Filed 2/18/16 Womble v. Osborne CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ALBERT B. WOMBLE,

     Plaintiff and Respondent,                                         G050965

         v.                                                            (Super. Ct. No. 30-2013-00656839)

PATRICIA A. OSBORNE,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
Andrew P. Banks, Judge. Affirmed. Motion to Dismiss. Denied as moot.
                   Law Offices of William B. Hanley and William B. Hanley for Defendant
and Appellant.
                   Troutman Sanders, Penelope Parmes and Martin W. Taylor for Plaintiff and
Respondent.


                                          *                  *                  *
                                    INTRODUCTION
              Defendant Patricia A. Osborne appeals from the judgment entered after the
trial court granted plaintiff Albert B. Womble’s motion for summary adjudication of his
claim against Osborne for breach of a guarantee agreement. Osborne had guaranteed the
repayment of Womble’s $3 million loan to Osborne Development-Calimesa Ranch, L.P.
The promissory note evidencing the loan agreement was secured in part by four deeds of
trust. Osborne opposed the motion on the ground that the security-first rule of Code of
Civil Procedure section 726 required Womble to exhaust that security, or establish the
security is worthless, before suing her for breach of the guarantee agreement. (All further
statutory references are to the Code of Civil Procedure unless otherwise specified.)
              We affirm. Civil Code section 2856, subdivision (a)(3) permits a guarantor
to waive the rights or defenses of section 726. In the guarantee agreement, Osborne
waived the requirement that Womble exhaust any security before suing her for breach of
the guarantee agreement. It is well settled that such a waiver is enforceable. As no
triable issue of material fact exists regarding Womble’s claim for breach of the guarantee
agreement against Osborne, the trial court properly granted summary adjudication on that
claim in favor of Womble.


                              SUMMARY OF THE FACTS
              This lawsuit involves claims arising from three promissory notes and
related guarantee agreements. Osborne’s appeal is limited to challenging the trial court’s
grant of summary adjudication in favor of Womble as to his claim for breach of the
guarantee agreement relating to the promissory note referred to by the parties as the
“Calimesa Note.” Our summary of facts is therefore limited to those facts relevant to that
claim.



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                                            I.
                                    THE CALIMESA NOTE
               On September 10, 2007, Womble and Osborne Development-Calimesa
Ranch, L.P., executed a promissory note secured by deeds of trust, assignments of rents,
and collateral assignment of membership interest in a limited liability company (the
Calimesa Note), pursuant to which Womble loaned $3 million to Osborne
Development-Calimesa Ranch, L.P. The maturity date of the Calimesa Note was
December 31, 2012.


                                            II.
                      THE CALIMESA NOTE GUARANTEE AGREEMENT
               Also on September 10, 2007, Womble, Osborne, her husband, Robert E.
              1
Osborne, Sr., and Osborne Development Corporation (ODC) executed a written
“UNCONDITIONAL GUARANTEE OF PAYMENT,” by which Osborne, her husband,
and ODC (collectively referred to as “Guarantor” in the agreement) unconditionally
guaranteed, among other things, the payment of the entire amount due and owing under
the Calimesa Note as a condition precedent to Womble making the loan set forth in the
Calimesa Note (the Calimesa Note Guarantee Agreement).
               The following excerpts of the Calimesa Note Guarantee Agreement are
relevant to the issue in this appeal.
               Section 1.1: “Guarantor unconditionally guarantees the due and punctual
payment when due of the principal amount of the Loan, together with interest accrued
and to accrue hereafter thereon and all other amounts owing by Borrower to Lender in
connection with the Loan or Loan Documents, and the performance by Borrower of all of



 1
     Robert E. Osborne, Sr., passed away in April 2013.

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its other obligations to Lender, howsoever or whensoever arising, in connection with the
Loan or the Loan documents.”
              Section 1.2: “Guarantor hereby agrees that this Guarantee is a guarantee of
payment and not of collection, and that Guarantor’s obligations under this Guarantee
shall be primary, absolute and unconditional, irrespective of and unaffected by: [¶] . . .
[¶] 1.2.2. The absence of any action to enforce the Note or any of the Loan Documents
or the waiver or consent by Lender with respect to any provisions thereof or of any other
agreements between Guarantor and Lender; [¶] 1.2.3. The existence, value or condition
of any security for the Guaranteed Indebtedness or any action or the absence of any
action by Lender with respect thereof (including without limitation the release thereof);
or [¶] 1.2.4. Any other action or circumstance which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor, it being agreed by Guarantor
that its obligations under this Guarantee shall not be discharged except by payment and
performance as provided herein.” (Italics added.)
              Section 1.3: “Guarantor expressly waives all of the following: [¶]
1.3.1. All rights it may have now or in the future under any statute, or at common law, or
at law or in equity, or otherwise, to compel Lender to proceed in respect of the
Guaranteed Indebtedness against Borrower or any other party or against any security for
the payment of the Guaranteed Indebtedness before proceeding against, or as a condition
to proceeding against Guarantor. . . . It is agreed between Guarantor and Lender that the
foregoing waivers are of the essence of the transaction contemplated by the Loan
Agreement and that, but for this Guarantee and such waivers, Lender would decline to
make the Loan. [¶] 1.3.2. . . . Guarantor further waives the right to a jury trial in any
action hereunder and rights by statute or otherwise to require Lender to institute against
Borrower or to exhaust its rights and remedies against Borrower, Guarantor being bound
to the payment of each and all Guaranteed Indebtedness of Borrower to Lender whether
now existing or hereafter accruing as fully as if such Guaranteed Indebtedness was

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directly owing to Lender by Guarantor. . . . [¶] 1.3.3. . . . Notwithstanding any
foreclosure of the lien of any Trust Deed or security agreement with respect to any or all
of any real or personal property secured thereby, whether by the exercise of the power of
sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed
in lieu of foreclosure, Guarantor shall remain bound under this Guarantee. [¶] 1.3.4. . . .
Guarantor shall have no right of subrogation, reimbursement or indemnity whatsoever
and no right of recourse to or with respect to any assets or property of Borrower or to
any collateral for the Guaranteed Indebtedness of Borrower.” (Italics added.)
              Section 1.5: “Enforcement of Guarantee. Lender may proceed to exercise
any right or remedy which it may have against any property, real or personal, as a result
of any lien or security interest it may have to secure all or any portion of the Guaranteed
Indebtedness, including but not limited to the Assignment, it being agreed that in no
event shall Lender have any obligation to (but may at its option) proceed against
Borrower or any other person or entity or any such real or personal property before
seeking satisfaction from Guarantor under this Guarantee.” (Italics added.)


                                            III.

 OSBORNE DEVELOPMENT-CALIMESA RANCH, L.P., DEFAULTS ON THE CALIMESA NOTE
   AND NEITHER OSBORNE NOR ODC PAY THE OUTSTANDING AMOUNT DUE ON THE
    CALIMESA NOTE PURSUANT TO THE CALIMESA NOTE GUARANTEE AGREEMENT.
              Womble loaned $3 million to Osborne Development-Calimesa Ranch, L.P.
Osborne Development-Calimesa Ranch, L.P., defaulted on its obligations under the
Calimesa Note by failing to make the payment due on the maturity date of December 31,
2012, and failed to tender any further payments at anytime thereafter, despite repeated
requests by Womble.
              Osborne and ODC defaulted on their obligation to repay the amount owed
on the Calimesa Note under the Calimesa Note Guarantee Agreement. As a result,


                                             5
Womble sustained damages of $4,782,027.94, “with interest rapidly accruing at a rate of
$666.67 per day.”


                               PROCEDURAL HISTORY
                                             I.
                                     THE COMPLAINT
               Womble and Aspen Consulting LTD. Profit Sharing Plan (Aspen) filed a
complaint against Osborne, ODC, Osborne Development-Calimesa Ranch, L.P., Buena
Vida Farms, LLC, and REO Investments, LLC, containing claims arising out of the
Calimesa Note and the Calimesa Note Guarantee Agreement as well as other transactions
involving promissory notes and guarantees which are not at issue in this appeal. As
relevant to this appeal, the sixth cause of action of the complaint was Womble’s claim for
breach of the Calimesa Note Guarantee Agreement against Osborne and ODC.
               Osborne and REO Investments, LLC, filed an answer to the complaint,
which did not contain an affirmative defense based on the security-first rule of
section 726.


                                            II.

        WOMBLE AND ASPEN FILE A MOTION FOR SUMMARY JUDGMENT AND/OR
         ADJUDICATION; THE TRIAL COURT GRANTS OSBORNE LEAVE TO FILE
         AMENDED ANSWER TO INCLUDE THE SECURITY-FIRST RULE UNDER
            SECTION 726, SUBDIVISION (a) AS AN AFFIRMATIVE DEFENSE.
               Womble and Aspen filed a motion for summary judgment or, in the
alternative, for summary adjudication as to some of the claims in the complaint alleged
against Osborne and all of the claims alleged against ODC. As to Womble’s sixth cause
of action, the accompanying memorandum of points and authorities argued, “[b]ecause
each of the elements of a written guaranty cause of action are established, and because



                                             6
there are no triable issues of material fact with regard to any of them, this Court should
grant Plaintiff Womble’s motion for summary judgment as to the Sixth Cause of Action.”
              Osborne opposed the motion, arguing, inter alia, “[s]ince this note is
secured by deeds of trust and Plaintiffs have failed to exhaust the security or prove the
security is worthless, Plaintiff Womble is barred by Section 726(a) from pursuing a
money judgment against Defendant Patricia A. Osborne.” She also stated the motion was
improper as to ODC because it had not been served and had not appeared in the action.
Osborne also filed objections to Womble’s evidence.
              In his reply brief, Womble argued Osborne “never alleged the one
action/security first affirmative defense in this litigation and has never sought to amend
her answer to allege that affirmative defense.” Womble also argued that “[a]s to the
Calimesa Note, Ms. Osborne is a guarantor, not a borrower, and expressly waived the
protections of the one action/security first rule that she now seeks to exploit in her
opposition brief.” (Boldface omitted.) Womble filed objections to Osborne’s evidence.
              Osborne and REO Investments, LLC, moved for leave to file a first
amended answer that would add an affirmative defense based on section 726. The trial
court granted the motion for leave to file a first amended answer.


                                             III.

       THE TRIAL COURT GRANTS THE MOTION FOR SUMMARY ADJUDICATION AS
             TO THE SIXTH CAUSE OF ACTION AGAINST OSBORNE ONLY.

              Following a hearing on the motion for summary judgment and/or
adjudication, the trial court overruled all evidentiary objections that had been asserted in
favor of or in opposition to the motion. The court denied the motion as to ODC because
it had never been served with the motion and had not appeared in the action.
              As to the claims for breach of contract alleged against Osborne, involving
promissory notes other than the Calimesa Note, the court denied the motion, stating,


                                              7
“Osborne has sufficiently raised Code of Civil Procedure section 726 as an affirmative
defense. The evidence shows each note at issue is secured by real property, no
foreclosure has taken place, plaintiffs have not exhausted the security, and the security is
not worthless. . . . [citations].”
               As to the sixth cause of action for breach of the Calimesa Note Guarantee
Agreement alleged against Osborne, the court granted summary adjudication in favor of
Womble in the amount of $4,782,027.94 plus interest. The court explained, “Womble
has met [his] burden as to this claim. . . . Osborne has failed to raise a triable issue of
material fact or demonstrate Code of Civil Procedure section 726 precludes summary
adjudication of the claim at this time. The evidence shows Osborne waived the benefit of
section 726 in the subject guarantee. . . . [citations]. Osborne does not dispute the
existence or enforceability of the waiver or that she is a true guarantor.”


                                              IV.

         WOMBLE VOLUNTARILY DISMISSES THE ACTION WITHOUT PREJUDICE
        EXCEPT FOR THE SIXTH CAUSE OF ACTION AGAINST OSBORNE; JUDGMENT
                 IS ENTERED AGAINST OSBORNE; OSBORNE APPEALS.
               Following the trial court’s order granting summary adjudication on the
breach of the Calimesa Note Guarantee Agreement in Womble’s favor, Womble filed a
request for dismissal of the action without prejudice as to “All causes of action and
defendants EXCEPT the sixth cause of action against def. Patricia Osborne.” The court
clerk entered the dismissal as requested.
               Judgment was entered in favor of Womble and against Osborne on the sixth
cause of action in the total amount (including prejudgment interest) of $4,978,028.92.
The judgment further stated that Womble was entitled to recover his reasonable attorney
fees and costs of suit, in an amount that would be determined on a postjudgment motion.
The judgment stated Womble would also be entitled to collect postjudgment interest


                                               8
pursuant to section 685.010, subdivision (a) and costs of enforcing the judgment to the
extent allowed by section 685.070. Osborne appealed.


                                        DISCUSSION
                                               I.
                                   STANDARD OF REVIEW
              We review an order granting summary adjudication de novo. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767; Village Nurseries v. Greenbaum
(2002) 101 Cal.App.4th 26, 35.) A motion for summary adjudication is properly granted
if the moving papers establish there is no triable issue of material fact as to a cause of
action, an affirmative defense, or the existence of or lack of a duty, and the moving party
is entitled to judgment as a matter of law. (§ 437c, subds. (c), (f); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.)
              A plaintiff moving for summary adjudication “has met his or her burden of
showing that there is no defense to a cause of action if that party has proved each element
of the cause of action entitling the party to judgment on that cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or
cross-defendant to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto. The defendant or cross-defendant may not rely upon
the mere allegations or denials of its pleadings to show that a triable issue of material fact
exists but, instead, shall set forth the specific facts showing that a triable issue of material
fact exists as to that cause of action or a defense thereto.” (§ 437c, former subd. (p)(1).)

                                               II.

 SUMMARY ADJUDICATION WAS PROPERLY GRANTED BECAUSE OSBORNE WAIVED THE
 SECURITY-FIRST RULE AFFIRMATIVE DEFENSE UNDER SECTION 726, SUBDIVISION (a).
              Osborne solely challenges the trial court’s order granting Womble’s motion
for summary adjudication of the sixth cause of action for breach of the Calimesa Note

                                               9
Guarantee Agreement on the ground the court misinterpreted the language of that
instrument to conclude she waived the security-first rule of section 726 as an affirmative
defense. We conclude the trial court properly interpreted the Calimesa Note Guarantee
Agreement.
                                             A.
                       Applicable Rules of Contract Interpretation
              We apply basic rules of contract interpretation in our review of the trial
court’s interpretation of the Calimesa Note Guarantee Agreement. (Founding Members
of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109
Cal.App.4th 944, 955.) The basic goal of contract interpretation is to give effect to the
parties’ mutual intent at the time they entered the contract. (Ibid.) “When a contract is
reduced to writing, the parties’ intention is determined from the writing alone, if possible.
[Citation.] ‘The words of a contract are to be understood in their ordinary and popular
sense.’ [Citations.]” (Ibid.) In a case, such as the instant case, in which no extrinsic
evidence is introduced to prove a meaning to which the contract is reasonably
susceptible, we independently construe the contract. (Id. at pp. 955-956.)

                                             B.

       Guarantors May Waive the Protection of Section 726, Subdivision (a) and
     Their Waiver Need Not Expressly Reference That Code Section to Be Effective.
              “In the case of real property, deficiency judgments are governed by Code of
Civil Procedure section 726, which provides that ‘[t]here can be but one form of action
for the recovery of any debt or the enforcement of any right secured by mortgage upon
real property or an estate for years therein, which action shall be in accordance with the
provisions of this chapter.’” (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 47.) “Thus, in
order to obtain a deficiency judgment, [the party] was required first to proceed by judicial
foreclosure (Code Civ. Proc., § 726, subd. (a)). Then, if the proceeds from the



                                             10
foreclosure were insufficient to cover the amount of the promissory note, ‘unless . . . a
deficiency judgment is prohibited by [Code of Civil Procedure] Section 580b,’ he could
seek to collect the remaining debt personally by deficiency judgment [citation].” (Id. at
pp. 47-48; see Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 999
[referring to section 726’s rule prohibiting a bank from bringing a judicial action before
foreclosing the security as the “security-first rule”].)
                                         [2]
              “Civil Code section 2856         provides that any guarantor or other surety,
including a guarantor of a note secured by real property, may waive rights and defenses
that would otherwise be available to the guarantor, including antideficiency protections
provided by Code of Civil Procedure sections 580a and 726. The statute was enacted in
response to the holding of Cathay Bank v. Lee (1993) 14 Cal.App.4th 1533 . . . , which
imposed stringent requirements on the wording and interpretation of a guarantor’s waiver
of a defense arising from the principal’s rights under the antideficiency statutes.
[Citation.]” (Gramercy Investment Trust v. Lakemont Homes Nevada, Inc. (2011) 198
                         3
Cal.App.4th 903, 911.)
              “A guarantor is one who promises to answer for the debt or perform the
obligation of another when the person fails to pay or perform. [Citation.] Although

 2
    Civil Code section 2856, subdivision (a) provides in part: “(a) Any guarantor or other
surety, including a guarantor of a note or other obligation secured by real property or an
estate for years, may waive any or all of the following: [¶] . . . [¶] (3) Any rights or
defenses the guarantor or other surety may have because the principal’s note or other
obligation is secured by real property or an estate for years. These rights or defenses
include, but are not limited to, any rights or defenses that are based upon, directly or
indirectly, the application of Section 580a, 580b, 580d, or 726 of the Code of Civil
Procedure to the principal’s note or other obligation.”
 3
    At oral argument, Osborne cited California Bank & Trust v. DelPonti (2014) 232
Cal.App.4th 162, which was not cited in her appellate briefing. In that case, the appellate
court held guarantors’ predefault waivers “are limited to those legal or statutory defenses
particularly set forth in the guaranty agreement and do not constitute a waiver of all
equitable defenses.” (Id. at pp. 167-168.) As the instant case involves the waiver of
statutory defenses, California Bank & Trust v. DelPonti is inapplicable.

                                                 11
certain antideficiency protections (e.g., Code Civ. Proc., § 580d) are applicable to
guarantors, a guarantor may waive such defenses [citations], whereas a debtor may not
[citations]. Where a contracting party is sufficiently aware of the circumstances and
consequences of a waiver, contractual waiver/estoppel will be found: ‘[P]arties who have
expressed their mutual assent are bound by the contents of the instrument they have
signed, and may not thereafter claim that its provisions do not express their intentions or
understanding.’ [Citations.] Particularly where the parties making the guaranties are
sophisticated businesspersons with expertise in real estate development, a finding of
waiver is appropriate where the language of the waiver evinces such an intention.
[Citation.]” (Gramercy Investment Trust v. Lakemont Homes Nevada, Inc., supra, 198
Cal.App.4th at p. 911.)
              Civil Code section 2856, subdivision (b) provides: “A contractual
provision that expresses an intent to waive any or all of the rights and defenses described
in subdivision (a) shall be effective to waive these rights and defenses without regard to
the inclusion of any particular language or phrases in the contract to waive any rights
and defenses or any references to statutory provisions or judicial decisions.” (Italics
added.)

                                             C.

   Provisions in the Calimesa Note Guarantee Agreement Express Osborne’s Intent to
    Waive the Rights and Defenses of Section 726, Within the Meaning of Civil Code
                         Section 2856, Subdivisions (a) and (b).
              In the Calimesa Note Guarantee Agreement, Osborne expressly agreed to
waive the security-first rule as the agreement states Osborne, as guarantor, agreed (1) her
guarantee obligation is “primary, absolute and unconditional, irrespective of and
unaffected by” the absence of any action to enforce the Calimesa Note or “[t]he
existence, value or condition of any security” or “any action or the absence of any action
by [Womble] with respect thereof”; (2) her guarantee obligation is irrespective of and

                                             12
unaffected by “[a]ny other action or circumstance which might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor”; (3) she “expressly
waive[d]” the right “under any statute” that would compel Womble to “proceed . . .
against any security for the payment of the Guaranteed Indebtedness before proceeding
against, or as a condition to proceeding against [Osborne]”; (4) she waived the right to
require Womble to exhaust his rights and remedies against Osborne
Development-Calimesa Ranch, L.P.; and (5) that “in no event” shall Womble “have any
obligation to (but may at its option) proceed against [Osborne Development-Calimesa
Ranch, L.P.,] or any other person or entity or any such real or personal property before
seeking satisfaction from [Osborne] under this Guarantee.”
              In her opening brief, Osborne argues Civil Code section 2856,
subdivision (c) provides sample language constituting an effective waiver of the rights
and defenses of section 726, and that the Calimesa Note Guarantee Agreement does not
include that sample language. It is true the Calimesa Note Guarantee Agreement does
not include the language set forth in Civil Code section 2856, subdivision (c), but that
subdivision expressly states that the sample language is offered “[w]ithout limiting any
rights of the creditor or any guarantor or other surety to use any other language to express
an intent to waive any or all of the rights and defenses described in paragraphs (2) and (3)
of subdivision (a).”
              Furthermore, as discussed ante, Civil Code section 2856, subdivision (b)
provides a contractual provision that expresses an intent to waive the rights and defenses
of section 726 is sufficient; no “particular language or phrases . . . or any references to
statutory provisions” is required to effect such a waiver (Civ. Code, § 2856, subd. (b)).
Summary adjudication was properly granted.




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                                            III.
                                   MOTION TO DISMISS
              Womble filed a motion to dismiss the appeal under the disentitlement
doctrine, on the ground Osborne failed to comply with the trial court’s order that she
appear for a judgment debtor examination scheduled in October 2015, or with the order
that she appear for a judgment debtor examination on a continued date a month later.
Because we have concluded summary adjudication was properly granted and judgment in
favor of Womble and against Osborne was proper, we do not need to reach the merits of
the motion to dismiss, and therefore deny it as moot.


                                     DISPOSITION
              The judgment is affirmed. Respondent shall recover costs on appeal.




                                                   FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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