Crestwood Capital Corporation v. Andes Industries, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRESTWOOD CAPITAL
CORPORATION,
Plaintiff-Appellee,
v.
ANDES INDUSTRIES, INC.,
Defendant-Appellant.
No. 17-17219
D.C. No. 2:15-cv-00600-NVW
MEMORANDUM*
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.
FILED
MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(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.

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