Judge Mitchell L. Beckloff, Case Number: 22STCV39836, Date: 2023-07-21 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCV39836, Date: 2023-07-21 Tentative Ruling

Plaintiff, BOBS LLC, moves for a writ of attachment against Defendant, Michael Barker, in the amount of $12,865,932.84. The amount of attachment sought includes $5,000 for costs.

Plaintiff’s unopposed request for judicial notice (RJN) of Exhibits A through C is granted.

The application is granted in the amount requested. Plaintiff’s request for a turn over order is denied.

Stoesser Declaration: All objections are overruled except objection 4 which is sustained in part as to “and others” only.

Lavalle Declaration: Objections 1, 5 and 6 are sustained. Objections 2, 3 and 4 are overruled. Objection 7 is sustained in part as to the second sentence and the word “reluctantly” in the first sentence only.

Baker Declaration: Objections 1, 3, 5, 7, 8 (a repeat of 7), 9, 10, 11, 12 and 13 are overruled. Objections 2, 4 and 6 are sustained.

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.” (Code Civ. Proc., § 484.010.)

The court shall issue a right to attach order if the court finds all of the following:

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff has established the probable validity of the claim upon which the attachment is based.

(3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (Id. at § 481.190.) “The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”¿(Id. at § 484.030.)¿“In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.”¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.)

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.)

The application is based on Plaintiff’s cause of action for breach of a guaranty agreement. To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract;

(2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) the damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.)

Plaintiff submits evidence supporting all elements of its contract claim. Plaintiff made a $33 million construction loan to Sunniva Production Campus, LLC (Sunniva);[1] Defendant executed a written guaranty of the loan;[2] Sunniva defaulted on the loan; Plaintiff foreclosed; and Plaintiff suffered principal damages of $8,904,588.33 after obtaining the real property securing the loan with a $25 million credit bid. (Memo 2-4; Shy Decl.[3] ¶¶ 11-20, Exh. A-H.) Defendant has not paid the remaining unpaid balance due on the $33 million loan as required by the guaranty. Plaintiff also submits evidence $3,956,344.51 in interest has accrued from September 20, 2020 through March 31, 2023. (Shy Decl. ¶ 23 and Exh. H.)[4] Finally, Plaintiff reasonably estimates litigation costs of $5,000. (Ibid.) In total, Plaintiff submits evidence of damages and costs in the amount of $12,865,932.84.

Unless rebutted, Plaintiff has demonstrated a probably valid contract claim against Defendant for $12,865,932.84.

Defendant raises two defenses to the probable validity of Plaintiff’s claim–exoneration of the guaranty and equitable estoppel. Neither are persuasive based on the evidence before the court.

Defendant contends Plaintiff “agreed to exonerate the Guaranty” in exchange for the assistance of Defendant’s company, Barker Pacific Group, Inc. (BPG), with Plaintiff’s defense of claims in an arbitration proceeding (the Arbitration) filed against Plaintiff by CP Logistics LLC (CPL). (Opposition 12-14.)

Defendant does not cite any provisions of the guaranty related to “exoneration.” Nor does Defendant cite statutes or case law related to “exoneration” of a guaranty. Accordingly, Defendant forfeits the “exoneration” argument for purposes of this application. (See Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 588. [“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court’”]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862-863 [same]. See Reply 3:6-14.)

Nonetheless, as noted by Plaintiff in reply, the term “exoneration” in surety law generally refers to a release of liability of the guarantor resulting from a material change to the underlying obligation. (Reply 3; Civ. Code, § 2819. [“A surety is exonerated, except so far as he or she may be indemnified by the principal, if by any act of the creditor, without the consent of the surety the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended.”]; see R.P. Richards, Inc. v. Chartered Const. Corp. (2000) 83 Cal.App.4th 146, 154. [“Certain acts by the promisee exonerate, or release, the surety.”] See also Civil Code § 2787 [terms “sureties” and “guarantors” have same meaning].)

Here, the Guaranty waives an exoneration defense by providing that “[t]he guarantees set forth in this Guaranty are continuing guarantees and shall not be exonerated by any amendment or modification of the Promissory Note with Borrower’s consent and Guarantor hereby waives notice of any such amendment.” (Shy Decl. Exh. C.) Defendant does not develop an argument that an “exoneration” occurred within the meaning of surety law, or that the exoneration was ineffective. Accordingly, even assuming Defendant did not forfeit his argument as to “exoneration” for purposes of this application, the argument is not persuasive. Of course, nothing precludes Defendant from further developing his “exoneration” defense in future proceedings.

Although not expressly stated in the opposition, Defendant likely contends Plaintiff agreed to “waive” or not enforce the guaranty when BPG assisted Plaintiff’s efforts in the Arbitration. For purposes this application, the court finds Defendant’s position unpersuasive for several reasons.

Again, since Defendant does not discuss the relevant contract provisions or applicable law, Defendant forfeits any argument of waiver for purposes of this application. (See Saltonstall v. City of Sacramento, 234 Cal.App.4th at 588.) Alternatively, Defendant does not demonstrate a defense of waiver to a probable validity. Paragraph 11 of the guaranty states: “no waiver by Lender shall be binding unless executed in writing and shall only be binding as to the particular signatory thereof.” (Shy Decl. Exh. F [emphasis added].) Defendant submits no evidence Plaintiff agreed in writing to waive the guaranty. Thus, his waiver argument fails.

To the extent Defendant contends the joint defense and common interest agreement between Plaintiff and BPG constitutes a written waiver of the Guaranty, the argument is unpersuasive. (Barker Decl. Exh. 1. See Opposition 10-11; see also Reply 6-7.) The common interest agreement (and its recitals) is unambiguous. Defendant is not a party to the common interest agreement, and the contract language addresses only the parties’ agreement to share evidence in confidence for purposes of the Arbitration.[5] (Lavalle Decl. Exh. 1.) The common interest agreement (including its recitals) cannot reasonably be interpreted as a written waiver of the guaranty.

Defendant has not argued Plaintiff could orally waive the obligations under the guaranty despite paragraph 11’s prohibition. Any such argument has therefore been forfeited. Defendant also does not address the conflict between an alleged oral waiver with the plain language of the guaranty. The “evidence” about Barry Shy’s conversations with BPG’s in house counsel is weak (at best) and largely inadmissible. Indeed, the evidence submitted is about in house counsel’s perception of Barry Shy’s intent. Thus, the court finds it unnecessary to address Plaintiff’s contention, in reply, Plaintiff did not orally agree to waive Defendant’s obligations under the guaranty. (Reply 4-5.)[6]

Having considered the relative merits of the parties’ position, the court concludes Defendant has not proven an “exoneration” or waiver defense under the probable validity standard.

Defendant contends Plaintiff must be equitably estopped from enforcing the guaranty because Plaintiff “enticed BPG to help clear its title to the Property with an offer to exonerate the Guaranty.” (Opposition 15-16.)

“Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations.]” (Insurance Co. of the West v. Haralambos Beverage Co. (1987) 195 Cal.App.3d 1308, 1321.) “[T]he determination of whether a defendant's conduct is sufficient to invoke the doctrine of equitable estoppel is a factual question.” (Brookview Condominium Owners’ Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 510.)

BPG is a real estate development company founded by Defendant in 1983. Defendant is the Chief Executive Officer and managing director of BPG. The $33 million loan at issue in this litigation financed a project to construct a customized cannabis cultivation, production, and distribution facility. The project was ultimately named RRPC. BPG provided administration, accounting, and reporting services to RRPC. In October 2017, Sunniva’s affiliate, CPL, entered into a build-to-suit lease with RRPC; under the agreement RRPC would pay for the premises build out and act as landlord. The CPL lease obligated CPL to pay the cost of construction change orders initiated by CPL. (Barker Decl. ¶¶ 1-5.)

“Long after construction had been underway, CPL made a major, expensive change to the Facility cooling system it had originally specified. However, beginning in November 2019 CPL refused to pay the change-order costs it had previously approved. When it became clear that CPL was either unwilling or unable to pay for the change order costs, RRPC served notice of default under the CPL Lease. When CPL failed to timely cure its monetary default, RRPC terminated the CPL Lease and demanded that CPL relinquish its right to occupy the RRPC Facility. At that time, I asked BPG's General Counsel, Amanda Lavalle, to serve as the primary point of contact for BPG and me in all communications with CPL, [Plaintiff], and [Plaintiff’s] principal, Barry Shy.” (Barker Decl. ¶ 8.)

In April 2020, Plaintiff declared the $33 million loan in default and commenced a nonjudicial foreclosure. In September 2020, Plaintiff foreclosed on its deed of trust and acquired the underlying real property (the RRPC facility) that secured the loan with a credit bid of $25 million. (Barker Decl. ¶¶ 11-13.)

“In April 2021, CPL renewed its arbitration claim by filing a new claim against [Plaintiff]. In that claim, CPL asserted that it had not defaulted under the CPL Lease, the CPL Lease had not been forfeited and instead remained in full force and effect, and CPL retained its right to occupy the RRPC Facility as Tenant under the CPL Lease. CPL also claimed that it owned $20 million of fixtures installed in the RRPC Facility.” (Id. ¶ 14.)

“After CPL initiated the CPL Arbitration, Barry Shy called me to discuss BPG assisting in the defense. Mr. Shy explained that [Planitiff] and BPG had a common interest in successfully defending against the CPL Arbitration because of Mr. Barker’s Guaranty. To emphasize the point, Mr. Shy said: ‘I like Michael [Barker], I don’t want to have to go after him on the Guaranty.’ . . .BPG’s Management Committee determined, in a meeting that I attended, that it was in BPG’s best interests to align itself with Bobs, as CPL’s successor landlord, to defeat CPL’s claims in reliance on the understanding that Mr. Shy had intended for his words and conduct when asking for BPG’s help with the CPL Arbitration to mean that, if BPG helped [Plaintiff] to prevail in the CPL Arbitration, [Plaintiff] would not seek to enforce the Guaranty.” (Lavalle Decl. ¶¶ 16, 17.)[8]

Plaintiff and BPG executed a common interest agreement which formalized the parties’ agreement and process for sharing certain evidence and communicating confidentially about the Arbitration. (Lavalle Decl. ¶ 17-19, Exh. 1.) Defendant submits evidence BPG performed under the common interest agreement by, among other things, “conferr[ing] numerous times with [Plaintiff’s] attorneys, consultants, and expert witnesses to propose strategies, answer questions, identify documents, and provide information to help Bobs prepare for the CPL Arbitration.” (Lavalle ¶¶ 20-22.) Plaintiff prevailed at the Arbitration with BPG’s assistance. (Lavalle Decl. ¶ 23.)

Defendant also submits evidence BPG paid for its employees’ time when BPG assisted Plaintiff. Defendant explains BPG’s employees spent significant time cooperating with and assisting Plaintiff’s counsel, consultants, and expert witnesses prepare for the Arbitration. BPG incurred approximately $105,570.00 in costs doing so. (See Lavalle Decl. ¶ 21.)

At deposition and in a declaration, Barry Shy disputes he agreed, orally or in writing, to exonerate, release, or waive the guaranty. (Judd Decl. Exh. 6 at 46-53, Barry Shy Decl. ¶ 2.)

Defendant contends Barry “Shy led BPG to believe that if BPG helped [Plaintiff] prevail in the CPL Arbitration, [Plaintiff] would exonerate the Guaranty.” (Opposition 16:1-3.) Defendant asserts “BPG relied on [Plaintiff’s] offer, at substantial cost, to devote its personnel and resources to educating [Plaintiff’s] counsel, consultants, and expert witnesses to prepare for the CPL Arbitration, and to prepare for and provide key testimony on [Plaintiff’s] behalf.” (Opposition 16:23-25.)

As a preliminary matter, Defendant, the individual, executed the guaranty, not BPG. Defendant is raising the estoppel defense, not BPG. Defendant does not demonstrate he, as an individual, detrimentally relied on any conduct of Plaintiff or its principal, Barry Shy. Defendant conflates himself with BPG. He does not address or cite any law permitting an individual to raise an estoppel defense based on a corporation’s alleged detrimental reliance.

Moreover, even if Defendant may assert an estoppel defense based on alleged reliance by BPG, Defendant has not met his burden here. The anemic evidence does not support an estoppel defense.

Defendant contends BPG detrimentally relied on Barry Shy’s alleged statement, “I like Michael [Barker], I don’t want to have to go after him on the Guaranty.” (Lavalle Decl. ¶ 16.) While Barry Shy has not denied making that specific statement, he has denied agreeing, orally or in writing, to exonerate, release, or waive the guaranty. (Judd Decl. Exh. 6 at 46-53, Barry Shy Decl. ¶ 2.) In fact, Barry Shy clearly testified at deposition he told Defendant he could not release Defendant from the guaranty.[9] (Judd Decl. Exh. 6 at 50, 52, 84.)

Barry Shy’s statement—about not wanting to “go after” Defendant must be interpreted in the context of a $33 million guaranty with a substantial $8 million obligation accruing interest. In that context, the court finds Barry Shy’s alleged statement far too vague to justify any reasonable belief on Lavalle’s part that Plaintiff would not enforce the Guaranty in any manner if BPG assisted in the Arbitration. Even as described by Lavalle, Barry Shy did not state or imply Plaintiff would release the guaranty if BPG assisted in the Arbitration. Moreover, Barry Shy testified at deposition Defendant wanted the release from the guaranty to “be part of the agreement . . . .” (Judd Decl. Exh. 6 at 83.) Barry Shy specifically advised Defendant such a release would not be part of any common interest agreement. Given the context, Barry Shy’s deposition testimony is credible. (Judd Decl. Exh. 6 at 83-84.)

Defendant apparently believes Plaintiff intended to cause Defendant to believe Plaintiff would not enforce the guaranty simply by virtue of asking for BPG’s help in the Arbitration and by executing the common interest agreement. (Opposition 16:3-5; Lavalle Decl. ¶ 17; Barker Decl. ¶ 22.) Defendant fails to show the common interest agreement could be viewed as wrongful conduct by Plaintiff or could have reasonably caused Defendant to believe Plaintiff would not enforce the guaranty. The common interest agreement merely formalized the parties’ agreement and process for sharing certain evidence and communicating confidentially about the Arbitration. (Lavalle Decl. ¶ 17-19, Exh. 1.) As discussed earlier, there is no language in the agreement suggesting Plaintiff would “exonerate” or release the guaranty if BPG assisted in the Arbitration. Indeed, Defendant was not even a party to the agreement.

Further, if CPL had prevailed in the Arbitration, Defendant may have had some liability on the guaranty to Plaintiff in connection with any such arbitration award. (See Reply 7-8 and Barry Shy Decl. ¶ 3; see also Judd Decl. Exh. 4 [arbitration decision].) Among other reasons, Plaintiff’s borrower agreed to broadly indemnify Plaintiff in the construction loan agreement, and Defendant guaranteed all of the borrower’s obligations. (Memo Exh. A at ¶ 15.5; and Exh. C.) In that context, Defendant himself appears to have had an interest in defeating the Arbitration causing BPG to participate in the Arbitration.[10] Without some oral or written statement of intent to release the guaranty, the court is not persuaded Plaintiff’s request for BPG’s help in the Arbitration was, in itself, sufficient to reasonably cause BPG and Defendant to believe Plaintiff would release the guaranty. (This is especially true given that Barry Shy told Defendant he could not release him from the guaranty.)

Finally, as persuasively argued in reply, if Defendant or BPG actually believed Barry Shy had committed to exonerate or release the guaranty–for a $33 million guaranty with an underlying $8 million obligation—sophisticated parties such as these would have confirmed such an agreement in writing. Defendant had the assistance of BPG’s in house counsel. Moreover, if Defendant or BPG reasonably believed Barry Shy had made such representation and they had actually and detrimentally relied on it, Defendant or BPG would have objected more strenuously when Plaintiff later indicated it intended to enforce the guaranty. (Reply 5:1-19; see Lavalle Decl. ¶ 24 and Barker Decl. ¶ 22.) Given all these factors, the court concludes the evidence does not support a conclusion, under the probable validity standard, Defendant or BPG actually or reasonably relied to their detriment on any alleged representation or conduct of Plaintiff.

California Bank & Trust v. Delponti (2014) 232 Cal.App.4th 164 does not support Defendant’s estoppel defense. There the “Bank d[id] not discuss or challenge the trial court's factual findings, including the court's finding that the Bank was guilty of willful misconduct.” (Id. at 166.) The published portion of the court’s decision did not address equitable estoppel and did not provide any guidance on estoppel relevant to the circumstances here. “ ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154-55.)[11]

Having considered the relative merits of the parties’ position, the court concludes Defendant has not proven an estoppel defense under the probable validity standard. Of course, Defendant is not precluded from further developing his position in subsequent proceedings.

“[A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.” (Code Civ. Proc., § 483.010, subd. (a).) “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement . . . .” (Id. at § 483.010, subd. (b).) “If the action is against a defendant who is a natural person, an attachment may be issued only on a claim which arises out of the conduct by the defendant of a trade, business, or profession. (Id. at § 483.010, subd. (c); see Advance Transformer Co. v. Superior Court (1974) 44 Cal.App.3d 127, 143-144.)

Here, Plaintiff’s application for writ of attachment is based on an agreement where the total amount allegedly due is in excess of $500. The guaranty is not secured by real property. Plaintiff’s damages are fixed and readily ascertainable from the terms of the guaranty and Plaintiff’s declaration and exhibits. The evidence demonstrates Defendant executed the guaranty as part of his trade, business, or profession. (Barker Decl. ¶¶ 2-6; Shy Decl. ¶ 12, Exh. C.)

Code of Civil Procedure section 484.090 states the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”

Plaintiff declares, and the court finds, the attachment is not sought for a purpose other than the recovery on Plaintiff’s contract claim. (Appl. ¶ 4.) The amount to be secured is greater than zero.

As discussed earlier, Defendant has not argued or proven the attachment should be reduced by an attachable claim for offset or an affirmative defense. (Code Civ. Proc., § 483.015, subd. (b).)

Plaintiff requests attachment against Defendant, a natural person, of items listed in Code of Civil Procedure section 487.010, subdivisions (c) and (d). (Application ¶ 9c.) The request is proper. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [“all-inclusive” application satisfies Code of Civil Procedure section 484.020, subd. (e)].)

Code of Civil Procedure section 489.210 requires a plaintiff to file an undertaking before a writ of attachment may be issued. Pursuant to Code of Civil Procedure section 489.220, the court sets Plaintiff’s undertaking at $10,000.

Plaintiff also seeks a turnover order. (See Proposed Order ¶ 3.d.) “If a writ of attachment is issued, the court may also issue an order directing the defendant to transfer to the levying officer either or both of the following: [¶] (1) Possession of the property to be attached if the property is sought to be attached by taking it into custody. [¶] (2) Possession of documentary evidence of title to property of or a debt owed to the defendant that is sought to be attached.” (Code Civ. Proc., § 482.080 [emphasis added].)

Plaintiff has not argued it is entitled to a turn over order. Accordingly, Plaintiff’s request for a turn order as set forth in its proposed order is denied.

The application is granted in the amount requested. Plaintiff shall post an undertaking of $10,000 prior to a writ issuing.

[1] Sunniva was later renamed Ramon Road Production Campus, LLC (RRPC). (Barker Decl. ¶ 4.)

[2] Originally, Defendant’s guaranty was for $27 million. Later, Defendant signed a restated guaranty for $33 million. (Shy Decl. Exh. C, F.)

[3] References herein to the Shy Decl. are to the Declaration of Rommy Shy filed March 13, 2023. References herein to the Barry Shy Decl. are to the Declaration of Barry Shy filed July 19, 2023 in support of Plaintiff’s reply.

[4] Defendant states he has not had an opportunity to question Plaintiff about the “$4.9 million difference” between the $8,904,588.33 in principal damages and the $12,865,932.84 total amount sought to be attached. (Opposition 5, fn. 1.) The application shows a difference of $3,961,344.51, which is comprised of $3,956,344.51 of pre-judgment interest and $5,000 in costs. (Shy Decl. ¶ 23 and Exh. H.) For purposes of this application, Defendant has not rebutted the interest calculations in Shy’s declaration and Exhibit H.

[5] The court finds Barker’s explanation about bias and the common interest agreement’s provision concerning consideration not credible. (See Barker Decl. ¶ 19.)

[6] Even assuming an oral agreement to waive the guaranty was permissible under the express terms of the agreement, the court finds more persuasive Plaintiff’s reply arguments and evidence that there was no such oral agreement. (Reply 4-5.) Defendant relies on evidence its General Counsel, Amanda Lavalle, subjectively understood certain statements of Plaintiff’s principal, Barry Shy, to mean Plaintiff would not pursue the guaranty if BPG assisted in the Arbitration. (See e.g. Lavalle Decl. ¶ 16) “The parties' undisclosed intent or understanding is irrelevant to contract interpretation.” (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) Barry Shy also disputes that he agreed, orally or in writing, to exonerate, release, or waive the guaranty. (Judd Decl. Exh. 6 at 46-53, Reply Shy Decl. ¶ 2.) Barry Shy’s statements he did not so agree are also consistent with his deposition testimony. (Judd Decl. Exh. 6 p. 50, 52, 84.)

[7] The court has considered Defendant’s detailed Statement of Facts and supporting declarations. The court merely summarizes the salient facts here.

[8] The court has omitted Lavalle’s statements to which the court sustained evidentiary objections.

[9] Based on the evidence, the court finds Barry Shy’s deposition testimony credible. Given Barry Shy’s clear statements to Defendant, neither Defendant nor BPG could have reasonably relied on Lavalle’s beliefs about what Barry Shy intended with his statement he did not want to “go after” Defendant based on the guaranty.

[10] The court acknowledges Plaintiff raised the argument in reply. However, since Defendant raised the estoppel defense in opposition, the reply argument is permissible rebuttal.

[11] In the published portion of the decision, the Court held the waiver of defenses in the guaranty agreements were limited to legal or statutory defenses particularly set forth in the agreements and did not constitute a waiver of all equitable defenses. Plaintiff has not argued Defendant waived an estoppel defense. Thus, the holding of California Bank & Trust is not relevant to this motion.