Collect Access v. Arabi
Filed 6/20/13 Collect Access v. Arabi CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COLLECT
ACCESS, LLC,
Plaintiff and Respondent,
v.
ALEX
ARABI,
Defendant and Appellant.
B239764
(Los Angeles County
Super. Ct. No. EC053140)
APPEAL from a judgment of the Superior Court of
County, William Stewart, Judge. Affirmed.
Alex Arabi, in pro. per., for
Defendant and Appellant.
Zee Law Group, Tappan Zee and Jamie San Gabriel for Plaintiff and Respondent.
Plaintiff Collect Access, LLC (Collect
Access) is the assignee of an unpaid account on a credit card issued by Advanta
Bank Corp. (Advanta). Account statements
for the card bear two names as account holders:
Rapid Touch Communications (Rapid
Touch) and Belal Arabi (Belal). Rapid
Touch was the fictitious business name of Alex Arabi, Belal’s brother.
Collect Access sued Belal, Rapid
Touch, and Alex (naming him using various aka’s, including, as here relevant,
“Alex Arabi d.b.a. Rapid Touch Communicationsâ€), alleging causes of action for
breach of contract, money due on an open account, and money due on an account
stated. Belal failed to file an answer
to the complaint, and Collect Access obtained a default judgment against
him. It then moved for
trial court granted the motion. Alex
appeals from the judgment against him.
As in the trial court, Alex represents himself on appeal. We affirm the judgment.
In support of its motion for summary
judgment against Alex, Collect Access produced the following evidence.
According to fictitious business
statements filed with the City of Glendale, California, Alex did business in the
name of Rapid Touch. He also personally
applied for a certificate of use and occupancy in that business name.
Gary Ngan, an agent of Collect Access
and one of its custodians of records, submitted a declaration in which he
identified several exhibits. Among them
were documents showing that in December 2007, Advanta assigned the right to
collect an unpaid credit card account identified by its number (ending in 0012)
and the name “Arabi, Belal†to The
Sagres Company. The outstanding balance
was $35,832.22. In February 2009, The
Sagres Company assigned the right to collect to Collect Access.
Ngan also identified copies of
statements of account issued by Advanta for the account ending in 0012 from
November 2006 through August 2007. The
addressees on the statements were Rapid Touch and Belal. As of August 31, 2007, the outstanding balance of the
principal on the account was $35,832.22, in excess of the limit of
$30,000. Payment was overdue and
charging privileges had been terminated.
The August 31 statement reflects that Advanta “charg[ed] off†the
$35,832.22 balance, thus closing the account.
That sum was the amount stated to be due in the assignment from Advanta
to Sagres and from Sagres to Collect Access.
According to Ngan, to date no further payments had been made.
In response to requests for admissions
served by Collect Access, Alex admitted that that he owned Rapid Touch and that
Rapid Touch was used on the application for credit with Advanta. He also admitted that Belal was an agent of the
company with the authority to enter contracts, and that Alex gave Belal the
authority to pay vendors from the credit card account. Finally, Alex admitted that he made charges
and/or purchases with the credit card, that he signed credit card sales receipts,
and that he used products or services that were charged to the account.
In its points and authorities, Collect
Access argued that the Advanta account extended credit to Belal and Rapid
Touch. Because Belal was an agent of
Rapid Touch, and because Alex, as the sole owner of Rapid Touch, did business
under the fictitious business name of Rapid Touch, Alex was personally liable
for the outstanding balance. (See
49 Cal.App.4th 1342, 1348 [doing business under a fictitious business name does
not create a separate entity distinct from the person who owns the business].)
The summary judgment motion was set
for hearing on November 18, 2011. On
November 10, 2011, Alex applied ex parte for an order to compel Collect Access
to produce a copy of the credit card agreement, and also requested a
continuance of the summary judgment motion for 30 days. In support of the request for a continuance,
Alex declared that he had “been communicating with†Belal, who was in Lebanon,
and had “demanded he step[] forward and take responsibility for his debts†due
on the credit card. According to Alex,
there was no mail service in Lebanon “except a very complicated and expensive
one,†and therefore he “rel[ied] on traveling known persons [
back and forth between us.â€
The court set the matter on calendar
for November 18, 2011, the same date as the hearing on the summary judgment
motion. On that date, Alex filed an
opposition to summary judgment, which included a separate statement of disputed
material facts supported by his own declaration in which he denied that he
(doing business as Rapid Touch) entered a credit card agreement with
Advanta. Rather, he asserted that the
account was Belal’s and that Belal had given him a card on the account for his
personal and business use. He further
declared that he had served Collect Access with a request for production of the
credit agreement, but Collect Access had never produced it.
The hearing on November 18 was not
reported. According to the minute order
from the proceeding, the court denied Alex’s motion to compel production of the
credit card contract and granted Collect Access’s summary judgment motion. In a formal order granting summary judgment,
the court stated in part that “[a]fter full consideration of evidence, and the
separate statements of each party,†it determined that no
I.
Denial of a Continuance
Alex contends that the trial court
erred under Code of Civil Procedure section 437c, subdivision (h),
in failing to continue the hearing on the summary judgment motion, because
Collect Access failed to comply with his request for production of the credit card
application and agreement. We disagree.
Section 437c, subdivision (h)
states: “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.
The application to continue the motion to obtain necessary discovery may
also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.â€
Alex’s ex parte request and attached
declaration did not meet the requirements of section 437c, subdivision (h) so
as to justify a continuance. Collect
Access served its response to Alex’s Request for Production of the credit card
agreement on September 19, 2011. The
responses consisted of a series of objections.
Section 2031.310, subdivision (c), requires that any motion to compel
further responses be served within 45 days after service of an unsatisfactory
response; otherwise, the right to compel a response is waived.
could move to compel further responses expired November 3, 45 days after
September 19. However, Alex did not file
his ex parte application to obtain a continuance until November 10, 2011.
The 45-day time limit is
“‘jurisdictional’ in the sense that it renders the court without authority to
rule on motions to compel other than to deny them.†(Sexton
v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Thus, the trial court had no choice but to
deny Alex’s request to compel further responses to his request for
production. That being so, a continuance
would have served no purpose, because there was no additional “discovery to be
had,†(§ 437c, subd. (h)), in that the court had no authority to compel Collect
Access to submit any further response to Alex’s request for production.
requirements of section 437c, subdivision (h).
Insofar as Alex is contending that he
was entitled to a continuance in order to obtain evidence from Belal, who was
in Lebanon, he also failed to satisfy section 437c, subdivision (h). In his declaration, he stated that he had
demanded that Belal “step[] forward and take responsibility for his debts†due
on the credit card. But he made no
showing that any admissible evidence from Belal, such as a copy of the credit
card application and agreement, could be produced. Thus, he failed to show that a continuance
would permit him to produce evidence necessary to oppose the summary judgment
motion.
II.
Opposition Separate Statement
Alex contends that the trial court
failed to consider his untimely separate statement of undisputed material
facts. (See Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89,
98-99 [error to grant summary judgment based on failure to file opposition
separate statement absent showing that one could not be filed within a
reasonable time].) However, the order
granting summary judgment recites that the court granted the motion “[a]fter
full consideration of evidence, and the separate statements of each party.†Nothing in the record contradicts that
statement.
III.
The Grant of Summary Judgment
In the alternative, Alex contends that
the court erred in failing to specify the reasons for its grant of summary
judgment and to specifically refer to the evidence relied upon. (§ 437c, subd. (g).)
comply with this requirement, the error does not require reversal, because our
independent review establishes the validity of the judgment. (Soto
v. State of California (1997) 56 Cal.App.4th 196, 199.)
When the plaintiff moves for summary
judgment, it bears an initial burden of production to make a prima facie
showing that establishes each element of the cause of action. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) The evidence must be adequate to require a
reasonable trier of fact to find each element by a preponderance of the
evidence. (Id. at pp. 850, 851.) If
plaintiff succeeds, the burden of production shifts to the defendant, who must
make a prima facie showing that there is a triable issue of material fact as to
either the cause of action or a defense thereto. (Ibid.)
Alex argues, in substance, that
without the credit card agreement, there was insufficient evidence to prove
that he was liable on the account. He is
mistaken.
Collect Access produced sufficient
evidence to prove the existence of a credit card agreement between Advanta on
the one hand, and Belal and Rapid Touch on the other. The account statements issued by Advanta were
addressed to both Rapid Touch and Belal,
thus indicating that both names reflected the holders of the account. Further, the statements evidenced the
essential terms of the credit agreement, including the credit limit, the
running balance, the charges made on the account, the minimum payment due, the
due date, the interest rate, and the finance charges.
Moreover, in requests for admission,
Alex admitted that that he owned Rapid Touch, that Belal was an agent of the
company with the authority to enter contracts, and that Belal used the name
Rapid Touch on the application for credit with Advanta. Further, Alex admitted that he gave Belal the
authority to pay vendors from the credit card account. Also, Alex admitted that he made charges
and/or purchases with the credit card, that he signed credit card sales
receipts, and that he used products or services that were charged to the
account. This evidence is sufficient to
infer that Belal, as an agent of Rapid Touch, entered the credit card agreement
on behalf of Rapid Touch and himself to pay business expenses.
Undisputed evidence shows that Alex
was the sole owner of Rapid Touch, and that he did business under the
fictitious name of Rapid Touch. “Use of
a fictitious business name does not create a separate legal entity. As the First District Court of Appeal
recently noted, ‘“[t]he designation [DBA] means ‘doing business as’ but is
merely descriptive of the person or corporation who does business under some
other name. Doing business under another
name does not create an entity distinct from the person operating the business.†[Citation.]
The business name is a fiction, and so too is any implication that the
business is a legal entity separate from its owner.’ [Citations.]â€
(Pinkerton’s, Inc. v. Superior
Court, supra, 49 Cal.App.4th at p. 1348.)
Having given Belal authority to act as
the agent of Rapid Touch and enter contracts on behalf of Rapid Touch, Alex, in
essence, gave him the authority to act as his personal agent when Belal applied
for credit with Advanta using Rapid Touch’s name on the application. “An undisclosed principal is liable for the
contractual obligations incurred by his agent in the course of the agency
[citations], even though the obligee did not know there was a principal at the
time the obligations were incurred.†(
248 Cal.App.2d 610, 612; see Civ. Code, § 2330.)
Alex argues, in substance, that his
declaration in opposition to summary judgment, in which he stated that he did
not apply for credit or enter a credit agreement with Advanta, was sufficient to
raise a triable issue of fact whether he was liable for the debt on the
account. However, as we have explained,
Alex is liable because Belal acted as the agent of Rapid Touch in entering the
credit agreement. Rapid Touch was Alex’s
fictitious business name, and he is personally liable for debts held in Rapid
Touch’s name.
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IV.
Evidentiary Objections
Alex contends that the court erred in
failing to rule on his evidentiary objections.
We agree (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 532), but the error was not prejudicial.
Alex objected that the declaration of
Gary Ngan was defective because it failed to set forth the place where it was
executed. However, a declaration need
not state the place where it was executed, if it “states the date of execution
and that it is so certified or declared [under penalty of perjury] under the
laws of the State of California.†(§
2015.5, subd. (2).) Ngan’s declaration
was dated and signed under penalty of perjury under the laws of California, and
thus did not need to state the place where it was executed.
Alex contended that Ngan’s declaration
was defective because it failed to state Ngan’s specific title. In his declaration, Ngan identified himself
as “an agent†of Collect Access who was “authorized [by Collect Access] to
authenticate its records†and was “one of
[Collect Access’] custodians of those records.†Alex cites no authority suggesting that Ngan
needed to be any more specific for his declaration to be admissible, and we are
aware of none.
Alex objected to a portion of Ngan’s
declaration describing the alleged credit card agreement between Advanta and
Alex, on the ground that Ngan had no personal knowledge of the agreement and
was relying on hearsay statements in documents.
Ngan declared in relevant part:
“[O]n or around September 25, 2000, Defendants entered into an agreement
with [Advanta] for an open line of credit, in which [Advanta] issued and
extend[ed] to Defendants and their business [Rapid Touch] a line of credit, and
which Defendants agreed to make payments on the balance incurred upon such
account.†We agree that Ngan failed to
demonstrate any personal knowledge of the agreement. But, as we have discussed above, other
evidence was sufficient to prove Alex’s liability for the credit card debt. Therefore, the trial court’s error in not
ruling on the objection did not prejudice Alex.
Alex objected that Ngan had no
personal knowledge of his alleged failure to pay the credit card debt or the
amount owed. However, the account
statements produced by Collect Access showed that by the end of August 2007,
the outstanding balance of the principal on the account was $35,832.22 and
payment was overdue. Charging privileges
had been terminated, and the account had been closed. This evidence was sufficient to establish
Alex’s breach by failing to pay off the balance of the principal due.
DISPOSITION
The judgment is
affirmed. Collect Access shall recover
its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We
concur:
EPSTEIN, P. J.
MANELLA, J.
order granting summary judgment is not appealable; the appeal must be taken
from the final judgment. (
Cal.App.4th 753, 761-762, fn. 7.) In the
instant case, the Los Angeles Superior Court Civil Case Summary states that the
trial court entered judgment on January 13, 2012. However, Alex failed to attach a conformed
copy of the judgment appealed from to his Civil Case Information
Statement. (See Cal. Rules of Court, rule
8.100 (g)(2) [“appellant must serve and file in the reviewing court a completed
Civil Case Information Statement, attaching a copy of the judgment or appealed
order that shows the date is was entered.â€].)
Nonetheless, in the interest of efficiency, we will exercise our
discretion to consider the merits of the appeal rather than dismiss it. (See Kasparian
v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14, fn. 1.)
undesignated section references are to the Code of Civil Procedure.
