American Express Travel v. Fulton
Filed 6/29/06 American Express Travel v. Fulton CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| AMERICAN EXPRESS TRAVEL RELATED SERVICES, INC., Plaintiff and Respondent, v. JAMES FULTON, Defendant and Appellant. | G035856 (Super. Ct. No. 04CC04262) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Reversed.
Martin & McCormick, John D. Martin and Kathy J. McCormick for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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Defendant James Fulton challenges a judgment entered against him for $174,950.28, representing unpaid credit card charges owed to plaintiff American Express Travel Related Services, Inc. (AMEX). Fulton contends the trial court erred in admitting the testimony of AMEX's credit manager regarding the amount of money Fulton allegedly owed. Fulton asserts the manager lacked personal knowledge, was not qualified as AMEX's custodian of records, and gave inadmissible hearsay testimony.
We agree the trial court erred in admitting the challenged testimony because it lacked the most basic foundation and consisted mostly of inadmissible hearsay. Accordingly, we reverse.
I
Background
AMEX sued Fulton for charges he allegedly incurred on a credit card account from 2001 to 2004. AMEX's complaint sought payment under the common counts of (1) open book account, (2) account stated, and (3) money paid, laid out and expended. Fulton filed an answer generally denying the complaint, alleging as his only affirmative defense AMEX's failure to state a cause of action.
AMEX called Ira Axelrod, a manager in its credit operations department, as its sole witness at trial. Axelrod had worked for AMEX for almost 25 years, managed 50 people in AMEX's collections department, and oversaw its legal department. Axelrod testified he had access to AMEX's books and records pertaining to cardholder accounts, including Fulton's. During Axelrod's testimony, AMEX's attorney marked for identification one exhibit, which the attorney represented were AMEX billing statements from 2001 through February of 2004. Axelrod never identified the billing records, and AMEX failed to move the records into evidence.
Over the objections of Fulton's counsel, Axelrod testified AMEX's records showed AMEX closed Fulton's existing credit account for nonpayment. Axelrod testified the billing records marked at trial reflected an outstanding balance of $182,195.28, but that AMEX's company records showed Fulton's actual current balance was $174,950.28. On cross-examination, Axelrod testified he knew the $174,950.20 amount was correct because he saw it on his computer. Axelrod testified he did not personally input the figure into his computer, and other than seeing the number on his computer screen, he had no personal knowledge of the amount Fulton owed. AMEX offered no testimony regarding the origin of the $174,950.20 figure displayed on Axelrod's computer screen, what AMEX records formed the basis for Axelrod's testimony, or how such records were generated or maintained. Fulton presented no evidence at trial.
The court entered judgment against Fulton in the amount of $174,950.28. Fulton now appeals.
II
Discussion
Fulton contends the trial court erred in admitting much of Axelrod's testimony because, among other reasons, his testimony lacked foundation and consisted of inadmissible hearsay. We agree.
