Filed 5/14/18 ReadyCap Lending v. By Faith Productions CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE


READYCAP LENDING, LLC,
Plaintiff and Respondent,
v.
BY FAITH PRODUCTIONS, INC.,
Defendant and Appellant.

A146609

(Solano County
Super. Ct. No. FCS042624)


Defendant By Faith Productions, Inc. (BFP) appeals from an adverse summary judgment holding it liable for payment on a promissory note for which it became obligated under an agreement assuming the obligations of the party from whom it purchased a business. None of BFP’s challenges to the summary judgment have merit and we shall therefore affirm the judgment against it.
Background
On December 31, 2002, Sultan & Sultan, Inc. (Sultan) executed a promissory note in the principal amount of $500,000 to CIT Small Business Lending Corporation (CIT), the proceeds of which were to be used in connection with Sultan’s business, Macao Auto and Body Paint. On February 23, 2007, in connection with BFP’s purchase of Sultan’s business and acquisition of its assets, BFP entered an “Assumption and Modification Agreement” with CIT (the agreement) under which BFP assumed Sultan’s obligations under the promissory note, CIT released Sultan and its principals from their obligations, and Vincent McAllister, BFP’s president, guaranteed BFP’s obligations. The agreement states that the balance due under the promissory note was then $365,903.56 and revises the payment schedule and monthly payments due under the note.
In November 2013, CIT filed the present action against BFP for non-payment on the promissory note. In June 2014, CIT assigned its interest in the note to plaintiff ReadyCap Lending LLC (ReadyCap) and ReadyCap was subsequently substituted as plaintiff in the action. Following discovery, plaintiff moved for summary judgment which, after the filing of opposition, the court granted. Subsequently the court granted plaintiff’s motion for attorney fees and costs. The trial court entered an amended judgment in favor of plaintiff in the total amount of $447,231.53, consisting of principal, interest, attorney fees and costs. BFP timely filed a notice of appeal from the original judgment entered prior to granting the motion for attorney fees and costs.
Discussion
In the declaration of Vincent McAllister submitted in opposition to plaintiff’s summary judgment motion, McAllister acknowledged that as part of an asset acquisition from Sultan, he did sign the assumption agreement. Further, he stated: “I did engage and eventually acquired assets from Sultan & Sultan, Inc. It was an asset acquisition because the corporation was suffering from severe losses in operating the business. I did take over Sultan & Sultan, Inc.’s physical space and acquired some of that equipment.” Nonetheless, he contended “there was no assumption agreement” for sundry reasons: CIT never returned the signed assumption agreement, which was undisputed; CIT did not provide disclosures in compliance with the Truth in Lending Act (TILA), 15 United States Code section 1603, subdivision (1), which was undisputed; “CIT never provided the necessary information regarding how to repay any sum under the agreement,” which was disputed only to the extent of the notice and information contained in the agreement that McAllister admittedly signed; “McAllister contacted CIT about repayment of the note but no response was ever received,” which was undisputed; and “When McAllister lost the real property which were the security for the agreement, CIT never contacted McAllister,” which also was undisputed. BFP did not dispute that it had made no payments on the promissory note but argued that because the complaint was not filed until more than six years after entry of the assumption agreement, plaintiff’s claim is barred by the four-year statute of limitations. Finally, in the trial court BFP also argued that the assumption agreement is unconscionable.
Neither the moving nor opposing summary judgment papers provide any specificity concerning communications between the parties or the circumstances surrounding the apparent demise of the business that BFP purchased from Sultan. The record does not provide any details concerning BFP’s loss of the property or the business, but oblique references indicate that McAllister “filed bankruptcy in 2010” and “the bank” repossessed some secured assets. Following execution of the assumption agreement there appear to have been no communications between BFP and CIT, other than BFP’s asserted inquiries to which it received no responses, until BFP received a demand letter from CIT’s attorney in October 2013, some six years after the agreement was signed. In seeking summary judgment plaintiff relied simply on the acknowledged fact that McAllister signed the assumption agreement on behalf of BFP and BFP made no payments on the promissory note assumed under the agreement. Plaintiff contended that the facts on which BFP relies are irrelevant and do not eliminate its liability for nonpayment and breach of the promissory note. The trial court agreed, as do we.
The apparent fact that CIT did not return a copy of the assumption agreement bearing the signatures of all parties does not negate the fact, established without controversy, that all parties, including BFP, did execute the agreement. “It is well established that the receipt and acceptance by one party of a writing signed by the other only, and purporting to embody all the terms of a contract between the two, binds the acceptor as well as the signer, to the terms of the writing.” (Bernard v. Walkup (1969) 272 Cal.App.2d 595, 602, italics added.) McAulay v. Jones (1952) 110 Cal.App.2d 302, on which BFP heavily relies, provides no support for its contrary contention. Not only do the facts in that case not suggest that failure to return a fully signed agreement negates formation of the contract, but the case also holds that a party may be estopped to deny formation of a contract by acceptance of its benefits. Here, McAllister’s acknowledgement that he acquired assets from Sultan and took over its physical space provides a second basis for holding that the terms of the assumption agreement necessarily became effective.
The fact that BFP was not provided disclosures specified in TILA is inconsequential since, among other things, TILA has no application to commercial transactions such as was involved here. (15 U.S.C. § 1603(1).)
BFP argues that CIT’s failure to respond to its inquiries or to contact it for more than six years creates a triable issue on affirmative defenses of waiver and estoppel. However, the burden was on BFP to proffer evidence creating a triable issue on an affirmative defense (Code Civ. Proc., § 437c, subd. (p)). Other than the absence of any communications, BFP presented no facts in opposition to the summary judgment motion that could possibly support either defense. CIT’s mere silence is insufficient to establish the elements of either a waiver or an estoppel. Absolutely no evidence was proffered to show that CIT or ReadyCap intentionally relinquished the right to enforce the promissory note, or that CIT’s silence—especially with a bankruptcy stay apparently in effect for some portion of the period—was inconsistent with enforcement of its rights or should reasonably have caused BFP to believe it had relinquished its rights. (See Crest Catering Co. v. Superior Court (1965) 62 Cal.2d 274, 278.) And however the elements of an estoppel are articulated (compare City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 486-488 with Nicolopulos v. Superior Court (2003) 106 Cal.App.4th 304, 311), no evidence was presented that would support the defense. Among other missing elements, BFP proffered no evidence that CIT’s silence caused it to suffer harm or to change its position in any respect. BFP implies that CIT’s failure to provide “the necessary information regarding how to repay any sum under the agreement” somehow establishes one of these defenses. However, although neither the assumption agreement nor the incorporated promissory note specifies an address to which payments should be sent, the agreement does specify an address to which notices to CIT should be directed. And BFP’s return of the agreement signed by McAllister to CIT, as well as its claimed inquiries to CIT, certainly indicate that it knew how to reach CIT and was not unable to make the payments that were due under the promissory note.
As to the four-year statute of limitations (Code Civ. Proc., § 337), since the promissory note required the payment of monthly installments, the limitations period commenced as to each installment when that installment became due. (White v. Moriarty (1993) 15 Cal.App.4th 1290, 1299.) Plaintiff limited its claim to amounts that became due within four years of the filing of the complaint. Its showing in support of the summary judgment motion makes clear that the damages it sought and recovered includes no amount that became due prior to that date.
Finally, BFP’s perfunctory reference in its appellate brief to the asserted unconscionability of the assumption agreement may be taken as a waiver of the contention. (Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1033.) In all events, the undisputed fact that BFP “was never given any opportunity to negotiate the terms of the agreement. It was essentially treated as a ‘take it or leave it’ situation” is insufficient to establish either procedural or substantive unconscionability. (Intershop Communica-tions AG v. Superior Court (2002) 104 Cal.App.4th 191, 201.) No other facts were proffered in support of this defense.
Plaintiff carried its burden of establishing each of the elements of BFP’s breach of the promissory note for which BFP became obligated under the assumption agreement, and BFP proffered no evidence creating a triable issue with respect to any element of plaintiff’s cause of action or any defense thereto. Therefore, summary judgment was properly granted.
Disposition
The judgment is affirmed.


_________________________
Pollak, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Jenkins, J.