If the facts are
undisputed . . . and admit of only one conclusion, then summary judgment may be
entered on issues that otherwise would have been submitted to the jury. That is the
function of summary judgment proceedings." (Davis v. Consolidated Freightways
(1994) 29 Cal.App.4th 354, 366.)
B. Deficiencies in Separate Statement
Carmichael asserted below, and reasserts on appeal, that American Express's
motion for summary adjudication should have been denied because its separate statement
of material facts was procedurally defective in that it did not individually identify each
cause of action. We reject this argument.
California Rules of Court, rule 3.1350(b) provides that "[i]f summary adjudication
is sought, whether separately or as an alternative to the motion for summary judgment,
the specific cause of action, affirmative defense, claims for damages, or issues of duty
must be stated specifically in the notice of motion and be repeated, verbatim, in the
separate statement of undisputed material facts."
Here, American Express did not strictly comply with the requirements of
California Rules of Court, rule 3.1350(b). However, its separate statement of undisputed
material facts did individually identify three of the four causes of action it sought to
summarily adjudicate. Moreover, even if some additional headings were required, the
court's power to deny summary adjudication on the basis of failure to comply with
California Rules of Court, rule 3.1350 is discretionary, not mandatory. (See Cadlo v.
Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 523; cf. San Diego Watercrafts, Inc. v.
Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315-316.)
The facts critical to the ruling were adequately identified, and Carmichael has not
explained how any alleged deficiency in American Express's separate statement of
undisputed material facts impaired his ability to marshall evidence to show that material
facts were in dispute. We conclude the trial court did not abuse its discretion by
declining to reject summary adjudication based on the deficiencies within the separate
C. Application of New York Law Carmichael contends the trial court erred in granting summary adjudication
because New York partnership law exempted him from liability. We reject this
Carmichael relies on a New York law which provides that "a limited partner is not
liable for the contractual obligations and other liabilities of a limited partnership unless
he is also a general partner or, in addition to the exercise of his rights and powers as a
limited partner, he participates in the control of the business. However, if the limited
partner does participate in the control of the business, he is liable only to persons who
transact business with the limited partnership reasonably believing, based upon the
limited partner's conduct, that the limited partner is a general partner." (N.Y. P'ship Law
Based on our review of the record, Carmichael waived his argument by failing to
raise it when he opposed American Express's motion for summary adjudication in the
trial court. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102,
113 [arguments not asserted below are waived and will not be considered for the first
time on appeal].) Further, even if the argument was not waived, the provision that
Carmichael cites in not applicable because it pertains to the "contractual obligations and
other liabilities of a limited partnership." Carmichael admitted that "[f]rom the opening
of the account, the card was used solely by [him] for [his] personal purposes and not for
any business purpose of . . . Freightways. [He] considered the card [his] own." Thus, the
obligations and liabilities of the credit card were Carmichael's and not Freightways's.
Carmichael has not cited to any evidence to suggest otherwise. Accordingly, his
III. Request for Reconsideration Carmichael argues the trial court abused its discretion in denying his motion to
reconsider the ruling on American Express's demurrer and not providing him an
opportunity to amend his cross-complaint. We disagree.
A party seeking reconsideration of a court's order under Code of Civil Procedure
section 1008 must not only show new or different facts, circumstances or law, but also
must give a satisfactory explanation for not producing such facts or information at the
original hearing. (The New York Times Co. v. Superior Ct. (2005) 135 Cal.App.4th 206,
212-213; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Where evidence
addressed in the motion for reconsideration is available to a party before the initial
motion is heard, such evidence is not considered "new" for purposes of a motion for
reconsideration. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017,
1028; Garcia v. Hejmadi, supra, 58 Cal.App.4th at pp. 689-690.)
We review the court's ruling on a motion for reconsideration under the abuse of
discretion standard. (The New York Times Co. v. Superior Ct., supra, 135 Cal.App.4th at
p. 212; Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) Thus, whether Carmichael
proffered new or different facts sufficient to satisfy the requirements of Code of Civil
Procedure section 1008, is a "question confided to the sound discretion of the trial court,
with the exercise of which [the appellate court] will not interfere absent an obvious
showing of abuse." (Graham v. Hansen (1982) 128 Cal.App.3d 965, 971.)
Here, Carmichael included three documents with his motion for reconsideration,
which he alleged constituted "new" evidence. The documents consisted of a letter from
J&A to Carmichael, an e-mail from J&A to Goodacre, and a letter from Carmichael to
J&A. These documents were dated May 2010, more than a year before Carmichael filed
his cross-complaint. Accordingly, the documents were available to Carmichael at the
time the trial court heard the demurrer to his cross-complaint and do not constitute new
evidence. Further, even if Carmichael had a reasonable explanation for not providing the
documents to the trial court earlier, which he did not, he fails to adequately explain how
the documents support his fraud or FDCPA claims.
Similarly, Carmichael argued Reese v. Ellis, Painter, Ratterree & Adams, LLP
(11th Cir. 2012) 678 F.3d 1211, constituted "new" law and justified his request for
reconsideration. He contends that case stands for the proposition that law firms are
considered "debt collector[s]" for purposes of the FDCPA. First, we note that we are not
bound by federal circuit opinions, even on questions of federal law. (See Metalclad
Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th
1705, 1714-1715.) Further, even if the case was "new" law, Carmichael has failed to
articulate any specific violations of the FDCPA and state how he could cure the defects in
Under these circumstances, we conclude the trial court acted well within its
discretion in denying Carmichael's request to reconsider the court's ruling sustaining the
demurrer to his cross-complaint.
DISPOSITION The judgment is affirmed. Respondent is entitled to costs on appeal.
MCINTYRE, J.
O'ROURKE, J. AI-generated · verify before citing Holding. The court affirmed the judgment against the defendant, holding that the trial court maintained subject matter jurisdiction despite a forum selection clause, properly granted summary adjudication on the account stated claim, and did not abuse its discretion in denying the motion for reconsideration.
Issues
Did the trial court lack subject matter jurisdiction due to a forum selection clause? Did the trial court err in granting summary adjudication on the account stated claim? Did the trial court abuse its discretion in denying the motion for reconsideration of the demurrer ruling? Disposition. Affirmed