Filed 4/19/16 Swearinger v. Humenik CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


WILLIAM SWEARINGER, as                                               B258174
Administrator, etc.,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. EC056445)
         v.
EDWARD HUMENIK, as Trustee, etc.,
         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Donna
F. Goldstein, Judge. Affirmed.
         Law Offices of Michael D. Grahn and Michael D. Crahn, for Plaintiff and
Appellant.
         Law Office of Michael J. Coppess and Michael J. Coppess, for Defendant and
Respondent.




                                     _____________________________
       Plaintiff William Swearinger appeals from the judgment entered in favor of
defendant Edward Paul Humenik following a court trial on a cause of action for account
stated. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND
       William Swearinger is the son of Patricia Swearinger. Edward Humenik is the son
of Paul Humenik. Paul began dating Patricia in 1997 or 1998 and moved into her home
in 2004 or 2005. 1 Over a 12 year period, Paul wrote 113 personal checks to Patricia,
which she never cashed. The checks totaled $41,178.15 and were written in amounts
ranging from $40.00 to $1,200.00. Paul died on March 8, 2011.

       1. The Pleadings
       On July 21, 2011, Patricia, represented by her son, William, filed a verified
complaint for money. Patricia died on January 27, 2012. On June 18, 2012, William
filed a first amended complaint, as Administrator of the Estate of Patricia Swearinger,
against Edward, as successor of the Paul Humenik Trust.2 The complaint asserted a
cause of action for account stated, alleging that Paul had become indebted to Patricia
prior to his death. The complaint sought a balance due of $41,178.15 plus interest and
attorney’s fees.

       2. The Trial
       The action was tried to the court. William testified that his mother Patricia gave
him 113 checks after Paul died. The checks were made payable to Patricia, were
drawn on Paul’s bank account and bore Paul’s signature. The earliest check was dated


1       Because some of the parties “share the same last name, we refer to them by their
first names for convenience and clarity” (Jones v. ConocoPhillips Co. (2011) 198
Cal.App.4th 1187, 1191, fn. 1) and “not out of disrespect.” (Cruz v. Superior Court
(2004) 120 Cal.App.4th 175, 188, fn. 13.)

2      The complaint also alleged that Edward, individually, had received money from
the Paul Humenik Trust and was thus personally liable for Paul’s debts under Probate
Code section 19400.
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May 14, 1999 and the latest check was dated February 23, 2011. Examining copies of
some of the checks in court,3 William testified at length concerning the handwritten notes
on the memo line of each check. The notes referred either to Paul’s personal expenses or
to his portion of expenses he shared with Patricia.4
       William testified his mother informed him the checks had not been deposited; they
were I.O.U’s for the debts Paul owed her for the referenced expenses. William recorded
the 113 checks on a spreadsheet and determined the total balance due by adding up the
checks. Patricia reviewed the spreadsheet and confirmed that the accounting was
accurate. In response to questions by the court, William testified Patricia never told him
about Paul’s debt or the checks either “during the time these check were written” or
before Paul died.
       At the conclusion of William’s presentation of evidence, Edward moved for
nonsuit as Successor Trustee of the Paul Humenik Trust.5 In partially granting the
motion, the trial court found there was no account stated as to the sum of $41,178.15
because there was no evidence that Paul and Patricia had agreed upon a balance due in
that amount. The court found instead the 113 checks reflected individual debts, each one
indicating the agreed upon balance due and owing as an account stated.



3      After copies of the checks were made, the originals were stolen from William’s
safe during a burglary of his law office. Eduardo Gutierrez, a plaintiff’s witness, testified
that he had scanned the original checks and had placed them in the office safe before the
burglary occurred.

4      For example, William testified that on check number 1666, dated May 14, 1999
and written in the amount of $500.00, the memo line read: “Paul’s tax prep,” in Paul’s
handwriting; and that on check number 2056, dated January 15, 2000, the memo line
read, “Thank you, November of ’99 Mexico Trip” in Paul’s handwriting. Counsel did
not ask William for what amount check number 2056 was written. William also testified
that Paul had experienced income tax problems around the middle of 1999 and that the
three of them had vacationed together in Mexico in late 1999.
5      Edward also moved for nonsuit in his individual capacity, and the trial court
granted the motion.
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        Relying on section 337, subdivision 2, the court determined William’s action to
recover on checks dated more than four years prior to the filing of the initial complaint on
July 21, 2011 was time barred.6 Of the 113 checks, 11 of them, totaling $3,409.45, fell
within the applicable four-year period.7
        Edward testified that after his father died, Patricia said Paul did not have much,
but he did not owe anything. On cross-examination, Edward testified he did not include
Patricia’s remark in his answers to interrogatories because he did not think of it at the
time.

        3. Trial Court’s Findings and Judgment
        Following argument by counsel, the trial court found each of the 11 checks not
time barred reflected an agreed-upon balance due as an individual account stated. The
court found for William and against Edward in the amount of $3,409.45 and entered
judgment on June 12, 2014. William appealed.

                                           DISCUSSION
        William makes two contentions on appeal. First, he argues the trial court erred in
failing to find $41,178.15 was the agreed-upon balance due from Paul to Patricia.
According to William, in finding Paul and Patricia had expressly agreed that each of the
113 checks reflected a debt he owed her, the court should also have found they had
impliedly agreed that the sum of the checks reflected the aggregate debt he owed her.
Additionally, William maintains the court’s failure to find an implied agreement was an
error of law, because the court wrongly believed the agreed-upon balance for an account


6      Section 337, subdivision 2 provides in part, “Within four years: . . . [¶] An action
to recover . . . upon an account stated based upon an account in writing, but the
acknowledgment of the account stated need not be in writing . . . provided, however, that
where an account stated is based upon one item, the time shall begin to run from the date
of said item, and where an account stated is based upon an account of more than one
item, the time shall begin to run from the date of the last item.”

7       On appeal, William does not challenge the court’s ruling on the statute of
limitations.
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stated must always be reduced to writing. William urges us to apply the de novo or
independent standard of review in this case in light of the court’s legal error. (See
Haworth v. Superior Court (2010) 50 Cal.4th 372, 384.)
       However, William’s arguments challenge the sufficiency of the evidence. The
trial court did not grant a nonsuit on the ground the purported balance due of $41,178.15
had not been reduced to writing, but instead found that William had failed to prove there
was any agreement between Paul and Patricia establishing a debt in that amount. This is
a factual issue.

   1. Standard of Review
       Where, as here, the trier of fact has concluded the party with the burden of proof
did not carry the burden and that party appeals, “‘it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports the judgment. . . . [¶]
Thus, where the issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.”’” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern
(2013) 218 Cal.App.4th 828, 838; accord, In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

   2. William Failed to Establish The Account Stated He Alleged
       In general, the necessary elements to prove a cause of action for 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; [and] (3) the 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;
accord Trafton v. Youngblood (1968) 69 Cal.2d 17, 25; Maggio, Inc. v. Neal (1987) 196
Cal.App.3d 745, 753.) The agreement 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

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transactions. (California Milling Corp. v. White (1964) 229 Cal.App.2d 469, 477.) “The
key element in every context is agreement on the final balance due.” (Maggio, Inc.,
supra, 196 Cal.App.3d at p. 753.) The agreed-upon balance for an account stated need
not be in writing (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d
715, 726), unless, by its nature, it is governed by the statute of frauds. (See Civ. Code,
§ 1624.)
       The trial court concluded that the evidence did not support the elements of a cause
 of action for account stated. We agree. Nothing in the record suggests Paul and Patricia
 had agreed that the debt he owed her was the total value of the 113 checks and that this
 sum equaled $41,178.15. Indeed, William presented no evidence to establish the key
 element of an account stated, that Patricia and Paul had struck an agreement as to a final
 balance due. According to William, the only witness to testify about the disputed debt,
 his mother never mentioned either the checks or the debt before Paul died. Patricia’s
 expressed understanding or desire concerning the accumulated checks does not
 demonstrate that Paul knew he was indebted to Patricia for the lump sum of $41,178.15
 and was aware she was maintaining an account based upon the uncashed checks.
       William’s additional argument that an implied agreement between Paul and
 Patricia as to a final balance due can be inferred from their close relationship is purely
 speculative; he presented no evidence to support that theory. (See Wolf v. Walt Disney
 Pictures & Television (2008) 162 Cal.App.4th 1107, 1124 [judgment of nonsuit not
 reversed if plaintiff’s proof raises nothing more than mere speculation, suspicion or
 conjecture].)
       The trial court did not err. The evidence presented did not compel a finding in
 favor of William as a matter of law.




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                                      DISPOSITION

        The judgment is affirmed. Respondent is to recover his costs on appeal.




                                                ZELON, J.




    We concur:




        PERLUSS, P. J.




        BLUMENFELD, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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