Filed 6/5/15 Gordon & Rees v. Lopez CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                    DIVISION FIVE


GORDON & REES LLP,
         Plaintiff and Respondent,
                                                                     A140651
v.
STEVEN A. LOPEZ,                                                     (San Francisco City and County
                                                                     Super. Ct. No. CGC-12-517080)
         Defendant and Appellant.


         Gordon & Rees LLP (Gordon & Rees) sued Steven A. Lopez for unpaid legal fees.
The trial court granted Gordon & Rees’s motion for summary adjudication of causes of
action for an account stated and an open book account. After Gordon & Rees dismissed
its remaining causes of action, the court entered judgment and denied Lopez’s
postjudgment motions. We find the existence of triable issues of fact precluded summary
adjudication and reverse.1
                                               I.       BACKGROUND
A.       Gordon & Rees’s Representation of Lopez
         In September 2006, Gordon & Rees and Lopez entered into a written
“Engagement Agreement” retaining the firm to provide advice on partnership matters
relative to an art gallery, as well as other legal services that Lopez might request in
future. The Engagement Agreement provided, “Fees and expenses will be billed monthly
and are due upon receipt,” and included an arbitration provision.
         1
        Because we reverse the summary adjudication order as against Lopez, we need
not address his other claims of error.


                                                             1
       Gordon & Rees partner Andrew D. Castricone represented Lopez in a business
dispute involving the gallery. (Campbell v. Lopez (Super. Ct. S.F. City and County,
2008, No. CGC-07-463284 (Campbell).)2 The case was scheduled for trial on
January 22, 2008. In December 2007, Castricone sent Lopez a detailed report discussing
the status of the litigation, analyzing Lopez’s likelihood of success, projecting costs in the
range of $235,000–260,000 if the case went to trial, and recommending pretrial
resolution. The case settled on January 18, 2008. Among other terms, Lopez received a
$50,000 cash payment and transfer of ownership of a painting known as “Piano and
Man.” A dispute over the settlement terms arose. The Campbell plaintiffs filed a motion
to enforce the settlement agreement and called Castricone as a witness at a April 25, 2008
hearing on the motion. The court granted that motion, and judgment was entered for the
Campbell plaintiffs. Gordon & Rees withdrew as counsel on April 28, 2008, and Lopez
hired other counsel to pursue an appeal. Lopez subsequently accused Castricone of
professional negligence in connection with the litigation and settlement and of breach of
fiduciary duty.
B.     Communications Regarding Amounts Due to Gordon & Rees3
       Lopez averred that “[d]uring the course of representation there were irregularities
in the frequency of invoicing . . . . [T]he December 2006 invoice [was received] on
April 24, 2007, three months late with no explanation. No invoice was generated or
billed for August 2007. I continued to promptly pay all 2007 invoices sent to me; the last
       2
         Gordon & Rees also provided services to Eric Koehler and named him as a
codefendant in the complaint. Koehler was Lopez’s domestic partner and anticipated
business partner in the art gallery. Koehler and Lopez signed a conflict of interest waiver
but Koehler never signed the Engagement Agreement or any other fee agreement with
Gordon & Rees, and all invoices were in Lopez’s name only. The trial court denied
summary adjudication of the fee claims against Koehler, and Gordon & Rees apparently
later dismissed those claims. Judgment was entered against Lopez alone. Accordingly,
only Lopez is discussed in relation to the facts and issues raised on appeal.
       3
         Lopez averred that Koehler’s personal email address was used to correspond
with Castricone so that the communications would remain confidential from opposing
parties in the Campbell litigation. It is not disputed that electronic correspondence with
Castricone from that address was authored or acknowledged by Lopez.


                                              2
one was sent in November 2007 covering services performed through October 2007.” He
did not receive an invoice in December 2007 and, in response to Lopez’s inquiry about
the missing invoice, Castricone e-mailed a copy of the previously paid November 2007
invoice for $12,036.17 in fees and expenses billed through October 31, 2007. Even in the
absence of a December 2007 invoice, Lopez sent Gordon & Rees $12,000 toward fees
and expenses incurred in November 2007.
      On January 17, 2008 (the night prior to a mandatory settlement conference in the
Campbell litigation), Lopez e-mailed Castricone that December 2007 and January 2008
invoices had not been received for fees and expenses incurred in November or
December 2007. In an e-mail sent at 11:27 p.m., Castricone confirmed no invoice had
been sent in December and provided an estimate of the pending bills: “the next bill that
covers the November/December time period . . . is for approximately $73K. . . . [As yet
unbilled time] would translate to about $50K so far in January. If I am reading
everything correctly, this all means that with the new bill (November/December), the
total billed is about 140K. The unbilled (January + the brief time that was not previously
billed, which is likely less than $5K) is $50K, putting you at around $195K through
[January 17, 2008]. [¶] I’m going to send another email discussing numbers shortly in
preparation for tomorrow, and will use $200K as the number for fees to (1) make math
easier, and (2) include tomorrow’s time too.” Lopez averred that he did not see this e-
mail prior to the settlement conference. Subsequent Gordon & Rees billings were as
follows:
      – An invoice dated January 18, 2008, reflected the $12,036.17 payment of the
November 2007 invoice, and billed $72,555.30 for fees (dating Nov. 1–Dec. 31, 2007)
and expenses (dating Oct. 25 & Nov. 6–21, 2007). Lopez averred that he first received
an e-mail copy of this invoice in February 2008 and a printed version in April 2008.
      – An invoice dated February 14, 2008, reflected payments received from Lopez in
the amount of $52,000 (apparently comprised of the prior $12,000 payment and $40,000
from Campbell settlement proceeds), leaving a remaining balance of $20,555.30 from the
January 18 invoice. $87,340.88 was billed for fees (dating Dec. 7–21, 2007, & Jan. 1–31,


                                            3
2008) and expenses (dating Nov. 19–Dec. 31, 2007, & Jan. 7, 2008) for a total balance
due of $107,896.18. Lopez claimed he first received a copy of this invoice on April 15,
2008.
        – An invoice dated March 11, 2008, billed $6,901.08 for fees dating February 1–
26, 2008, and expenses dating June 14 and December 17–28, 2007, and January 2–
February 28, 2008. The invoice indicated that the full balance of the February 14 invoice
remained unpaid and the new balance due was $114,797.26.
        – An invoice dated April 7, 2008, billed $799.88 for fees dating March 4–22,
2008, and expenses dating January 21–March 11, 2008. The full balance of the March 11
invoice remained unpaid and a new balance due of $115,597.14 was indicated. Lopez
acknowledged receiving the April 7 invoice in April 2008.
        On April 15, 2008, Castricone wrote by e-mail, under the subject line, “Fw: 75 day
Notice”: “Attached please find our outstanding invoices per [Lopez’s] request. While it
need not be paid in one chunk, we do need a substantial payment now and the balance in
or very near full by 5/31.” He sent a similar e-mail on May 1, 2008, and offered a
discount if the balance was paid in full by May 31.
        On May 7, 2008, Lopez wrote, “Had [I] received the invoices in a more timely
manner, I don’t think we’d be in this ’75 day Notice’ situation. [¶] You mention
‘discounting the a/r if payment is made in full by May 31’ in your message. What is the
net amount due after the discount? [¶] In reviewing the invoices for January and
February, [I] noticed 16 hours of your December time on the January invoice. Why is
that? . . . [¶] [I am] also asking again, for the 4th time, for a time line of the trial
preparation from May, 2007, through January, 2008. When were notices sent and
discovery documents filed? Was there a timely service and follow-up to our discovery
requests [in the Campbell litigation]? . . . It’s not clear, from reviewing the invoices,
when our discovery requests were filed and when (or if) they were answered.”
        On May 7, 2008, Castricone responded to Lopez, “As for the total amount, I do
not understand the ‘shock’ as the amount tracks pretty closely with the estimated budgets
we provided earlier and again in November and December. [¶] As for the timeline, we


                                                4
can get that to you. . . . You will recall our discussion that [a party to the Campbell
litigation] did not respond since he was dismissed before responses were due. [¶] As for
the discount, we are presently authorized to accept $100K in fees (approximately $12K
discount) + costs.”
       A May 8, 2008 invoice charged $805.25 for April fees and expenses and indicated
the full balance of the April bill remained unpaid. The new balance was $116,402.39.
       On May 16, 2008, Castricone wrote to Lopez, “I received [your] voice message
regarding the status of the ‘calendar’ and payment of the outstanding invoices. We
appreciate the fact that you are sending in the $5,000. . . . Have you considered settling
[sic] the Piano and Man piece you offered to resolve the outstanding balance? [¶] . . .
[¶] As for the calendar, . . . I am not sure if you are under the impression that such a
calendar already exists, which it does not. Contrary to [your] assertion that it has not
been sent yet because of something to hide, that is far from the case, and I believe you
will concur that we were very candid with you about the case, the merits, the evidence,
the cost of going forward, and issues regarding resolution. Rather, the problem is that it
will have to be created manually, which will take a bit of time. I will likely have to
prepare it myself . . . .”
       Later the same day Lopez replied, “[I am] mailing a check for $5,000 today and
will continue to make $5,000 monthly payments (more if possible) until the balance is
paid off. Piano and Man is for sale and the offer is still open to Gordon and Rees to
accept it as payment-in-full for [the] remaining balance. [¶] [W]hen [I] talked to [a
Gordon & Rees paralegal] about getting the calendar . . . [she] said she had hand-written
notes about [the] case and filing and due dates . . . . [¶] In [the paralegal’s] entries on the
G&R invoice for December, there are details, for example: [¶] . . . [¶] 12/19/07 Prepare
calendar reflecting discovery, trial preparations [¶] 12/27/07 . . . Update case calendar . . .
[¶] . . . [¶] It seems to [me] that the documentation [I am] looking for should already exist
and may just need to be assembled.”
       In June and July 2008, Castricone and Lopez exchanged increasingly hostile e-
mails regarding production of the timeline and the quality of Castricone’s representation.


                                               5
Lopez expressly asked Castricone to “[p]lease confirm that no deadlines were missed, all
services proper and timely, etc.,” and stated “future payments are contingent on receiving
the work-product for which [I was] invoiced!” In a September e-mail, Castricone
defended the terms of the Campbell settlement and the decision not to pursue claims
against a certain individual, and he urged Lopez to resume payment. Castricone also
represented that he had spent more than 20 hours of unbilled time to assemble a
forthcoming 23-page timeline of the litigation. Castricone sent the timeline in October,
which included summaries of his communications with Lopez and the rationale behind
certain strategic decisions made during the Campbell litigation. Lopez promptly
responded that the timeline did not include the information he was looking for and
renewed his request for additional information. Castricone sent Lopez computer
printouts of a case calendar and indices of pleadings filed and discovery exchanged
during the Campbell litigation, and wrote that upon receipt of the information payment in
full was expected.
       Lopez responded in a November 10, 2008 e-mail that he needed time to reconcile
the recently-produced information with his records “and gather [my] questions for you.”
Lopez reiterated that he would not make monthly payments while he worked on the
reconciliation, but renewed his offer of the Piano and Man painting. Castricone
responded by rejecting the offer of the painting but inviting offers of other art works to
cover the balance. In a November 18 e-mail to Castricone, Lopez alleged the Campbell
settlement amounted to a loss of that case and Castricone had concealed the high legal
fees Lopez was incurring at the time of the settlement. Lopez suggested he might seek
arbitration of the fee dispute and warned, “[I]t could turn out that your charges are
considered excessive.” Lopez reiterated that he needed time to reconcile the recently-
produced information with his files, implied no additional payments would be made in
the near future, and renewed his offer of the Piano and Man painting.
       On January 2, 2009, Lopez wrote to Castricone by e-mail: “[I] find it extremely
unprofessional that no one from the firm has contacted [me] in response to the
[November 18, 2008 e-mail] nor to [my] follow-up phone call to you. [¶] Please note, [I]


                                              6
wish to arbitrate Gordon & Rees invoicing and . . . rescind the offer to exchange Piano
and Man.” On February 28, Lopez sent Castricone a letter demanding arbitration. On
March 12, 2009, counsel for Gordon & Rees sent Lopez a “final demand for payment” of
a $111,402.39 balance.
C.     The Instant Lawsuit
       On January 6, 2012, Gordon & Rees sued Lopez for the $111,402.39 amount it
had alleged to be due. Lopez represented himself in the action and continues to represent
himself on appeal. In an October 2012 amended complaint, the firm alleged causes of
action for breach of contract, account stated, open book account, and negligent
misrepresentation. In May 2013, Gordon & Rees moved for summary adjudication of the
account stated and open book account claims, claiming Lopez owed $110,158.53. The
trial court granted the motion, ruling that the undisputed evidence established Lopez
“assented to the $110,158.53 amount owed, and promised to pay the amount.” Gordon &
Rees dismissed the remaining claims and requested judgment be entered on the prior
summary adjudication of the account stated and open book claims against Lopez. On
September 18, 2013, the court entered judgment for Gordon & Rees against Lopez for
$110,158.53 plus interest. Lopez’s motions for reconsideration, vacating the judgment
and new trial were all denied.
                                     II.     DISCUSSION
       Summary adjudication of a claim is appropriate “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The party moving
for summary [adjudication] bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of law. . . . There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850, fns. omitted.) “[I]f a plaintiff who would bear the burden of proof by a
preponderance of evidence at trial moves for summary judgment, he must present


                                               7
evidence that would require a reasonable trier of fact to find any underlying material fact
more likely than not . . . .” (Id. at p. 851.) In ruling on the motion, the trial court must
draw all reasonable inferences from the evidence in the light most favorable to the
opposing party, and an order granting summary adjudication is reviewed de novo. (Id. at
pp. 843, 860.)
A.      Account Stated
        To prevail on a claim for 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.” (H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling
Corp. (1979) 99 Cal.App.3d 711, 726; see also Gleason v. Klamer (1980)
103 Cal.App.3d 782, 786 [“[a]n 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”]; 1 Witkin, Summary of Cal.
Law (10th ed. 2005) Contracts, § 972, pp. 1062–1063.) “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, at pp. 786–787.)
“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.) “The key element in every context is
agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745,
753.)
        Gordon & Rees’s separate statement of undisputed material facts in support of its
motion for summary adjudication premised its account stated cause of action on the


                                               8
following: “1. There were transactions between [Gordon & Rees] and [Lopez]
establishing the relationship of [Lopez] as debtor and [Gordon & Rees] as creditor”;
“2. There was an agreement between the parties on the amount due from the debtor
[Lopez] to the creditor [Gordon & Rees]”; “3. There was a promise by the debtor,
[Lopez], to pay the amount due”; and “4. The principal sum [Lopez] owes [Gordon &
Rees] on the account is $110,158.53.” Lopez does not seriously dispute allegations that
he had a debtor relationship with Gordon & Rees as creditor. He does, however, dispute
that the parties reached an agreement on the amount due, that he agreed to pay a fixed
amount due, and that the amount due was $110,158.53.
       As evidence of an agreed amount due, and Lopez’s agreement to pay that amount,
Gordon & Rees relies on its invoices, Lopez’s May 16, November 10 and November 18,
2008 e-mails, and excerpts from Lopez’s deposition testimony. In deposition, Lopez
acknowledged that he received the April 7 and May 8 invoices in April and May 2008
respectively and that he made a $5,000 payment in May. Lopez initially answered “yes”
to the question, “Did you ever make any payments on the invoice?” and added that he
made the $5,000 payment, but he then clarified, “I can’t say that it was toward any
specific invoice. [I] just made a payment.” When asked, “But it was a payment towards
the amount Gordon & Rees said was owing?” he said “yes.” Referencing the e-mails,
Lopez acknowledged that he offered Gordon & Rees the Piano and Man painting and
answered “yes” to the following questions: “[T]hat [offer] was to trade a painting in
exchange for satisfying the amount due, they said was due?”; “[The Piano and Man
painting] is the artwork that you were offering to pay off the balance?”; “[Y]ou were . . .
offering to provide that painting in exchange for paying off the balance?”; and “In [the
November 18] email are you asking Gordon & Rees to reconsider whether or not it
should accept the ‘Piano and Man’ painting as payment of the balance?” In reference to
the November 10 e-mail, Lopez was asked if he took the position at that time that he had
no obligation to make payments to Gordon & Rees until the firm produced the timeline
he had requested. He said he did not.



                                             9
       As evidence that no specific amount due had been agreed upon, Lopez cited his
May 7 and 16, 2008 e-mails, Castricone’s May 16 e-mail, and Lopez’s declaration in
support of his opposition to the summary adjudication motion. In the declaration, Lopez
discussed his requests for a case calendar (“work product that pertained to items in the
invoices and for which I was billed”) and stated, “[M]y offer to pay $5,000 a month was
conditioned on [Gordon & Rees] supplying the work product documents and assurances
that deadline[s] were not missed.” Lopez also averred that when he paid $5,000 in
May 2008, “[t]his [wa]s the one, single instance in which . . . I advised [that I] would
attempt to continue making such monthly payments. Shortly thereafter I rescinded the
offer because [Castricone] was less than forthcoming in supplying answers to my
questions.”
       Citing Gordon & Rees’s evidence, the trial court ruled, “[Gordon & Rees] . . .
produces several e-mails that [Lopez] assented to the $110,158.53 amount owed, and
promised to pay the amount. [Citations.] The burden then shifts to Defendant Lopez to
demonstrate that a triable issue of material fact exits. Defendant Lopez failed to produce
admissible evidence showing that he did not assent to the amount owed on the invoice.”
       We consider separately whether the communications in May and November 2008
established an account stated as a matter of law.
       1.     Discrepancy in Balance Due
       As a preliminary matter, we note a discrepancy between the alleged balance due as
stated in the May 2008 invoice (as adjusted by Lopez’s $5,000 payment in May) and the
complaint on the one hand ($111,402.39), and the amount stated in the motion for
summary adjudication, the trial court’s order granting the motion and the judgment
($110,158.53) on the other. The discrepancy raises an obvious question about whether
the parties ever agreed on an amount certain due. “It is elementary law that a claim must
be reduced to a definite amount by agreement between the parties before it can form a
legitimate portion of an account stated.” (H. Russell Taylor’s Fire Prevention Service,
Inc. v. Coca Cola Bottling Corp., supra, 99 Cal.App.3d at p. 727.) However, we do not
rely on the discrepancy alone in reversing the trial court’s order.


                                             10
       2.     May 2008 Communications
       We agree the evidence shows Lopez acknowledged that he owed Gordon & Rees
something. But we find Lopez’s May 16, 2008 e-mail was insufficient to establish an
account stated with an agreed balance because it was ambiguous both in its plain
language and when read in context.
       Lopez wrote in the May 16, 2008 e-mail, “[I am] mailing a check for $5,000 today
and will continue to make $5,000 monthly payments (more if possible) until the balance
is paid off.” Gordon & Rees imply that “the balance” unambiguously refers to the
balance set forth on the latest invoice Lopez had received (i.e., the $116,402.39 balance
on the May 8 invoice), and that the statement was a promise to pay the full invoiced
amount. However, Lopez’s May 16 e-mail, taken in its entirety, reflected continuing
concerns initially raised in his May 7 e-mail as to the necessity of work performed in
December and whether work previously billed, particularly for discovery, had actually
been performed. Lopez wrote on May 7 that when he received the April 7 invoice (for
hours through March 31) he was “shocked to see an outstanding balance due of
$115,597.14!” Lopez also expressly questioned certain hours included in the January and
February invoices, and asked “for the 4th time for a time line of the trial preparation from
May, 2007, through January, 2008.” In the May 16 e-mail, Lopez continued to pursue
documentation of work billed by Gordon & Rees.
       A reasonable factfinder could infer from these communications that Lopez’s
concerns about Castricone’s performance and the reasonableness of amounts billed had
not been resolved, and that Lopez’s $5,000 payment and offer of future payments did not
express agreement with the total balance due as stated in the May 8, 2008 invoice.
Rather, the payment and offer of future payments reasonably could be construed as an
acknowledgment that a balance was due—the exact amount of which to be determined




                                            11
once invoice disputes were resolved. Lopez had, in fact, previously made payments to
Gordon & Rees in anticipation of fees and costs not yet quantified or substantiated.4
       The parties’ May communications, therefore, raise at least a triable issue of fact as
to whether Lopez agreed to pay the full amount of the May 8, 2008 invoice. Authority
cited by the trial court and Gordon & Rees do not convince us otherwise. (Gleason v.
Klamer, supra, 103 Cal.App.3d at pp. 785–786, 789–790 [client acknowledged in
writing, “[the itemized billing statements] are in order, and I hereby acknowledge for
payment by me as billed”]; Truestone, Inc. v. Simi West Industrial Park II (1984)
163 Cal.App.3d 715, 719–720, 725–726 [debtor’s letter to creditor “acknowledge[d] that
Truestone is a creditor for $17,898” and proposed a payment plan]; Zinn v. Fred R.
Bright Co., supra, 271 Cal.App.2d 597, 599–602 [review of a trial court finding of fact
for substantial evidence rather than a grant of summary adjudication].)
       3.     November 2008 Communications
       The November 2008 communications even more clearly evidence a dispute
between the parties as to the amount owed. Between June and November, Castricone and
Lopez exchanged increasingly confrontational e-mails regarding production of the
timeline and Castricone’s quality of representation. Lopez expressly asked Castricone to
“[p]lease confirm that no deadlines were missed, all services proper and timely, etc.,” and
Lopez stopped making the promised monthly payments pending receipt of the timeline.
Lopez’s November 18 e-mail to Castricone, which included a renewed offer of the Piano
and Man painting, alleged the Campbell settlement amounted to a loss of that case;
alleged Castricone had concealed the high legal fees Lopez was incurring at the time of


       4
         Gordon & Rees suggests that Lopez’s offer of the Piano and Man painting “as
payment-in-full for [the] remaining balance” amounted to an admission that he owed at
least the outstanding $111,402.39 invoice amount because Lopez claimed the painting’s
value was about $200,000. However, the value of the painting was disputed. Gordon &
Rees twice concluded the painting would not cover the balance it claimed was due, and
Lopez himself stated that he did not believe the painting could be sold for its full value in
the then-current market. As noted post, Lopez’s offer of the painting reasonably could be
construed as an offer of compromise, not an admission that any sum certain was due.


                                             12
settlement; suggested that Lopez might seek arbitration of the fee dispute and warned,
“[I]t could turn out that your charges are considered excessive”; reiterated that Lopez
needed time to reconcile the recently-produced information with his files; and implied no
additional payments would be made in the near future. This record easily supports an
inference that the amount due from Lopez to Gordon & Rees remained in dispute as of
November 2008, and that the November 18, 2008 offer of the painting was an offer of
compromise, not an acknowledgement of the balance due on the most recent invoice.
       In sum, triable issues of fact exist about whether Lopez’s November 2008
communications created an account stated that Lopez owed Gordon & Rees an agreed
amount of $111,402.39.
B.     Open Book Account
       An open book account is “a detailed statement which constitutes the principal
record of one or more transactions between a debtor and a creditor arising out of a
contract or some fiduciary relation, and shows the debits and credits in connection
therewith, and against whom and in favor of whom entries are made, is entered in the
regular course of business as conducted by such creditor or fiduciary, and is kept in a
reasonably permanent form and manner . . . .” (Code Civ. Proc., § 337a.) A book
account can be established by a course of dealing between the parties. (See Warda v.
Schmidt (1956) 146 Cal.App.2d 234, 237.) “[T]he chief distinguishing characteristic
differentiating a stated account from an open, current account” is that an “open account
does not necessarily arise from the agreement of the parties.” (Mercantile Trust Co. v.
Doe (1914) 26 Cal.App. 246, 254.) “A book account may furnish the basis for an action
on a common count ‘ “ . . . when it contains a statement of the debits and credits of the
transactions involved completely enough to supply evidence from which it can be
reasonably determined what amount is due to the claimant.” ’ [Citations.] A book
account is described as ‘open’ when the debtor has made some payment on the account,
leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co.
(1985) 174 Cal.App.3d 700, 708.)



                                            13
          Gordon & Rees established the existence of an open book account between the
firm and Lopez, as reflected in its invoices. Nevertheless, the accuracy of an alleged
open book account is a question of fact, and a defendant is entitled to “attack each of the
entries ‘to show that the plaintiff has no right to recover or to recover to the extent that he
claims.’ ” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co., supra,
174 Cal.App.3d at p. 708; id. at p. 704.) The firm’s own evidence demonstrates that
Lopez disputed the accuracy of at least some of the invoice entries, and Lopez produced
additional evidence in opposition to the motion that draws into question the accuracy of
the account, i.e., the reasonableness of charged fees. Thus, triable issues of fact were
presented as to Gordon & Rees’s right to recover the full amount set forth in its open
book account, and the court erred in granting summary adjudication of this cause of
action.
C.        Lopez’s Violation of Court Rules
          Although we grant Lopez relief in this appeal, we do not ignore his violation of
procedural rules here and in the trial court. In the trial court, Lopez exceeded the page
limits on his papers opposing summary adjudication, and the trial court refused to
consider some of his arguments as a result. On appeal, Lopez filed an opening brief
barely under the word limit; his briefs included excessive repetition; he failed to cabin his
arguments to the appropriate sections of his briefs; and his section headings had little
relation to where discussion of the issues might be found. (Cal. Rules of Court, rule
8.204.) Lopez’s combined briefs were more than twice as long as the respondent’s brief
and imposed twice the burden in sorting out his legal arguments.
          Pro se litigants are not entitled to special treatment and are required to follow court
rules. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522–523.) This court may
impose sanctions on a party or an attorney for “[c]ommitting any . . . unreasonable
violation of these rules.” (Cal. Rules of Court, rule 8.276(a)(4).) While we decline to
impose sanctions at this time, we admonish Lopez that we may take a harsher view if
confronted with similar conduct in any further proceedings before this court.



                                                14
                                   III.   DISPOSITION
       The order granting summary adjudication as to Gordon & Rees’s account stated
and open book claims against Lopez and the September 18, 2013 judgment are reversed.
The case is remanded to the trial court for further proceedings consistent with the views
expressed in this opinion. Gordon & Rees shall bear Lopez’s costs on appeal.




                                                 _________________________
                                                 BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




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