Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC444876, Edward D. Webster, Judge.
La Quinta Law Group and Timothy L. Ewanyshyn for Defendant and Appellant.
Law Offices of Hemar Rousso & Heald and Jeannine E. Del Monte for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Carlos Cisneros appeals after the trial court granted summary judgment in favor of plaintiff and respondent The Cadle Company II, Inc. (Cadle). Cadle had sued for breach of promissory note, money lent, an account stated, and unjust enrichment. Defendant contends the motion for summary judgment was fatally defective and should not have been considered by the trial court. Defendant failed, however, to raise any of these points below. We affirm.
FACTS AND PROCEDURAL HISTORY
In 1995, defendant borrowed $35,000 from Classic Financial Corporation (Classic). Defendant executed a promissory note, which was secured by a deed of trust against real property. Cadle is the successor in interest to Classic on the promissory note.
Defendant defaulted on the note in 1996. A senior lienor foreclosed on the real property; the promissory note was therefore no longer secured.
Cadle filed its action in 2006. Defendant filed an answer in April 2006; the answer did not plead any affirmative defenses. Through discovery, defendant essentially admitted all the material facts in the complaint.
Cadle filed a motion for summary judgment in October 2006. Defendant filed no opposition to the motion. At the motion hearing, defendant’s counsel agreed with Cadle’s proposed judgment. The trial court found no triable issues of material fact and granted the motion for summary judgment. A final judgment issued in April 2007.
ANALYSIS
I. Summary Judgment Standard of Review
In reviewing the propriety of an order granting summary judgment, we “apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party’s showing has established facts which justify a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)
II. Step One—Issues Framed by the Pleadings
The complaint alleged four causes of action, each representing a different theory of pleading as to the same transaction: defendant’s borrowing of the money from Classic and signing the note agreeing to pay therefor.
The cause of action for breach of the contract (i.e., the note) required proof of the elements: (1) the existence of a contract (the promissory note) to which Cadle was the successor in interest, including defendant’s promise to pay on the note; (2) performance by the plaintiff (or excuse for nonperformance); (3) breach of the defendant’s promise to pay; and (4) damage from the breach. (See, e.g., McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) It may be pleaded by including a copy of the note. (Ibid.)
The second cause of action, a common count for money lent, alleged indebtedness by defendant for the specific sum of money lent, and failure to repay any part of the loan. (Cf. Moya v. Northrup (1970) 10 Cal.App.3d 276, 280.)
The cause of action for an account stated alleged that defendant had become indebted to Cadle on an account stated, and that defendant had failed to pay the sum due. (See Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786.)
The fourth cause of action, for unjust enrichment, alleged that defendant had received benefits (money) at the lender’s expense, which it would be unjust for defendant to retain. (Cf. First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662.)
Each cause of action relied upon the essence of the same transaction: Cadle’s predecessor had lent money to defendant on defendant’s promise to pay or by some other means, as to which defendant was obligated to repay the funds, but that defendant had failed to do so.
Defendant filed an answer to Cadle’s complaint. The answer set forth no affirmative defenses.
III. Step Two—Cadle’s Moving Papers Showed Entitlement to a Judgment in Its Favor
Cadle’s separate statement of undisputed facts showed that defendant executed the promissory note on March 6, 1995. Defendant, by his responses to requests for admission, admitted that he had received $35,000 pursuant to the terms of the agreement, and that he had not paid all of the obligation due under the note.
Defendant denied, based on “lack of information,” whether he had failed to make any payments on and after August 7, 1996, that he was in default on the loan, that he was indebted to Cadle, or that he had no defense to the action.
A declaration of Cadle’s account officer, however, averred that defendant was in default under the promissory note, inasmuch as defendant had failed to pay the installment due on August 7, 1996, or any payments thereafter. The note was originally secured by a deed of trust on real property, but a senior lienor foreclosed, leaving the promissory note unsecured.
As the trial court noted at the hearing on the motion for summary judgment, there were no triable issues of fact on the matters tendered by the pleadings, as defendant had admitted the debt.
Cadle’s showing in support of the motion for summary judgment was sufficient to entitle it to judgment in its favor.
IV. Step Three—Defendant Did Not Demonstrate the Existence of a Triable Issue of Material Fact
Defendant did not file any papers in opposition to Cadle’s motion for summary judgment. When defendant’s counsel appeared at the hearing, he agreed that the judgment should be entered as requested. Defendant made no showing below to raise a triable issue of material fact as to any of the causes of action stated in the complaint.
On appeal, defendant presses several arguments that the motion for summary judgment was invalid on its face for procedural and other defects.
Citing Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478, defendant urges, for example, that the motion for summary judgment was improper on its face, for failure to state specifically the causes of action to which it applied. Sequoia is inapposite. The court there noted that, in 1990, the summary adjudication provisions of the summary judgment statute were amended to eliminate the summary adjudication procedure for facts or issues which do not completely dispose of an entire cause of action. When the summary adjudication of issues procedure is invoked, therefore, “a listing of the disputed causes of action, as was done here, is sufficient.” (Ibid.)
Here, Cadle’s motion for summary judgment did not invoke the summary adjudication of issues procedure. Patently, the request for summary judgment applied to all of the causes of action stated in the complaint. The notice of motion recited that it was made “on the ground that no material issues of fact exist as to each Cause of Action in the Complaint. . . .” (Italics added.) Nothing more was required.
Defendant raises a similar complaint that the movant’s separate statement of undisputed facts did not separately identify the undisputed matters to each individual cause of action in the complaint. Defendant urges that Code of Civil Procedure “section 437c is unforgiving,” and argues that “a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607.)
Again, the cited authority is unavailing to defendant. In Brantley, the undisputed facts did not completely disprove a possible cause of action by which the landlord could have been liable for the tenant’s injuries. (Brantley v. Pisaro, supra, 42 Cal.App.4th 1591, 1606.) Here, by contrast, Cadle’s showing, even if not separately restated as to each individual cause of action, showed that: (1) contract: defendant had executed the contract, defendant had received the benefit under the contract, defendant had breached the contract, and Cadle had been damaged; (2) money lent: defendant admitted accepting the loan proceeds, and the evidence undisputedly showed a failure to repay; (3) account stated: defendant had received the funds and had failed to pay regular installments due on the account; (4) unjust enrichment: defendant had received the lent funds and had not repaid them. Nothing would be gained by requiring the identical facts to be restated in various ways. The law does not require idle acts. (Civ. Code, § 3532.) The facts set forth in the separate statement of undisputed facts were sufficient to prove the separate elements as to each of the pleaded causes of action.
Defendant further argues that the motion for summary judgment was improperly granted because the moving papers on their face demonstrated the existence of a valid statute of limitations defense to each of the causes of action. We disagree. The statute of limitations provides a defendant with an affirmative defense, but such a defense may be waived by the failure to assert it. (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 273, fn. 3.)
Defendant raised the statute of limitations defense neither in his answer nor in any opposition to the motion for summary judgment. He forfeited the right to raise the issue for the first time on appeal. (Getz v. Wallace (1965) 236 Cal.App.2d 212, 213.)
As defendant failed to raise any matter to demonstrate a triable issue of fact, he failed to overcome Cadle’s showing on the motion that it was entitled to judgment in its favor.
DISPOSITION
The judgment is affirmed.
Respondent is awarded its costs on appeal.
We concur HOLLENHORST, Acting P. J., RICHLI, J.