Prof'l Collection Consultants v. Lauron

• Decision Date: 16 February 2017
• Docket Number: H042686
• Citation: 8 Cal.App.5th 958,214 Cal.Rptr.3d 419
• Court: California Court of Appeals Court of Appeals
• Parties: PROFESSIONAL COLLECTION CONSULTANTS, Plaintiff, Cross-defendant and Appellant, v. Krystal G. LAURON Defendant, Cross-complainant and Respondent.

8 Cal.App.5th 958

214 Cal.Rptr.3d 419

PROFESSIONAL COLLECTION CONSULTANTS, Plaintiff, Cross-defendant and Appellant,

v.Krystal G. LAURON Defendant, Cross-complainant and Respondent.

H042686

Court of Appeal, Sixth District, California.

Filed February 16, 2017

Law Offices of Clark Garen, Clark Garen, for Plaintiff and Appellant.

Consumer Law Center, Inc., Frederick W. Schwinn, Raeon R. Roulston, San Jose, for Defendant and Respondent.

ELIA, J.

This appeal arises out of a credit card debt collection action involving two credit cards. Appellant Professional Collection Consultants (PCC), as an assignee of the original creditor, filed a complaint against respondent Krystal Lauron alleging common counts of account stated and open book account. Lauron filed a cross-complaint alleging PCC was attempting to collect on a time-barred debt in violation of the federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. §§ 1692 et seq. ) and California's Rosenthal Fair Debt Collection Practices Act (Rosenthal Act) (Civ. Code, § 1788 et seq. ). In a motion for summary judgment on both complaints, Lauron argued that a Delaware statute of limitations applies to PCC's claims because the underlying credit card agreement (Cardmember Agreement) contains a Delaware choice-of-law provision. She further argued that, under Delaware's applicable three-year limitations period, PCC's claims were untimely. The trial court ruled that the gravamen of PCC's action was that Lauron had breached the Cardmember Agreement and that the action was barred by Delaware's three-year statute of limitations governing written contract claims. Accordingly, the court entered summary judgment in Lauron's favor on PCC's complaint and her cross-complaint.

On appeal, PCC contends the trial court erred in applying Delaware law to its claims, which it says do not arise under the Cardmember Agreement. It maintains its claims are timely under the applicable California limitations period.

We will reverse and remand the matter to the trial court with directions. With respect to the first credit card, there is no evidence the Cardmember Agreement applies. Nor is there any evidence as to when PCC's claims accrued. Accordingly, Lauron has not established that PCC's claims seeking to collect on debt incurred on the first card were untimely. As to the second credit card, we agree with Lauron that Delaware's three-year limitations period applies to PCC's claims. However, the grant of summary judgment must be reversed because she has not established when PCC's claims accrued.

I. FACTUAL BACKGROUND ¹

Lauron, a Santa Clara County resident, obtained two credit cards issued by JP Morgan Chase (Chase), one ending in 5285 and one ending in 5274. In connection with the card ending in 5274, Chase sent Lauron a Cardmember Agreement. It provides: "This agreement governs your credit card account with us ... You promise to pay us for all transactions made on your account ... [¶] You will be bound by this agreement if you or anyone authorized by you use your account for any purpose...." With respect to "PAYMENTS," the Cardmember Agreement states "Your billing statement and accompanying envelope include instructions you must follow for making payments and sets forth the date and time by which we must receive the payment." The Cardmember Agreement includes a provision titled "GOVERNING LAW," which provides "THE TERMS AND ENFORCEMENT OF

THIS

AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT."

No charges were made to the account ending in 5274 after June 8, 2008. Chase received the last payment on that account on October 30, 2008. The last item on the account was entered prior to November 13, 2008.

Chase sold both of Lauron's credit card accounts to Turtle Creek Assets Ltd., which sold them to Wireless Receivables Acquisition Group, LLC, which assigned the accounts for purposes of collection to PCC in March 2010.

II. PROCEDURAL BACKGROUND

On November 14, 2011, PCC filed a limited civil case against Lauron alleging common counts of open book account and account stated and seeking $10,000 in damages. Using the standard Judicial Council form for "COMPLAINT—Contract," PCC alleged that Chase was the original creditor on the claim at issue, which had been assigned to PCC. In discovery responses, PCC indicated that its complaint was based on two credit cards, one ending in 5285 and one ending in 5274.

Lauron filed a first amended cross-complaint seeking damages and judicial declarations that PCC (and other cross-defendants not involved in this appeal) had violated the FDCPA and the Rosenthal Act by, among other things, attempting to collect a time-barred debt. Thereafter, the case was reclassified as an unlimited civil case.

PCC moved for summary judgment on its complaint and Lauron's cross-complaint and sought summary adjudication of issues. The trial court denied those motions.

Lauron then moved for summary judgment on her cross-complaint and PCC's complaint. On July 9, 2015, the court issued an order granting Lauron summary judgment on PCC's claims, determining that Delaware's three-year state of limitations applied and that the limitations period had expired before PCC filed suit. In the same order, the court also granted summary judgment to Lauron on her cross-claims, concluding that PCC was attempting to collect a time-barred debt in violation of the FDCPA and the Rosenthal Act. The court reasoned that, although PCC had characterized its claims as common counts, in fact, its action was one for breach of the Cardmember Agreement. In its order, the court did not mention or differentiate between the two credit card accounts at issue. The court entered judgment in Lauron's favor and against PCC on both PCC's complaint and Lauron's cross-complaint on July 23, 2015.

PCC timely appealed on August 7, 2015.

III. DISCUSSION

A . Standard of Review

"A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action." (Jones v . Wachovia Bank (2014) 230 Cal.App.4th 935, 945, 179 Cal.Rptr.3d 21 (Jones ).) The expiration of the applicable statute of limitations is one such complete defense. ( Cucuzza v . City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037, 128 Cal.Rptr.2d 660 ; Rose v . Fife (1989) 207 Cal.App.3d 760, 770, 255 Cal.Rptr. 440.) A defendant cannot "simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" (Aguilar v . Atlantic Richfield Co . (2001) 25 Cal.4th 826, 854, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar ), fn. omitted), but "must ‘support[ ]’ the ‘motion’ with evidence." (Id . at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.) "The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Ibid . ) "If a defendant's moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact." (Jones , supra , at p. 945, 179 Cal.Rptr.3d 21.)

"[W]here the plaintiff has ... moved for summary judgment[,] ... [it] has the burden of showing there is no defense to a cause of action. (Code Civ. Proc., § 437c, subd. (a).) That burden can be met if the plaintiff ‘has proved each element of the cause of action entitling [it] to judgment on that cause of action.’ (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ (§ 437c, subd. (p)(1).)" (S .B i.iC i.iC ., Inc . v . St . Paul Fire & Marine Ins . Co . (2010) 186 Cal.App.4th 383, 388, 112 Cal.Rptr.3d 40.)

In reviewing an order granting summary judgment, we review the entire record de novo in the light most favorable to the nonmoving party to determine whether the moving and opposing papers show a triable issue of material fact. (Addy v . Bliss & Glennon (1996) 44 Cal.App.4th 205, 214, 51 Cal.Rptr.2d 642.)

B . Credit Card Account Ending in 5285

As noted above, Lauron had two credit card accounts with Chase, both of which were the subject of PCC's complaint. On appeal, the parties do not distinguish between the two credit card accounts. PCC states that the appeal involves both credit cards. Lauron refers to a single "account," but also states that PCC "sufficiently briefed" the facts, which she says "are not in dispute," suggesting she agrees that both cards are at issue.

The parties direct us to nothing in the record establishing that the credit card account ending in 5285 is governed by the Cardmember Agreement. Nor have we found any such evidence in our review of the record. Accordingly, there is no basis for applying Delaware law to PCC's claims, to the extent they are based on that account.

Under California law, a four-year statute of limitations applies to actions for breach of contract, account stated, and open book account. (Code Civ. Proc., § 337.)² "Ordinarily, a cause of action for breach of contract accrues on the failure of the promisor to do the thing contracted for at the time and in the manner contracted." (Waxman v . Citizens Nat . Trust & Sav . Bk . (1954) 123 Cal.App.2d 145, 149, 266 P.2d 48.) To the extent PCC's action is construed as one for breach of contract, it accrued when Lauron failed to pay...