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Target National Bank no longer plaintiff...replaced by another???

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I have a coworker who was sued by TNB. An answer was served and recently she received both form and special interrogatories. (I've never seen both!)


Along with the 'discovery' she received a notice of change in the case, which was that the plaintiff is now another party altogether. Being that we're in Cali, is an updated answer required?


And if not required, is an updated answer allowed now, providing that this new plaintiff is now a third party debt purchaser? Being that is the case now, I think it changes her tactics a bit and wanted clarification by the sage posters here.


Please advise.

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A BOP is inappropriate for this case, as the sole COA is account stated. Though the complaint (which is form rather than drafted on pleading paper) stated that it was account stated and that defendant was unjustly enriched. I really thought claiming the defendant was unjustly enriched would count as another COA, but they listed under amount of COA - 1.


The change in Plaintiff changes the tactics in that now they have to provide more information for standing and whatnot, I believe, and also we are hoping there will be difficulty during the CCP98 portion of the case. As always, time will tell.

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373. Common Count: Account Stated

plaintiff claims that defendant owes him money on an account stated. To establish this claim, plaintiff must prove all of the following:

1. That defendant owed plaintiff money from previous financial transactions;

2. That plaintiff and defendant, by words or conduct, agreed that the amount stated in the account was the correct amount owed to plaintiff;

3. That defendant, by words or conduct, promised to pay the stated amount to plaintiff;

4. That defendant has not paid plaintiff [any/all] of the amount owed under this account; and

5. The amount of money defendant owes plaintiff.

New December 2005

Sources and Authority

•“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

•“The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

•“An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ‘ “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties.” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786—787 [163 Cal.Rptr. 483], internal citations omitted.)

•“To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752—753 [241 Cal.Rptr. 883], internal citations omitted.)

•“An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

•“ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim. Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

•“The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

•“An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

•“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

•“A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972—973

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40—8.46 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

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3426.3. (a) A complainant may recover damages for the actual loss

caused by misappropriation. A complainant also may recover for the

unjust enrichment caused by misappropriation that is not taken into

account in computing damages for actual loss.

( B ) If neither damages nor unjust enrichment caused by

misappropriation are provable, the court may order payment of a

reasonable royalty for no longer than the period of time the use

could have been prohibited.

© If willful and malicious misappropriation exists, the court

may award exemplary damages in an amount not exceeding twice any

award made under subdivision (a) or ( B ).

Section: Previous 3426 3426.1 3426.2 3426.3 3426.4 3426.5 3426.6 3426.7 3426.8 3426.9 3426.10 3426.11 Next

California courts are split as to whether there is an independent cause of action for unjust enrichment. Baggett v. Hewlett-Packard Co., 582 F. Supp. 2d 1261, 1270-71 (C.D. Cal. 2007) (applying California law). One view is that it is a general principle underlying various legal doctrines and remedies. McBride v. Boughton, 123 Cal. App. 4th 379, 387 (2004). Another view is that it is a cause of action and its elements are receipt of a benefit and unjust retention of the benefit at the expense of another. Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723, 726 (2000). Determining whether it is unjust for a person to retain a benefit may involve policy considerations. First Nationwide Sav. v. Perry, 11 Cal. App. 4th 1657, 1663 (1992). For instance, "a customary way of regarding a particular type of transaction may justify the inference that the payor has assumed the risk of mistake." Id.

http://digitalcommons.lmu.edu/llr/vol44/iss1/11/ download on unjust enrichment


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