Crestwood Capital Corporation v. Andes Industries, Inc.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRESTWOOD CAPITAL No. 17-17219 CORPORATION, D.C. No. 2:15-cv-00600-NVW Plaintiff-Appellee,

v. MEMORANDUM*

ANDES INDUSTRIES, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted May 14, 2019 San Francisco, California

Before: THOMAS, Chief Judge, and McKEOWN and GOULD, Circuit Judges.

Andes Industries, Inc. (“Andes”) appeals the district court’s entry of

summary judgment in favor of Crestwood Capital Corporation (“Crestwood”),

ordering Andes to pay Crestwood the amount due on a note. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We review the district court’s grant of summary

judgment de novo, Chemehuevi Indian Tribe v. Newsom, 919 F.3d 1148, 1150–51

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (9th Cir. 2019), and we affirm. Because the parties are familiar with the facts, we

omit them.

Andes argues that summary judgment was inappropriate because it has

outstanding claims that could be used to support a setoff defense. Even if this were

once true, we affirmed the dismissal of the claims Andes bases its setoff defense on

in Andes Industries, Inc. v. Cheng Sun Lan, No. 17-17059, 2019 WL 2152825 (9th

Cir. May 16, 2019). A potential setoff defense is therefore no barrier to the entry

of summary judgment.

Andes also argues that summary judgment was inappropriate because it has

a viable fraud defense to the enforcement of the note. However, the district court

did not err in holding that this defense had been waived because Andes failed to

plead it in its answer. See Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d

802, 819 (9th Cir. 2004) (“Failure to plead an affirmative defense . . . results in a

waiver of that defense.”).

Because these two arguments were the only grounds for reversing the district

court Andes asserts, we affirm the district court’s grant of summary judgment.

AFFIRMED.