Filed 6/20/13 Collect Access v. Arabi CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


COLLECT ACCESS, LLC,                                                 B239764

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. EC053140)
         v.

ALEX ARABI,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles 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
Communications”), 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 summary judgment against Alex, and the 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.1


               PROCEDURAL AND EVIDENTIARY BACKGROUND
      In support of its motion for summary judgment against Alex, Collect Access
produced the following evidence.



1
        An order granting summary judgment is not appealable; the appeal must be taken
from the final judgment. (Levy v. Skywalker Sound (2003) 108 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.”].) 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.)

                                            2
      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



                                         3
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 Pinkerton’s, Inc. v. Superior Court (1996) 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 [sic] to transport such legal
documents back and forth between us.”
      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

                                          4
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 triable issues of fact existed.


                                       DISCUSSION
      I.     Denial of a Continuance
      Alex contends that the trial court erred under Code of Civil Procedure
section 437c, subdivision (h),2 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.”




2
      All undesignated section references are to the Code of Civil Procedure.

                                           5
      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.3 Here, the 45 day
period within which Alex 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.4 Therefore, Alex’s showing failed to meet the requirements
of section 437c, subdivision (h).


3
       Section 2031.310, subdivision (c) provided: “Unless notice of this motion is 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, the demanding party waives any right to compel a further
response to the demand.”
4
       Because we dispose of the issue on this ground, we need not discuss the failure of
the ex parte application to comply with the procedural requirements of a motion to
compel.

                                            6
       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).)5 While it is true that the court failed to comply

5
       Section 437c, subdivision (g) states in relevant part: “Upon the grant of a motion
for summary judgment, on the ground that there is no triable issue of material fact, the
court shall, by written or oral order, specify the reasons for its determination. The order
shall specifically refer to the evidence proffered in support of, and if applicable in
                                               7
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


opposition to, the motion which indicates that no triable issue exists. The court shall also
state its reasons for any other determination. The court shall record its determination by
court reporter or written order.”

                                             8
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.]” (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.” (Nichols v. Arthur Murray, Inc. (1967) 248
Cal.App.2d 610, 612; see Civ. Code, § 2330.)



                                           9
      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.6


      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



6
       Alex also refers to a declaration submitted by Belal concurrently with the opening
brief on appeal. We have been unable to locate any such document. In any event, such a
declaration could not be considered, because it was not submitted to the trial court.
                                            10
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.




                                          11
                                 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.




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