Filed 7/7/22 Cable v. O’Neill CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DENISE CABLE et al.,

Plaintiffs and Respondents,

v.

MICHAEL THOMAS O’NEILL,

Defendant and Appellant.

 D078601

 (Super. Ct. No. 37-2019-

 00018657-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Joel R. Wohlfeil, Judge. Affirmed.

Arendsen Cane & Molnar, Christian S. Molnar; Atabek & Associates 

and Jon A. Atabek for Defendant and Appellant.

Dean Gazzo Roistacher, Lee H. Roistacher, Samuel C. Gazzo and 

Joseph M. Radochonski for Plaintiffs and Respondents.

Denise and James Cable sued Michael Thomas O’Neill for breach of 

contract and a common count of money had and received after O’Neill failed

to repay a loan as required by two written agreements. O’Neill contended 

that the loan represented an investment in a business venture and that the 
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Cables owe him money for litigation expenses that he incurred in pursuing

that deal. The trial court granted summary judgment for the Cables,

concluding that the undisputed evidence showed that O’Neill was obligated to 

repay the loan under the terms of a fully integrated written loan agreement 

and a subsequent written agreement to extend the repayment terms, neither 

of which referred to an investment agreement. O’Neill appeals the judgment

contending that the trial court ignored triable issues of fact and misapplied 

the parol evidence rule. We conclude that O’Neill has forfeited his claims of 

error by failing to provide cogent arguments supported by citations to the 

record and authority. Even if he had not forfeited his claims, the court 

properly granted summary judgment because the undisputed evidence 

established that O’Neill breached written agreements to repay a loan. We 

therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background

Denise Cable met O’Neill in approximately 2014 when he was a student 

in a scuba diving instructor class that she taught for Ocean Enterprises. At 

the time, Ocean Enterprise conducted three different types of business: 

a scuba gear retail store, which included service, rental, and instructional 

departments; military sales; and a travel division that took clients on scuba 

diving trips. Denise and O’Neill became work associates at Ocean 

Enterprises and friends. O’Neill also became friends with Denise’s husband, 

James.

In the summer of 2015, O’Neill expressed interest in purchasing the 

retail scuba gear rental portion of Ocean Enterprises. O’Neill loaned the 

owner of Ocean Enterprises, Werner Kurn, money to pay off some business 

debts while they discussed the potential sale.
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The Cables considered investing in O’Neill’s purchase of the business. 

They attended a meeting with O’Neill and Kurn’s financial advisor to look at 

the financial information for Ocean Enterprises as part of the financial due 

diligence process to determine a fair purchase price. After reviewing 

financial documents provided by Kurn, James Cable expressed serious 

concerns about the cash flow of Ocean Enterprises.

By the end of 2015, O’Neill had loaned Kurn a total of $300,000.

Negotiations continued and in February 2016, Kurn asked O’Neill for an 

additional loan of $100,000.

B. February 2016 Loan Agreement

O’Neill asked the Cables for a loan of $100,000 in February 2016 to 

enable O’Neill to pursue the business opportunity with Kurn. Although 

O’Neill intended to provide the money to Kurn, he assured the Cables that 

the loan would be for only a few months and that O’Neill would pay it back 

quickly with interest. Denise wrote a check to O’Neill in the amount of 

$100,000 on February 16, 2016.

According to O’Neill, Denise told him that James required a promissory 

note, but that the note would be a “fiction, partly to not disclose her status as 

a silent investor to Kurn and partly to appease her then-separated 

husband.”1 O’Neill maintains that the $100,000 represented a 25 percent 

equity investment by Denise that the Cables agreed O’Neill could repay when

Kurn paid O’Neill, and that Denise would be responsible for 25 percent of any 

expenses incurred in attempting to recover funds from Kurn.2

1 The Cables separated in December 2015.

2 The court sustained the Cables’s objections to statements in O’Neill’s 

initial declaration that they agreed that the funds would serve as an equity 

investment of $100,000 in Ocean Enterprises, that Denise Cable would act as 
4

O’Neill drafted and executed a two-page “loan agreement” dated 

February 17, 2016, which he e-mailed to Denise. In the e-mail attaching the 

agreement, O’Neill stated, “we all know this money is going to [Kurn] but this 

loan and any other subsequent are to me and me alone. For this particular 

loan to make you more secure of repayment I am selling my cape house as 

soon as the snow melts and I get home to spruce it up. I am selling the home 

in any case whether this deal with Werner goes through or not so I will be 

sure to keep up the payment schedule and have the principal ready for you 

should you decide not to engage in our scuba venture.” He also said, “[i]f we 

do go forward” he would secure a life insurance policy and list Denise as a 

beneficiary to “more than cover her investment amount.”

a silent partner with a 25 percent equity interest in the business, that she 

would be responsible for 25 percent of any expenses incurred to acquire the 

business, and that if the acquisition did not go through, “[the Cables] would 

be repaid when Kurn repaid [O’Neill], basically accepting that as collateral.”

However, the Cables did not object to nearly identical passages in 

O’Neill’s second declaration, which he submitted in support of his further 

opposition to the motion for summary judgment after conducting discovery. 

They did not object to a statement that the Cables agreed they would be 

repaid when Kurn repaid O’Neill or that Denise Cable “would be responsible 

for 25 [percent] of any expenses in recovering the funding back from Kurn.” 

The court overruled the Cables’s objections to two sentences in O’Neill’s 

second declaration stating that the Cables “provided the initial $100,000 as 

Denise Cable’s investment in Ocean Enterprises as a 25 [percent] silent 

partner who would be responsible for 25 [percent] of any expenses incurred 

by the partnership in the acquisition or operation of the acquired business” 

and that the “$100,000.00 represented Denise Cable’s 25[ percent] equity 

interest in the business as a silent partner.” We decline the Cables’s request 

to find that the trial court abused its discretion in making these later rulings. 

(Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52 [in 

considering a trial court’s evidentiary rulings we “ ‘will only interfere with 

the lower court’s judgment if [the objecting party] can show that under the 

evidence offered, “ ‘no judge could reasonably have made the order that he 

did’ ” ’ ”].)
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The terms of the loan agreement required O’Neill to repay $100,000 

with interest at a rate of 10 percent per annum. He agreed to repay the loan 

“in consecutive monthly installments of interest only . . . commencing the 

month following the execution of this Agreement and continuing until July 1, 

2016. With the balance then owing under this Agreement being paid at that 

time.”

The agreement stated, “This Agreement may only be modified by a 

written instrument executed by both the Borrower and the Lender.” It also 

stated, “This Agreement constitutes the entire agreement between the 

parties and there are no further items or provisions, either oral or otherwise.”

O’Neill deposited the check on February 17, 2016. He made three 

interest-only payments between March and May 2016.

C. Ocean Enterprises Deal Falls Through

By the end of May 2016, O’Neill learned that Kurn had provided 

misleading information about the value of Ocean Enterprises and its 

profitability. The deal to purchase part of Ocean Enterprises’ business fell 

through. O’Neill eventually sued Kurn in June 2018 for failing to repay the 

loans that Kurn obtained from O’Neill.

D. Interest-Only Payments

O’Neill did not repay his loan from the Cables by July 1, 2016. He 

made interest-only payments between July 2016 and January 2018. In 

February 2018, the Cables and O’Neill discussed a plan to repay the loan.

E. February 2018 Agreement to Extend Debt Repayment

O’Neill prepared and executed a second written agreement on February 

12, 2018, titled “Debt Repayment Extension Agreement” memorializing the

parties’ agreement to extend the debt repayment period under additional 

terms. O’Neill agreed that he owed the Cables “the sum of $100,000.00, said 
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sum being presently due and payable.” In consideration for the Cables’s

“forbearance,” O’Neill agreed to make monthly principal payments of $5,000 

plus interest until paid in full, with a full maturity date of October 10, 2019. 

He further agreed that if he failed to make any payments “punctually on the 

agreed upon extended terms,” the Cables would have “full rights to proceed 

for the collection of the entire balance then remaining.”

O’Neill made loan repayments between March and November 2018. He 

stopped making payments after November 8, 2018.

F. Litigation

The Cables sued O’Neill in April 2019 for breach of contract, money had 

and received, and unjust enrichment. They alleged that O’Neill had breached 

the agreement to extend the debt payment by failing to make payments since 

November 2018. They later amended their complaint to remove the unjust 

enrichment cause of action.

The Cables moved for summary judgment based on O’Neill’s written 

discovery in which he admitted that the Cables loaned him $100,000, that he 

agreed to repay the $100,000 with interest, that after making some interestonly payments he entered into an agreement in 2018 to extend the debt 

repayments, and that he stopped making payments after November 8, 2018.

O’Neill opposed the motion, contending that he needed additional time 

to conduct discovery regarding triable issues of fact and his affirmative 

defenses of frustration of purpose, failure to mitigate damages, and equitable 

estoppel. He did not dispute that there was a written contract, but he 

contended that defenses to breach of contract existed. Although he agreed 

that “performance on the contract, namely making loan payments, remains 

possible,” he claimed that the “reason and entire basis” for the contract

“namely utilizing the money to acquire Mr. Kurn’s business, Ocean 
7

Enterprises, was frustrated by the supervening circumstance of nonacquisition due to Mr. Kurn’s fraud and unanticipated breach of contract to 

repay O’Neill.” He claimed that Kurn had “thwarted” his attempt to return 

the Cables’s money. O’Neill contended that the Cables had not responded to 

his phone calls about his lawsuit against Kurn and that they had failed to

pay their share of fees and costs to recover money from Kurn.

O’Neill asserted the defense of equitable estoppel, claiming that Denise 

Cable had orally agreed to be a silent partner in the business venture and 

that she would pay a 25 percent share of expenses related to that business 

venture. O’Neill claimed that Denise intended for him to rely on this 

agreement when he entered into the initial loan agreement but that she 

intended to renege on the agreement if the venture failed. He contended that 

he would not have entered into the agreement if he had known that she did 

not intend to bear 25 percent of the expenses related to the Kurn transaction.

At O’Neill’s request, the court continued the summary judgment 

hearing to allow O’Neill to conduct discovery regarding facts essential to 

oppose the motion.

O’Neill submitted a further opposition asserting the same arguments. 

As he had previously, he agreed that “it is undisputed that . . . there was a 

written contract.” However, he contended that the Cables had omitted facts 

surrounding the initial agreement, namely, oral agreements that Denise 

Cable would be a 25 percent silent investor in the business venture. O’Neill 

contended that triable issues of material fact existed regarding “(1) whether 

the agreement between [the Cables] and O’Neill was characterized as a loan 

or an investment, (2) the amount of payments made by O’Neill to [the 

Cables], and (3) the amount due and owing under the Promissory Note in

light of Denise Cable’s responsibility for partnership losses pursuant to her 
8

25 [percent] equity interest and liability.” He contended that his duty to 

perform under the contract was discharged by offset, frustration of purpose, 

failure to mitigate, and equitable estoppel.

O’Neill did not dispute that he failed to repay the initial loan by July 1, 

2016. Nor did he dispute that he entered into an agreement to extend the 

debt repayment schedule in 2018, with additional terms. He did not dispute 

that he had made only 12 of the payments of principal and interest required 

by the debt extension agreement.

In reply, the Cables pointed out that O’Neill admitted in discovery 

responses that the Cables loaned him $100,000 on February 16, 2016, which 

he did not repay by July 16, 2016, and that his opposition was essentially 

silent about the subsequent agreement to extend the debt payment. They 

argued that there was no genuine dispute about the amounts that O’Neill 

had repaid.

The Cables argued that any breach of a separate oral agreement that 

Denise would reimburse 25 percent of O’Neill’s expenses related to the Kurn 

litigation was immaterial to the Cables’s breach of contract action because 

this issue was outside of the pleadings and was barred by the statute of

limitations and the statute of frauds. They argued that a frustration of 

purpose defense was not properly pled as an affirmative defense and, in any 

event, O’Neill admitted that performance of the contract remains possible 

and reaffirmed his loan obligation with the agreement to extend the debt 

repayment after the business deal fell through. The Cables argued that 

mitigation of damages does not apply to a claim for breach of contract, where 

damages are fixed by the agreement. Finally, they argued that the claim for 

equitable estoppel was unintelligible and that any attempt to modify the 
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initial agreement or the agreement to extend the debt payments is barred by 

the parol evidence rule.

G. Ruling on Summary Judgment Motion

After considering the evidence and arguments of counsel, the trial court

took the matter under submission. The court subsequently issued a ruling 

confirming its tentative ruling and granting summary judgment. The court 

concluded that the undisputed evidence showed that O’Neill entered into an

agreement to repay a $100,000 loan under specified terms. The court noted 

that the short agreement made no reference to any other investment 

agreement. The agreement stated that it could be modified only by a 

subsequent written agreement between the parties and it included an 

integration clause. The court concluded that no provision of the agreement 

entitled O’Neill to an offset for legal fees and costs related to the Kurn 

litigation and that the outstanding amount owed was essentially undisputed.

The court rejected the defense of equitable estoppel, observing that 

O’Neill could not have relied on a separate oral agreement because the loan 

agreement was fully integrated and could be amended only by written 

agreement. The court commented that any separate agreement with Denise 

Cable about litigation expenses related to the Kurn deal would not release 

O’Neill from his obligation to repay the loan under the terms of the 

agreement.

The court rejected the defense of failure to mitigate damages as 

inapplicable to a breach of contract action where damages are fixed by the 

note. It also rejected the defense of offset as inapplicable because O’Neill did 

not have a judgment against the Cables.

Finally, the court noted that O’Neill had not pled the affirmative 

defense of frustration of purpose. The court further commented that, in any 
10

event, the agreement to repay the loan was not conditioned on the successful 

purchase of the Ocean Enterprises venture and the Cables had not 

contractually agreed to assume the risk of any failed venture.

The court entered judgment in favor of the Cables and awarded 

damages in the amount of $69,085.30. The court noted that the judgment 

may be augmented with recoverable costs as allowed by law and attorney fees 

pursuant to contract, upon proper motion.3

DISCUSSION

A. General Principles Governing Review of Summary Judgment

Summary judgment is properly granted if the record demonstrates that 

there is no triable issue of material fact such that the moving party is 

entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

In reviewing an appeal from a summary judgment, “ ‘we examine the 

facts presented to the trial court and determine their effect as a matter of 

law.’ [Citation.] We review the entire record, ‘considering all the evidence 

set forth in the moving and opposition papers except that to which objections 

have been made and sustained.’ [Citation.] Evidence presented in opposition 

to summary judgment is liberally construed, with any doubts about the 

evidence resolved in favor of the party opposing the motion.” (Regents of 

University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) We also 

independently interpret written instruments where the interpretation does 

not turn on the credibility of extrinsic evidence. (Parsons v. Bristol 

Development Co. (1965) 62 Cal.2d 861, 865.)

3 The court’s order denying the Cables’s request for attorney fees is the 

subject of a separate appeal decided concurrently with this opinion. (Cable 

et al. v O’Neill (July 7, 2022, D079096) [nonpub. opn.].)
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However, “our review is governed by a fundamental principle of 

appellate procedure, namely, that ‘ “[a] judgment or order of the lower court 

is presumed correct,” ’ and thus, ‘ “error must be affirmatively shown.” ’ 

[Citation.] Under this principle, [the appellant] bear[s] the burden of 

establishing error on appeal, even though [the respondent] had the burden of 

proving its right to summary judgment before the trial court. [Citation.] For 

this reason, our review is limited to contentions adequately raised in the 

[appellant’s] briefs.” (Paslay v. State Farm General Ins. Co. (2016) 248 

Cal.App.4th 639, 644–645; Arnold v. Dignity Health (2020) 53 Cal.App.5th 

412, 423.)

B. O’Neill’s Deficient Brief Forfeits His Claims on Appeal

O’Neill’s opening brief is deficient in a number of respects. The legal 

argument section includes a single heading stating that the trial court 

“ignored multiple triable issues of fact and misapplied the parol evidence 

rule . . . as well as the fraud exceptions to the parol[ ] evidence rule.” 

(Bolding & capitalization omitted.) After quoting the court’s minute order at 

length, O’Neill states that the court did not discuss his affirmative defense 

that his consent and signature on “the fictional [p]romissory [n]ote and later, 

related, forbearance agreement” was obtained by fraud “rendering his 

consent and the agreements voidable at his election.” However, he provides 

no citation to the record to support a claim that his consent to either 

agreement was obtained by fraud. An appellant must cite to the record to 

direct the reviewing court to the pertinent evidence or other matters in the 

record that demonstrate reversible error. (Cal. Rules of Court, rule 

8.204(a)(1)(C).) “ ‘Issues do not have a life of their own: if they are not raised 

or supported by [substantive] argument or citation to authority, we consider 
12

the issues waived.’ ” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 

418 (Holden).)

O’Neill also fails to demonstrate that he properly raised the argument 

that consent was obtained by fraud in the trial court. To the contrary, the 

record shows that he did not address this affirmative defense in either of his 

opposition briefs to the summary judgment motion. O’Neill’s counsel first 

raised the issue during oral arguments at the hearing on the motion.

The trial court was not required to consider this issue because it was 

not fully developed or factually presented in O’Neill’s trial court briefs in a 

manner that would permit the Cables to provide a meaningful response. (See

American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 

1271, 1281 [“possible theories that were not fully developed or factually 

presented to the trial court cannot create a ‘triable issue’ ” for summary 

judgment].) As a general rule of motion practice, courts ordinarily do not 

consider new issues and evidence presented in reply papers because it 

deprives the opposing party of an opportunity to counter the argument. (Jay 

v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.) For the same reason, 

as a matter of fairness, courts may decline to consider issues raised for the 

first time at oral argument. (California Redevelopment Assn. v. Motosantos 

(2013) 212 Cal.App.4th 1457, 1500.) Because O’Neill did not adequately raise 

this issue in the trial court, he is precluded from raising the issue on appeal. 

(Holden, supra, 43 Cal.App.5th at p. 419.)

O’Neill also recites the court’s evidentiary rulings and observes that the 

rulings do not refer to the parol evidence rule, but “respectfully suggests, that 

it is clear that the [c]ourt improperly is using [the parol evidence rule] to 

exclude all of the triable issues of fact raised by [O’Neill], and thereby 

impermissibly granting summary judgment in spite of them.”
13

O’Neill describes, over several pages, general legal principles related to 

the parol evidence rule and exceptions to this rule based on fraud. He does 

not, however, analyze how these principles apply, if at all, to the facts of this 

case with proper citations to the record. Instead, he makes a broad 

conclusory statement that the court’s order granting summary judgment “had 

the practical effect of ignoring and impermissibly barring any and all 

evidence despite the authority cited above, and thereby prevented [O’Neill] 

from proffering his copious evidence proffered in his oppositions to the motion 

for summary judgment, which would have clearly established or at least 

raised triable issues of fact necessitating a denial of the motion, and provided 

[O’Neill] with his right to have those triable issues of fact tried before a jury.”

O’Neill does not explain what evidence was purportedly excluded. He 

does not analyze whether the court abused its discretion in its evidentiary 

rulings, and he does not demonstrate prejudice. Instead, he apparently 

expects this court to comb through the record or match up the evidence 

discussed in the factual history section of his brief to the legal principles 

listed and then analyze whether there is any support for his contention that 

the court should have considered parole evidence based on fraudulent 

inducement. We decline to do so. “[A]n appellant must supply the reviewing 

court with some cogent argument supported by legal analysis and citation to 

the record. Rather than scour the record unguided, we may decide that the 

appellant has forfeited a point urged on appeal when it is not supported by 

accurate citations to the record.” (WFG National Title Ins. Co. v. Wells Fargo 

Bank, N.A. (2020) 51 Cal.App.5th 881, 894; Cahill v. San Diego Gas & 

Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘We are not bound to develop 

appellants’ arguments for them’ ”]; Palm Springs Villas II Homeowners Assn.,

Inc. v. Parth (2016) 248 Cal.App.4th 268, 287, citing Del Real v. City of 
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Riverside (2002) 95 Cal.App.4th 761, 768 [it is not the reviewing court’s 

responsibility to search the appellate record for facts or to conduct legal 

research in search of authority to support the contentions on appeal].)

C. Summary Judgment Was Properly Granted

Even if we were to overlook O’Neill’s forfeiture based on his deficient 

brief, the record demonstrates that the trial court properly granted summary 

judgment because undisputed evidence establishes that the Cables are 

entitled to judgment based on breach of contract. The elements of a breach of 

contract action are “(1) the existence of the contract, (2) plaintiff's 

performance or excuse for nonperformance, (3) defendant’s breach, and (4) 

the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811, 821.)4

O’Neill does not dispute the existence of a written contract. Further, 

O’Neill has admitted in both discovery and in his pleadings that the Cables 

loaned him $100,000, that he agreed to repay the loan, that he entered into a 

second agreement to extend the debt payment, and that he has not made any 

payments on the loan after November 8, 2018. (Western Bagel Co., Inc. v. 

Superior Court (2021) 66 Cal.App.5th 649, 655, fn. 2 [a reviewing court may 

use statements and arguments in the parties’ filings as “ ‘ “reliable 

indications of a party’s position” ’ ” and “ ‘ “admissions against the party” ’ ”].)

O’Neill’s claim that a dispute exists about whether the money was a 

“loan” or instead, an “investment” is belied by the language of the agreement

4 The Cables’s second cause of action is a common count for money had 

and received, which is an alternative and simplified form of pleading 

indebtedness. The trial court did not reach this alternative cause of action 

because the court determined that the Cables were entitled to summary 

judgment based on the breach of contract cause of action. We need not 

address the alternative theory because we conclude that summary judgment 

was properly granted based on the breach of contract cause of action.
15

that O’Neill himself prepared. “The interpretation of a contract is a judicial

function. [Citation.] In engaging in this function, the trial court ‘give[s] 

effect to the mutual intention of the parties as it existed’ at the time the

contract was executed. (Civ. Code, § 1636.) Ordinarily, the objective intent of 

the contracting parties is a legal question determined solely by reference to 

the contract’s terms. (Civ. Code, § 1639 [‘[w]hen a contract is reduced to 

writing, the intention of the parties is to be ascertained from the writing 

alone, if possible . . .’]; Civ. Code, § 1638 [the ‘language of a contract is to 

govern its interpretation . . .’].)” (Wolf v. Walt Disney Pictures & Television

(2008) 162 Cal.App.4th 1107, 1125–1126.) Extrinsic evidence cannot be used 

to vary or contradict the unambiguous terms of a written, integrated contract

but may be admissible to aid in the interpretation of an ambiguous term.

(Ibid; Civ. Code, § 1856, subd. (a) [“Terms set forth in a writing intended by 

the parties as a final expression of their agreement with respect to the terms 

included therein may not be contradicted by evidence of a prior agreement or 

of a contemporaneous oral agreement”].) Even if there is uncertainty, “the 

language of a contract should be interpreted most strongly against the party 

who caused the uncertainty to exist.” (Civ. Code, § 1654; Victoria v. Superior 

Court (1985) 40 Cal.3d 734, 739 [“ambiguities in standard form contracts are

to be construed against the drafter”].)

The loan agreement states that the $100,000 that the Cables provided 

to O’Neill was a “loan” that he promised to repay with interest. The 

agreement includes an integration clause stating that the agreement 

“constitutes the entire agreement between parties and there are no further 

items or provisions, either oral or otherwise,” and further states that the 

agreement “may only be modified by a written instrument executed by both 

the Borrower and the Lender,” There is no ambiguity in this agreement that 
16

would require looking to extrinsic evidence to understand the intention of the 

parties.

In addition, it is worth noting that in the e-mail attaching the loan 

agreement, O’Neill stated that although the money was going to Kurn, “this 

loan and any other subsequent are to me and me alone” (Italics added.) The 

e-mail suggests that the Cables had not yet committed to going forward with 

an investment. O’Neill said that he was selling a home “so I will be sure to 

keep up the payment schedule and have the principal ready for you should 

you decide not to engage in our scuba venture.” (Italics added.) O’Neill refers

in his briefing on appeal to a portion of this e-mail that uses the word 

“investment,” but he omits the context. The word appears in a separate 

paragraph that begins by stating, “Also, if we do go forward know that I am 

in the process of securing a 2 million dollar life insurance policy.” It then 

states, “If we do go forward and something should happen to me Denise is 

going to be listed as a beneficiary on my policy which I will be sure to have it 

more than cover her investment amount.” (Italics added.) The context of the 

e-mail indicates that the $100,000 was a loan, and that O’Neill was 

considering arrangements to protect a potential future investment. As the 

trial court appropriately determined, there is no evidence of an investment 

agreement and any oral agreement for Denise to pay 25 percent of expenses 

in connection with the potential business venture would not release O’Neill 

from his obligation to repay the loan under the terms of the original loan 

agreement and the extension agreement, both of which he drafted.

Even if we were to accept O’Neill’s claim that Denise misled him to 

believe that the original loan agreement was a “fiction” required by James 

and/or to obscure from Kurn the fact that Denise had agreed to be a “silent 

investor,” a contract obtained by fraud is voidable, not void. A party who 
17

believes that he has been fraudulently induced to enter a contract must 

rescind. (Village Northridge Homeowners Assn. v. State Farm Fire Casualty 

Co. (2010) 50 Cal.4th 913, 921.)

O’Neill did not rescind the contract. Rather, he affirmed the loan by 

making payments required by the terms of the loan agreement and by 

preparing and executing the extension agreement in 2018, after the deal with 

Kurn had fallen through.

O’Neill acknowledged in the 2018 agreement that he “presently owes 

the creditors the sum of $100,000.00, said sum being presently due and 

payable,” and in consideration of their “forbearance” he agreed “to pay said 

debt on the extended terms” under certain conditions. This agreement 

ratified and waived any claim of fraud related to the first agreement. 

(Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 

144 Cal.App.4th 1175, 1192–1193 [“ ‘ “where a party, with full knowledge of 

all the material facts, does an act which indicates his intention to stand to 

the contract, and waive all right of action for fraud, he cannot maintain an 

action for the original wrong practiced upon him. Where the affirmance of the 

contract is equivalent to a ratification, all right of action is gone. . . . [Thus] 

where a party, with full knowledge, declines to repudiate a transaction 

known to him to be fraudulent, and fully and expressly ratifies it, he can 

neither rescind nor maintain an action for damages” ’ ”]; Schied v. Bodinson 

Mfg. Co. (1947) 79 Cal.App.2d 134, 142–143 [if the party purportedly 

defrauded “enters, after discovery of the fraud, into new arrangements or 

engagements concerning the subject-matter of the contract to which the fraud 

applies, he is deemed to have waived any claim for damages on account of the 

fraud” (italics omitted)].)
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For all of these reasons, summary judgment in favor of the Cables is 

appropriate.

DISPOSITION

The judgment is affirmed. Respondents are entitled to recover costs on 

appeal.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.