Wells Fargo Bank, N.A. v. Ashley E. Ayala

When the plaintiff moves for summary judgment/adjudication, it is his/her burden to produce admissible evidence on each element of a cause of action entitling him/her to judgment. (Code Civ. Proc., §437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at 850). Plaintiff will meet his/her

burden by showing no defense to a cause of action if he/she proves each element of the cause of action entitling him/her to judgment on that cause of action. (Code Civ. Proc., §437c, subd. (p)(1)). Once the plaintiff has met his/her burden, the burden shifts to the defendant to show that a triable issue of one or more material fact exists as to that cause of action or a defense. (Code Civ. Proc., §437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at 849-51). The defendant may not rely on his/her answer, but must set forth facts showing a triable issue exists. (CCP §437c(p)(1)).

Code of Civil Procedure section 437c, subdivision (b) requires a summary judgment/adjudication motion be supported by affidavits, declarations, discovery responses (e.g. admissions and interrogatories,) depositions, and matters judicially noticed. The Court must consider reasonable inferences drawn from the presented evidence. (Code Civ. Proc., §437c; Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36). Opposing party’s evidence must be construed liberally, while the moving party’s evidence must be construed strictly. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 373).

Finally, if no opposition to the MSJ has been filed, especially the separate statement of undisputed material facts, Code of Civil Procedure section 437c, subdivision (b)(3) indicates such may constitute a sufficient ground, in the court’s discretion, for granting the motion. However, this provision “does not authorize [the granting of the summary judgment] without first determining that the moving party has met its initial burden of proof.” (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal. App. 4th 1081, 1086; see also Villa v. McFerren (1995) 35 Cal. App.4th 733, 743-45).

Evidentiary Objections As indicated above, Defendant may have prepared and served evidentiary objections, but they are not on file or have not been located as of this tentative ruling. Nevertheless, the opposition memorandum objects to the objection of Loan Workout Specialist Melissa M. Mickael provided in support of the motion and exhibits thereto on multiple grounds.

On page 6 of the opposition, Defendant argues an inadequate foundation is required for electronically stored documents presented, but the supporting authority cited is a federal bankruptcy court case. Defendant provides no authority demonstrating the same rules or guidelines apply under California law.

Defendant further argues Mickael’s declaration lacks personal knowledge that she is competent to testify to the matters asserted, contains inadmissible hearsay, relies upon inadmissible evidence, and includes impermissible conclusions of law. We understand that in some legal systems it is assumed that documents are what they purport to be, unless shown to be otherwise. With us it is the other way around. Generally speaking, documents must be authenticated in some fashion before they are admissible in evidence. This...is true under the Evidence Code (§ 1400 et seq.) although the code in many instances eases certain former requirements.

(Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526.)

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, §1400.) “Authentication of a writing is required before it may be received in evidence.” (Evid. Code, §1401, subd. (a).) “Authentication of a writing is required before secondary evidence of its content may be received in evidence.” (Evid. Code, §1401, subd. (b).)

The business records exception to the hearsay rule is codified at Evidence Code section 1271, which provides: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

In LPP Mortgage, Ltd. V. Bizar (2005) 126 Cal.App.4th 773, the litigation manager of a bank which acted as loan service agent for the respondent declared all applicable records “are kept and maintained in the ordinary course of business under my supervision and control.” (Id. at 776.) No evidence was produced tending to show the documents produced were not true copies. Instead, the opposing party objected the documents were inadmissible hearsay, lacked foundation, and were subject to proof at trial by the submission of original authenticated documents.

The Court of Appeal concluded “respondent submitted substantial credible evidence that Mr. Gilkey was the custodian of respondent's records of the SBA loan to appellants and, as such, he was competent to establish the authenticity of the loan documents. Appellants did not offer any evidence to dispute respondent's proof of the amount due and unpaid on the promissory note.” (Id. at 777.) The object of Evidence Code section 1271 is to eliminate the calling of each witness involved in preparation of the record and substitute the record of the transaction instead. [Citations.]

As stated by the court in People v. Schmidt, supra, 147 Cal.App.2d at page 232, with reference to former Code of Civil Procedure section 1953f, substantially identical in its pertinent language to Evidence Code section 1271: "'The hard and fast rule that the custodian of the records must be produced is specifically dispensed with by the statute. Undoubtedly the Legislature determined that such a rule provoked undue interference with the operation of business enterprises and was unnecessary to insure reliable evidence.

In the words of our Supreme Court in Loper v. Morrison [1944] 23 Cal.2d 600, 608, 609 . . .: "It is the object of the business records statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event. It is

not necessary that the person making the entry have personal knowledge of the transaction. (Citing cases.)" [Citation.]'"

(County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1451.)

Here, Loan Workout Specialist Mickael declares she is responsible for monitoring the legal process for credit card accounts, investigation, and resolution of customer disputes, and research and review of Plaintiff’s business records for purposes of litigation. She researches specific account issues and has personal knowledge of the way Plaintiff conducts business and the usage of record-keeping systems. The records attached were taken from Plaintiff’s file and were prepared in the ordinary course of its business practices.

They were prepared at about the time the occurrences cited therein actually took place by Plaintiff’s automated computer processes. The documents attached were imaged and maintained from Plaintiff’s computer system and printed by Mickael personally. Mickael has been trained in the use of such computer systems and software. With the exception of redacting personal account information and possible re-sizing of the documents, the attached records were not altered and are true and correct copies. (Mickael Decl., ¶¶3-7.)

Mickael’s declaration is adequate to admit the records under the business records exception as stated in Evidence Code section 1271. To the extent Defendant objects to material in the body of the declaration, some of Mickael’s statements may run up against the secondary evidence rule (by purporting to state matters purportedly derived from Defendant’s records) and/or lack personal knowledge. However, the secondary evidence rule does not exclude oral testimony of a writing “if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” (Evid. Code, §1523, subd. (d).) Defendant does not contend the records indicate anything other than what Mickael states. Therefore, the Court overrules all objections to Mickael’s declaration and exhibits thereto.

ANALYSIS The motion is supported by 28 material facts (UFs), the declarations of Mickael and counsel, Defendant’s responses to requests for admissions (RFAs), and various documentary evidence.

The elements of a breach of contract cause of action are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.)

Mickael declares Defendant applied for and was issued a Wells Fargo credit card account which was provided through the mail. The most recent Customer Agreement associated with the card was made available to Defendant for review and objections. Pursuant to paragraph 1 thereof, Defendant accepted the terms by using the card. Defendant’s account was opened with Plaintiff on or about September 22, 2019. Under the Customer Agreement, in exchange for making charges on the card or allowing others to do so, Defendant agreed to repay the principal amount plus applicable interest and finance charges thereon. (Mickael Decl., ¶¶9-14; Exh. 1.)

Mickael further declares Defendant charged goods and services to the account or authorized others to do so, incurring a balance with interest as stated on monthly billing invoices. Copies of all available statements are attached as Exhibit 2. Every month Plaintiff’s computer system generates a monthly statement sent to the customer. As transactions are reported, they are reported in the computer system which stores them, compiles the data, and keeps track of the balance on a daily basis. This date is then used to generate the monthly statement which is sent to the customer.

The generated statements reflect balances as indicated. Pursuant to the Fair Credit Billing Act, Song-Beverly Credit Card Act of 1971, and the Billing Rights Summary included with each monthly statement, Defendant has 60 days to notify Plaintiff of any disputes on the activity of the account. Any disputes from Defendant will trigger a manual review of the account, an investigation, and a written explanation sent to Defendant of any action taken. There is no record of any unresolved disputes or active lawsuits for unresolved disputes. (Mickael Decl., ¶¶15-20.)

Mickael further declares Defendant made payments of the principal and interest through April 17, 2025. No further payments were made thereafter, and a balance of $8,646.57 remains due on the account. (Mickael Decl., ¶¶21-23.)

In response to Plaintiff’s RFAs, Defendant admitted she was the only person who used the subject credit card and that she received statements although she lacks sufficient information as to how often they were received. Defendant further admitted she never disputed the accuracy of any monthly billing statements; and her last payment was April 17, 2025. (Responses to RFA Nos. 3- 5, 7.) In opposition, Plaintiff argues merely attaching a generic contract is inadequate to demonstrate a binding agreement between the parties. “Acceptance of an offer, which may be manifested by conduct as well as by words, must be expressed or communicated by the offeree to the offeror.” (Russell v.

Union Oil Co. (1970) 7 Cal.App.3d 110, 114.) The first substantive section of the Consumer Agreement attaching to Defendant’s credit card provided: “By using or confirming your Account, you and any joint Account holder accept this Agreement’s terms...” (Mickael Decl., Exh. 1, p. 3.) As Defendant acknowledged using the card in her discovery responses, she accepted the terms.

The Court notes that Defendant also contends so-called generic terms are insufficient, but the authority she cites in support is from New York, and Defendant fails to explain why that authority is binding or applicable here in California. Defendant also argues Plaintiff’s showing falls short because Mickael’s declaration is inadmissible on various evidentiary grounds. As indicated, the declaration and all exhibits thereto are admissible.

Defendant further argues Plaintiff failed to demonstrate it complied with regulations adopted under the Federal Truth in Lending Act. This is an affirmative defense set forth in paragraph 23 of Defendant’s answer. In reply, Defendant argues it complied with the Act and that any violation is only enforceable via a separate action. But this argument fails for a more basic reason: “[I]t is not plaintiff's initial burden to disprove affirmative defenses and cross-complaints asserted by defendant” when the plaintiff is the moving party on summary judgment. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶10:235.) Defendant argues Plaintiff failed to show it complied with the Act, but the initial burden here rests

on Defendant to demonstrate such non-compliance. In the absence of affirmative evidence in that regard, Defendant fails to meet its initial burden.

Defendant also asks the Court to submit the matter to arbitration under the agreement, but Defendant never formally moved to compel such arbitration.

Plaintiff meets its initial burden of demonstrating the existence of a contract; its own performance in extending credit to Defendant; Defendant’s breach in failing to pay; and damages.1

As described above, Defendant’s opposing separate statement cites to Defendant’s declaration which has not been filed with the Court. Plaintiff’s reply brief characterizes Defendant’s declaration as follows: “In their declaration, the only ‘evidence’ Defendant provides in opposition of Plaintiff’s motion is self-serving statements claiming they do ‘not currently possess’ the documents and do ‘not believe,’ but cannot affirmatively state, that they received them.” (Reply, 5:21-23, emphasis in original.)

In Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, the Court of Appeal addressed a similar situation where a witness testified to somewhat problematic memory: This assertion illustrates a troubling pattern under current summary judgment practice: the use of facially equivocal evidence to ground an assertion that doubtful facts are “undisputed.” Here the witness was asked whether he performed an act. He was obviously in the best position to know; he might reasonably be expected to remember; and he had a strong interest in giving a flat affirmative response.

Instead he indicated that he did not remember performing the act, but only believed he had. A jury might be entitled to credit this belief, but it would be equally entitled to conclude that the witness was hedging his testimony or that, though the belief might be honestly held, the very absence of a concrete memory supported an inference that the unremembered act did not occur. The testimony thus tended intrinsically to support “inferences reasonably deducible” that “contradicted” the fact asserted by Trendwest. (Code Civ.

Proc., § 437c, subd. (c).) It raised a triable issue of fact on its face. It therefore could not be given the effect sought by Trendwest, which was to place upon Mamou the burden of refuting the asserted fact. This conclusion does not depend on any question of credibility, or on the court's discretionary power to deny conclusive effect to a party's averments about a fact to which he is the sole witness. (See Code Civ. Proc., § 437c, subd. (e).) Instead it recognizes the basic truth that an evidentiary datum may support two conflicting inferences depending on how it is viewed.

The decision of how to view such a datum, in a context like the present one, is unalterably reserved to a jury. (See Cal. Const., art. I, § 16.)

(Mamou, supra, 165 Cal.App.4th at p. 695, fn. 7.)

1 Note as to damages, Plaintiff also claims costs of $815, supported by a memorandum of costs. This would result in a total judgment (inclusive of costs) of $9,461.57. Defendant does not object to costs, which therefore appear properly awarded if the motion is ultimately granted.

Depending on precisely how Defendant’s opposing declaration reads here, it could be sufficient to raise a triable issue. Plaintiff argues such language should be disregarded. While the Mamou Court seems to criticize the practice of equivocating as to what a witness remembered, it acknowledged it could be construed in two different ways by the trier of fact. On summary judgment, the opposing party is entitled to the benefit of all reasonable inferences. Therefore, if Defendant asserted she did not remember certain pertinent facts, such might be enough to raise a triable issue.

But again, since the Court is without the opposing declaration directly in order to make this determination after having given the Defendant a second opportunity to provide it, the Court finds that Defendant has not provided sufficient facts to raise a triable issue. Therefore the motion for summary judgment is granted.

Dated: August 12, 2026

____________________________ Judge Kory Mathewson

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