Motion for Summary Judgment (Judge Pauline Maxwell)

Wells Fargo Bank NA vs Sara R Guzik

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiff Wells Fargo Bank, N.A., for summary judgment is granted against defendant Sara R. Guzik in the amount of $5,205.13.

Background:

On September 7, 2017, plaintiff Wells Fargo Bank, N.A., filed its complaint in this action against defendant Sara R. Guzik asserting six causes of action for breach of contract and common counts. The first cause of action alleges breach of a written contract (a credit card agreement); the remaining causes of action assert this same breach under different legal theories.

On September 28, 2017, Guzik filed her answer to the complaint generally denying the allegations of the complaint.

On October 3, 2017, plaintiff served Guzik with requests for admissions.

On November 28, 2017, Guzik served her verified responses to the requests for admissions. In those responses Guzik admitted: (1) that she was issued a Wells Fargo Visa Card (request No. 1); (2) that she owes plaintiff $5,205.13 on the Wells Fargo Visa Card (request No. 6); (3) that her last payment was on February 10, 2017 (request No. 7). (McCarthy decl., ?? 3-4 & exhibits 1, 2.)

On January 16, 2018, plaintiff filed and served its motion for summary judgment or alternatively for summary adjudication on its claims against Guzik.

No opposition or other response has been filed by Guzik to this motion.

Analysis:

?[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.? (Aguilar v. Atlantic Richfield Co.?(2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare?(2001) 91 Cal.App.4th 454, 468.)

?A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.? (Code Civ. Proc., ? 437c, subd. (a)(1).)

?A plaintiff ? has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff ? has met that burden, the burden shifts to the defendant ? to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant ? shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.? (Code Civ. Proc., ? 437c, subd. (p)(1).)

?A cause of action for breach of contract requires proof of the following elements: (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.)

?Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300.? (Code Civ. Proc., ? 2033.410, subd. (a).)

Plaintiff has presented evidence by the conclusive admissions of Guzik, and by plaintiff?s business records declarant, of the existence of the contract (the credit card account agreement), plaintiff?s performance (by extending credit under the account), defendant?s breach (by failure to pay on the account), and damages to plaintiff (the outstanding debt of $5,205.13). This evidence meets plaintiff?s initial burden on summary judgment as to the first cause of action.

Guzik has not filed opposition or other response to the motion and therefore has not met her burden to establish the existence of a triable issue of fact. Plaintiff has established a right to judgment as to the first cause of action for breach of contact.

The remaining causes of action are duplicative of the primary right set forth in the first cause of action, simply applying different legal theories to the same set of facts. Plaintiff is therefore entitled to summary judgment in the amount of $5,205.13.

Plaintiff?s motion includes a request for an award of costs. Costs are claimed by post-judgment memorandum of costs (Rules of Court, rule 3.1700(a)(1)) and are not separately awarded by this motion.