Opinion
A101588.
10-31-2003
CITICORP DINERS CLUB, INC. etc., Plaintiff and Respondent, v. TARYN VOGET, Defendant and Appellant.
I.
INTRODUCTION
Appellant Taryn Voget appeals from a summary judgment entered in favor of respondent Citicorp Diners Club, Inc. Respondent filed the action below to recover from appellant unpaid credit card charges she made on a Diners Club card issued to her by respondent. Appellant claims on appeal that the trial court prevented her a full and fair opportunity to oppose respondents motion for summary judgment when the court erroneously failed to file a motion to compel discovery she presented to the court while respondents motion was still pending. For the reasons noted below, we affirm.
II.
FACTS AND PROCEDURAL BACKGROUND
Respondent filed a civil complaint on August 7, 2001, alleging four causes of action against appellant for 1) breach of written contract; 2) account stated; 3) open book account; and 4) money lent seeking the amount of $70,153.66, allegedly charged by appellant on a Diners Club credit card issued to her by respondent.
Appellant filed an answer on September 18, 2001, in which she admitted certain allegations contained in paragraphs one through seven of the first cause of action (breach of written contract). Among the allegations admitted was that: "Defendant Taryn Voget applied for a Diners Club Card. By thereafter accepting the Diners Club Card subsequently issued to Defendant in reliance on said application and by using the card, Defendant agreed to be bound by the terms of the application, the Diners Club Cardmember Agreement (attached and incorporated as Exhibit `A), and any changes made thereto from time to time, and to remit payments to Plaintiff pursuant to monthly billings of purchases made on the account. Defendants account number under the contract was 38865606460410. Defendant continued to use the Card and made payments for charges incurred. Defendant continually ratified the terms of the agreement and promised to pay all charges thereon as they became due and payable upon billing by Plaintiff, including late fees for failure to make payments in a timely manner."
Appellants answer denied the allegations in paragraphs eight through nineteen, and contended further that "[t]he balance of $70,153.66 is the responsibility of the Defendants former employer, Accenture, who sponsored the Corporate Diners Club card," and that "[t]he Defendant incurred travel charges in the amount of $70,153.66 while working at Accenture and these charges are the responsibility of Accenture, the Corporate Diners Club card sponsor."
Respondent thereafter served requests for admissions to which appellant responded in due course. In her responses, appellant denied having received a document entitled "Cardmember Agreement," stating that she had "no recollection of receiving this document." Appellant admitted to having used the credit card and denied the rest of the requests for admissions.
On September 16, 2002, respondent filed its notice of motion for summary judgment and a separate statement of undisputed material facts in support thereof. In its statement of undisputed facts, respondent alleged that appellant had executed an application to the "Diners Club Business Charge Card Program," which was supported by an executed application to the program (Exhibit "A") and by the declaration of Curtis Lynch. Respondent further alleged that it issued a "Diners Club Corporate Card" to appellant under Card number 3886-560646-0410, supported by the declaration of Curtis Lynch, and by defendants response to "Request for Admission No. 6." Respondent claimed that Diners Club provided appellant the "Diners Club Corporate Card Program Cardmember Account Agreement" (the agreement), supported by a copy of the agreement (Exhibit "B") and by the declaration of Curtis Lynch.
The agreement provided, in pertinent part, as follows: "(1) THIS AGREEMENT [¶] By accepting, signing or using the Card or the account established in connection with it (`Account), I am agreeing to the terms of this Agreement . . . [¶] (10) DELINQUENCY My Account is delinquent unless Diners Club receives the amount shown on the billing statement as the `Total Payment Due, less any disputed charges, before the next billing date (approximately 30 days). . . . I agree to pay a delinquency charge of 2-1/2% per month, as liquidated damages for my failure to abide by the terms of this Agreement, on any `Past Due Balance unless payment is received prior to the third billing date (approximately 60 days past due). . . . Court costs plus reasonable attorneys fees may be added to any delinquent balance referred to an attorney or agency for collection. . . . [¶] (15) LIABILITY FOR CHARGES [¶] I am responsible for all purchases and cash advances charged to the Card issued to me and Diners Club will seek payment for all charges directly from me regardless of whether I have been reimbursed by my Organization."
In its memorandum of points and authorities in support of its motion for summary judgment, respondent alleged that, because there was no factual dispute as to both the amount of the outstanding obligation and appellants contractual obligation to pay the debt, respondent was entitled to judgment as a matter of law for the amount of the outstanding obligation, plus interest, court costs and reasonable attorney fees. Citing to its first cause of action for breach of a written contract, respondent argued it was undisputed that appellant executed a written application to the Diners Club Business Charge Club Program and that appellant was subsequently issued a Diners Club Corporate Card. Thus, upon issuance of the subject credit card, "Diners Club provided to [appellant] the written Diners Club Corporate Card Program Cardmember Account Agreement," and that the agreement and the application together comprised the written contract. Respondent argued that even if appellant were to claim that she was unaware of the terms of the agreement, once appellant used the card, she was bound by the terms of the agreement. Respondent concluded by noting there were no triable issues of material fact as to the other three causes of action in its complaint.
In her opposition to respondents motion for summary judgment, appellant denied ever having received a copy of the agreement, citing to paragraph 12 of appellants declaration. As to the alleged amount in dispute, appellant denied "that [she] is responsible and alleg[ed] that Accenture is responsible," once again citing to her own declaration for support. As to respondents allegation in its disputed facts that "[appellant] never disputed that the amount of the obligation owed to DINERS CLUB is $70,153.66," appellant replied that "[appellant] has stated that Accenture is responsible for this credit card debt," citing to appellants declaration for support.
In her points and authorities in opposition to respondents motion for summary judgment, appellant claimed that respondent failed to allege and plead the applicable law because section 21 of the agreement states that "[t]his Agreement shall be governed by the law of the State of South Dakota and federal law." Appellant also requested that additional time of at least 90 days be allowed to perform discovery. Appellant also disputed facts three, seven, eight, and nine of respondents "undisputed" facts and claimed that these facts create triable issues of fact as to the liability of Accenture for the debt plaintiff alleges is owed to it.
In its reply, respondent claimed that there is no ambiguity as to which law applies to the action because respondent only relied on California law in its summary judgment motion. Respondent further argued that appellant could not now dispute the amount of the alleged outstanding obligation. First, respondent relied on the Price v. Wells Fargo Bank rule that partial payment of a debt without objection and without otherwise indicating a non-recognition of the validity of the debt is proof of the validity of the debt. (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 480.) Second, respondent cited to Civil Code section 1747.02, subdivision (g), which provides "an inquiry" is a writing that is posted by mail to the address of the card issuer to which payments are normally rendered and that it must be received "no later than 60 days" after the card issuer transmitted the first periodic statement that reflects the alleged billing error. (See Civ. Code, § 1747.02, subd. (g).) Respondent argued that because it sent monthly billing payments to appellant and appellant neither submitted an inquiry pursuant to section 1747.02, subdivision (g), nor indicated a non-recognition of the validity of the debt, the amount of the debt is presumed valid and appellant cannot now attempt to raise a triable issue of material fact.
On or about October 2, 2002, while the motion for summary judgment was pending, appellant served respondent with a request for production of documents. In its response, respondent objected to every document category requested and listed its corresponding reason or reasons for each objection. In a letter dated December 22, 2002, appellant wrote to respondent asking again for several of the same documents. Respondent responded by letter dated December 23, 2002, and in another letter dated December 27, 2002, sent appellant photocopies of its billing statements concerning the subject account.
On October 21, 2002, the trial court granted a 90-day continuance of the hearing on respondents motion for summary judgment to enable appellant time to complete her discovery. On November 18, 2002, the court granted an order for appellants attorney to be relieved as counsel.
Appellant claims to have filed a motion to compel with the trial court on or about January 17, 2003, but that the court did not actually file the motion, for reasons unknown to her. In her alleged motion to compel, appellant moved the court for an order requiring plaintiff to produce the following documents: "1. Contract between Diners Club and Accenture outlining the terms and conditions of the Accenture-Diners Corporate Card Program. [¶] 2. Cancellation agreement of the Corporate Card program between Diners Club and Accenture. [¶] 3. Complete and detailed list of accounts that have or will be settled as part of the cancelled agreement between Diners Club and Accenture."
On February 6, 2003, the trial court granted respondents motion for summary judgment and ordered judgment against appellant in the sum of $70,153.66 in principal balance and $9,283.35 in interest. The court further ordered that costs and attorney fees be established by a memorandum of costs and a motion for attorney fees. The court found that appellant had received the agreement upon issuance of her credit card and that as of June 4, 2001, appellant became obligated to pay the amount of $70,153.66 on account number 3886-560646-0410. The court determined as a matter of law that there were no triable issues of fact as to respondents first cause of action for breach of contract, its second cause of action for account stated, its third cause of action for an open book account, and its fourth cause of action for money lent. Appellant filed this appeal on January 31, 2003.
Appellant filed her appeal before the trial court rendered its ruling. However, because respondent has not raised an objection on this point, we exercise our discretion in accordance with the rule requiring that a notice of appeal be liberally construed in favor of its sufficiency to construe the notice of appeal to be that from the subsequently filed judgment. (Cal. Rules of Court, rules 1(a) & 2(c); see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1996) ¶ 2:67, p. 2-33 (rev. #1, 2001).)
DISCUSSION
Appellant does not contest that the pleadings and evidentiary showing before the court on respondents motion showed facially an entitlement to summary judgment in respondents favor. The only issue raised on appeal is a claim that because the trial court failed to file appellants motion to compel the production of documents, she was denied the right to "full discovery process," and thus "had no way of proving a triable issue." In response, respondent argues that appellants motion to compel was untimely under Code of Civil Procedure section 2031, subdivision (m). We agree with respondent that the appellants motion to compel was not timely, she was otherwise afforded a reasonable opportunity to conduct her discovery, and the discovery she sought by continuance was not relevant to the pending motion. Accordingly, we affirm.
Appellant also argues that "[s]ummary judgment was not [sic] appropriate decision by the court; Appellant had a right . . . to a trial." Appellant supports this argument with the same reasoning as her first, essentially that "[a]ppellant attempted to prove a triable issue, but was stonewalled by Respondent from gathering necessary documents." Based on this, we find that appellants second argument is no different than the first for the purposes of our discussion.
Unless otherwise noted, all further undesignated statutory references are to the Code of Civil Procedure.
An adverse party who chooses to oppose the motion for summary judgment must be allowed a reasonable opportunity to do so. (& sect;§ 2031, subd. (m); 437c, subd. (h).) If the opposing party can show by declarations that controverting evidence may exist, but cannot then be presented, the court must grant a continuance, or else deny the motion. (§ 437c, subd. (h); see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) However, there is no reason to delay summary judgment because discovery remains to be done on matters irrelevant to the summary judgment motion. (Korens v. R. W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1061-1062.) Also, a continuance is less likely where the responding party has failed to undertake discovery with reasonable diligence. (See Tokai Bank of California v. First Pacific Bank (1986) 186 Cal.App.3d 1664, 1669, superseded by statute on another ground unrelated to the issue at bar by Gentner & Co. v. Wells Fargo Bank (1999) 76 Cal.App.4th 1165, 1175-1176; see also A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357.)
Section 437c, subdivision (h) reads in part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. . . ."
Initially we note that the trial court did grant a continuance allowing appellant more time to gather discovery claimed to be necessary for her to oppose the motion for summary judgment. Section 2031, subdivision (g) provides in part, "[t]he party to whom an inspection demand has been directed shall respond separately to each item or category of item by a statement that the party will comply with the particular demand for inspection and any related activities, a representation that the party lacks the ability to comply with the demand for inspection of a particular item or category of item, or an objection to the particular demand. . . ." Respondents response to appellants request for documents was adequate within the meaning of section 2031, subdivision (g).
If appellant desired to contest the objections made by respondent to her document request, her remedy was to file a motion to compel the production of the documents under section 2031, subdivision (m). However, appellant admits she did not submit her motion to compel for filing until on or about January 17, 2003, approximately 59 days after respondents response had been mailed to her. Section 2031, subdivision (m) requires that "notice of [the] motion [be] given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing . . . ." (§ 2031, subd. (m).) Because appellant failed to make a motion to compel within the 45-day time limit of respondents response and did not receive respondents consent to postpone that time limit, she "waive[d] any right to compel a further response to the inspection demand." (Ibid.) Therefore, even if the court had filed her motion, it ultimately would have been properly denied as untimely.
Section 2031, subdivision (m) reads in part: "If the party demanding an inspection, on receipt of a response to an inspection demand, deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general, that party may move for an order compelling further response to the demand. This motion (A) shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand, and (B) shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of any issue presented by it. . . ."
Furthermore, even if appellants motion were heard on the merits and she was granted access to all of the documents requested, her opposition would not have been strengthened because the documents were irrelevant to the claims against her. (See Korens v. R. W. Zukin Corp., supra, 212 Cal.App.3d at pp. 1061-1062.) For example, in appellants notice of the motion to compel which appellant alleges the court received but did not file, appellant sought the production of: "1. Contract between Diners Club and Accenture outlining the terms and conditions of the Accenture-Diners Corporate Card Program. [¶] 2. Cancellation agreement of the Corporate Card program between Diners Club and Accenture. [¶] 3. Complete and detailed list of accounts that have or will be settled as part of the cancelled agreement between Diners Club and Accenture." None of these documents are relevant to any material fact presented in support of respondents motion for summary judgment. Although they may be relevant to appellants efforts eventually to seek redress from her former employer, Accenture, respondents action to recover against appellant for these credit card charges is a separate action that does not involve her former employer. Nor does a commercial relationship, if one exists, between appellants former employer and respondent provide appellant with an affirmative defense to this action.
In sum, we find that appellants claim that summary judgment must be reversed because the trial court failed to file her motion to compel and thus denied her "full discovery process" to be without merit. Not only was appellant granted sufficient time to gather her documents, but she also failed to make a timely motion to compel, if she did in fact disagree with respondents response to her requested documents. Further, all of the documents in her "proposed" motion were irrelevant to the motion for summary judgment. Therefore, we affirm the decision of the court below to grant summary judgment to respondent.
IV.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
We concur: Kline, P.J., Haerle, J.