Swearinger v. Humenik CA2/7

Filed 4/19/16 Swearinger v. Humenik CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

WILLIAM SWEARINGER, as B258174 Administrator, etc., (Los Angeles County Plaintiff and Appellant, Super. Ct. No. EC056445) v. EDWARD HUMENIK, as Trustee, etc., Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Donna F. Goldstein, Judge. Affirmed. Law Offices of Michael D. Grahn and Michael D. Crahn, for Plaintiff and Appellant. Law Office of Michael J. Coppess and Michael J. Coppess, for Defendant and Respondent.

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Plaintiff William Swearinger appeals from the judgment entered in favor of defendant Edward Paul Humenik following a court trial on a cause of action for account stated. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND William Swearinger is the son of Patricia Swearinger. Edward Humenik is the son of Paul Humenik. Paul began dating Patricia in 1997 or 1998 and moved into her home in 2004 or 2005. 1 Over a 12 year period, Paul wrote 113 personal checks to Patricia, which she never cashed. The checks totaled $41,178.15 and were written in amounts ranging from $40.00 to $1,200.00. Paul died on March 8, 2011.

1. The Pleadings On July 21, 2011, Patricia, represented by her son, William, filed a verified complaint for money. Patricia died on January 27, 2012. On June 18, 2012, William filed a first amended complaint, as Administrator of the Estate of Patricia Swearinger, against Edward, as successor of the Paul Humenik Trust.2 The complaint asserted a cause of action for account stated, alleging that Paul had become indebted to Patricia prior to his death. The complaint sought a balance due of $41,178.15 plus interest and attorney’s fees.

2. The Trial The action was tried to the court. William testified that his mother Patricia gave him 113 checks after Paul died. The checks were made payable to Patricia, were drawn on Paul’s bank account and bore Paul’s signature. The earliest check was dated

1 Because some of the parties “share the same last name, we refer to them by their first names for convenience and clarity” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1191, fn. 1) and “not out of disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)