Judge Jon R. Takasugi, Case 20STCV47642 2022-08-24 Tentative Ruling

On 12/14/2020, Plaintiff Johnny Wilkes (Plaintiff) filed suit against the LA Clippers, LLC and Jerry West (collectively, Defendants). On 7/6/2022, Plaintiff filed a third amended complaint (TAC) alleging: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) promissory estoppel; (4) intentional misrepresentation; (5) concealment; and (6) false promise.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.)

Defendant argues that Plaintiff has failed to allege his fraud causes of action with the requisite specificity.

In California, fraud must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

Here, Plaintiff alleges intentional misrepresentation, concealment, and false promise.

Plaintiff’s intentional misrepresentation cause of action is based on an allegation that “[o]n or about April 10, 2019, continuing through September 2019, JERRY WEST consistently represented to Plaintiff that he was an agent of the CLIPPERS and had the authority to enter into agreements and make decisions on behalf of the CLIPPERS.” ( TAC ¶ 97). This is a conclusory allegation and does not identify any specific statement that could show that West represented himself to be an agent of the Clippers, as opposed to an independent contractor or consultant. Moreover, the allegation does not clarify whether the alleged representations were communicated via text message, telephone records, etc. Based on these failures, there are no facts which could show that West could have known that the representations were false, or that Plaintiff reasonably relied on those representations.

Plaintiff’s concealment cause of action is based on allegations that West consistently represented to Plaintiff that he was an agent of the Clippers, and actively failed to disclose facts that he was an independent contractor and did not have the authority to bind the Clippers and/or Steve Ballmer. (TAC ¶ 113.) In order to state a claim for concealment, Plaintiff must allege a duty to disclose. There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Hoffman v. 162 N. Wolfe LLC (2014) 228 Cal. App. 4th 1178, 1186.)

Here, Plaintiff has not alleged that he and West shared a fiduciary relationship, nor has he alleged facts which could show that West had exclusive knowledge of his relationship with the Clippers or that he made only “partial representations.” While Plaintiff alleges that West actively concealed material facts, this allegation is conclusory. Plaintiff must allege facts which could show that West made specific representations about being an agent of the Clippers. This, in turn, could show that West actively concealed material facts when representing his relationship with the Clippers.

Plaintiff’s false promise cause of action is based on allegations that West “consistently promised to Plaintiff that he was an agent of the CLIPPERS and had the authority to enter into agreements and make decisions on behalf of the CLIPPERS.” (TAC ¶ 113.) However, as set forth above, fraud causes of action must be pled with specificity. (Cansino, supra, 224 Cal.App.4th at p. 1469.) As such, Plaintiff must allege the specific promises that West allegedly made indicating that he was agent of the Clippers with the authority to bind the Clippers to decisions, and the manner in which those promises were communicated.

As such, West’s demurrer is properly sustained as to all three causes of action. West argues that leave to amend should be not be granted because Plaintiff’s new allegations are inconsistent with his past discovery responses, which are required to be complete. (CCP § 2030.220(a).) Indeed, West submitted verified interrogatory responses from Plaintiff which indicate that, throughout discovery, the only support identified by Plaintiff for his contention that Mr. West had the authority to enter into agreements and make decisions on behalf of the Clippers was that West had the apparent ability to make such decisions, and West consistently told Plaintiff that “Steve Ballmer would take care of him.” (Demurrer, 18:23-19:3.) West argues these responses are inconsistent with Plaintiff’s new allegation that West “consistently represented to Plaintiff that he was an agent of the CLIPPERS and had the authority to enter into agreements and make decisions on behalf of the CLIPPERS.” (TAC ¶¶ 97, 111, 123.)

The Court agrees. Plaintiff has not set forth any explanation as to why, after extensive litigation and discovery, Plaintiff only now alleges West “consistently” represented to Plaintiff that he was an agent of the Clippers. Given that Plaintiff failed to allege a single specific example of any affirmative statement by West, whether in person or in a written communications, representing that he was agent of the Clippers, the Court finds leave to amend would be futile. Moreover, as noted by Defendants in reply, Plaintiff’s own evidence submitted in opposition to Defendants’ motion for summary adjudication contradicts his contention that West made affirmative representations that he was an agent of the Clippers.

Based on the foregoing, Defendant’s demurrer is sustained, without leave to amend.

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Now, Defendants move for summary adjudication of the first, second, and third causes of action.[1]

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

In light of CCP 437c, subdivision (q), the Court declines to rule on any of the submitted objections.

Defendants argue that Plaintiff cannot establish his first three causes of action because Plaintiff cannot establish that an oral contract was formed or that Mr. West entered into an oral agreement on his own behalf or on behalf of the Clippers.

One of the essential elements of a contract is the consent of the parties, often referred to as the mutual assent of the parties, whereby there is a meeting of the minds. (Civ. Code § 1550.) “Although the terms of a contract need not be stated in the minutest detail, it ... must evidence a meeting of the minds upon the essential features of the agreement, and ... the scope of the duty and limits of acceptable performance [must be] sufficiently defined to provide a rational basis for the assessment of damages.” (Robinson & Wilson, Inc. v. Stone (1973) 35 Cal. App. 3d 396, 407.) “[F]ailure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract.” (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal. App. 4th 348, 359.)

Moreover, “[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 145, p. 169, citing Rest.2d Contracts, § 33; see also Mutz v. Wallace (1963) 214 Cal. App. 2d 100, 109; Richards v. Oliver (1958) 162 Cal. App. 2d 548, 561) “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Ladas v. CSAA (1993) 19 Cal. App. 4th 761, 770, quoting Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal. 2d 474, 481.)

Here, Defendants argue that there was never any agreement to pay Plaintiff $2.5 million, nor was there any meeting of the minds as to the specific help that Plaintiff would provide in exchange for payment. In support, Defendants submitted the following evidence:

- Plaintiff and West met for the first time at the Lexus Club at the Staples Center on April 10, 2019, during halftime of a basketball game at the end of the 2018-2019 NBA season. (SS ¶ 3.)

- In an effort to learn more about Leonard, West contacted Plaintiff in June 2019. (SS ¶ 6.)

- West spoke with Plaintiff on June 17 (for three minutes) and June 25, 2019 (for ten minutes). (SS ¶ 7.)

- Prior to June 26, 2019, Plaintiff only recalls he and West talking “about just Kawhi was a good kid and things like that.” (SS ¶ 8.)

- On June 26, 2019, West texted Plaintiff a photo of a billboard that Clippers fans put up along a freeway which featured a picture of Kawhi Leonard with the heading “King of SoCal” and the hashtag “#Kawhi2LAC.” (SS ¶ 9.)

- On June 26, 2019, West called Plaintiff and they had a three minute telephone call. Following the call, Plaintiff forwarded the pictures of the billboard that Clippers fans put along a freeway to Dennis Robertson. (SS ¶ 10.)

- Plaintiff admits that none of his contacts with West prior to June 28, 2019 resulted in a contract. (SS ¶ 11.)

- West’s phone bill records show that he received a call from Plaintiff on June 28, 2019 at 10:32. The call lasted for a total of 9 minutes. Plaintiff claims that he formed an oral contract with West during this call. (SS ¶ 12-13.)

- In deposition, Plaintiff admitted that he did not detail how he planned to help the Clippers sign Kawhi Leonard during this call:

Q. What did you tell Mr. West you were going to do to make the princely sum of $2.5 million?

Q. Just so I'm clear, as far as your understanding, what did you think Jerry West was going to be paying $2.5 million for?

Q. Just so I'm clear, in terms of help, had you told Jerry West that you were going to do anything?

Q. I don't have to understand anything. I'm asking you to listen to my question and answer my question. Did you tell Jerry West that you would do anything for $2.5 million?

- Plaintiff claims during this call he was not offering West any information and that he was just telling West what the “terms” would be for his alleged service: “I wasn’t pitching any information to Jerry. I was just pitching if he wanted me to help that this would be my terms and this would be for me to agree to help at that time.” (SS ¶ 14.)

- Plaintiff claims that during this call, Jerry West never agreed to pay him any cash: “Then after that, after they asked me how much, and me and Sam talked about it 2.5 and after that they were saying, We can’t give you cash, then we have to go through some 501 and things like that, so that’s what we talked about.” (SS ¶ 15)

- Plaintiff claims West never agreed to pay Plaintiff any amount of money but said “we could sit down and talk about it” and that Steve Ballmer would take care of Plaintiff. (SS ¶ 16)

A. He said we could sit down and talk about it. Let me rephrase that. They said yes. Because this is what they were pitching me all along, and Ballmer could take care of me, so it was stated Ballmer would take care of me, that's not a problem.

Q. I asked you what West's response was, and you said his response was "We can sit down and talk about it." Did he say that to you, yes or no?

A. He said a lot of things in that conversation that night. That was one of the things he said to me. A lot of other things said to me. I just wanted to be paid. So we were trying to figure out a way for me to get paid, and it was a lot of things said sir.

- Instead of telling West how he planned to “help,” Plaintiff claims that he was focused on being paid:

Q. You got on the phone with Jerry West. Tell me as best as you can recall exactly what you told Jerry West you wanted, word for word.

A. I can't tell you word for word, but it was (sic) I told him I wanted to be compensated.

- After the nine-minute call ended, West returned the call but was only able to leave two voicemail messages. West and Plaintiff did not speak via telephone for the rest of the day. (SS ¶ 19.)

- Plaintiff claims that he “helped” the Clippers by providing West with Dennis Robertson’s cell phone number on June 30, the day before a pre-arranged meeting between the Clippers and Leonard’s team. (SS ¶ 33.)

- West recalls telling Dennis Robertson that he looked forward to meeting with him and Leonard on July 1 at around 3 p.m. (SS ¶ 34.)

- On July 1 at 10:48 a.m., West called Plaintiff and left a voicemail message in which he offered to take Plaintiff and Sam Watson out to dinner. (SS ¶ 35.)

- On July 1, 2019 at 10:48 a.m, West sent Plaintiff a text at 11:48 a.m., thanking Wilkes for his help and stating if “(Leonard) went to the Lakers, he would be Lebrons (sic) caddy.” (SS ¶ 36.)

- On July 1 at 2:10 p.m., Plaintiff sent West a text message stating in part: I’m gonna tell you this is between the clippers and Toronto I know you guys meet with Dennis Kim and Kawai (sic) at 3PM at docs house fuck the Lakers it’s between you and Toronto please tell everyone to pitch life after basketball to Kawai that’s what he really wants to about how family also convince Dennis that the players you have a lots of upside. (SS ¶ 37.)

- Plaintiff did not attend the July 1, 2019 meeting between Leonard and the Clippers. (SS ¶ 38.)

- On July 4, 2019, West texted Plaintiff and asked “When can we expect a decision?”

Plaintiff responded: “Friday will call you later Will talk to Dennis again at 4pm.”

West responded: “If you reach him, it would help to know if he has any indication of his plans. We need to sign another player. Not many left. Not trying to put any pressure on you. Thank you for all your help.”

West added: “Don’t have a good feeling about him coming to LA I think he will stay in Toronto, we have done everything to make him have a great life in the future, I only want the best for him and his family. He is a great young man.”

- There were no text messages or telephone calls between Plaintiff and West on July 5 and 6, 2019. (SS ¶ 40.)

- West arranged lunch with Plaintiff, Sam Watson, and sports announcer Jim Gray at E. Baldi restaurant in Beverly Hills on July 23, 2019. Near the end of their lunch, either Plaintiff or Watson handed West a letter which detailed a number of requests by Plaintiff. Later, Plaintiff emailed a copy of the letter to Jim Gray who sent it to West. (SS ¶ 42.) The letter read in part:

Over the past 2 years, Johnny Wileks (sic) worked with Kawhi to position his need to come “back home” so that it was specifically as a member of the “LA Clippers.” Johnny consistently pursued several networking opportunities where he then became a center of influence for Kawhi Leonard. Therefore, representing the interest of the LA Clippers. The 2-year network building investment was close to $200,000 used for air travel; hotel; cars etc. in networking “to bring Kawi(sic) home.” With that in mind, I am asking for a cash infusion to a non-profit or a Trust of $2.5 Million which equals the commission given to an NBA agent who on average gets about 2-2.5% of the payer’s signing contract.

- Defendants note that despite Plaintiff’s contention that he was involved in a so-called two year campaign “to bring Kawahi home,” West had only met Plaintiff three months earlier in April, and Plaintiff does not even allege a contract was formed until the June 28 phone-call. Moreover, during his deposition and in response to the Clippers’ written discovery, Plaintiff admitted that West did not ask him to spend money, travel or incur any of these expenses. (See Exh. A (Wilkes Depo. 283: 7-11); Exh. C and Exh. D (Clippers’ Request for Admission No. 21; Plaintiff’s Response to Clippers’ Request for Admission No. 21).

- Nearly a year later, on July 10, 2020, Plaintiff sent West a text message regarding his interactions with Watson and West which he described as “a negotiation that has become a concern to me.” Plaintiff complained that Watson had insulted his intelligence. Plaintiff also claimed he would like to come “up with a solution which is best for all parties involved.” (SS ¶ 43.)

Taken together, Defendants’ evidence supports a reasonable inference that no oral contract was formed because neither side of the transaction extended a promise that was sufficiently definite, and there was no assent on all material points of the agreement. (Ladas, supra, 19 Cal. App. 4th at p. 770.)

Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact. In opposition, Plaintiff submitted evidence which included the following:

- Plaintiff added to his deposition testimony by way of an errata sheet the following:

Q. I don't have to understand anything. I'm asking you to listen to my question and answer my question. Did you tell Jerry West that you would do anything for $2.5 million?

- Plaintiff provided West with inside information that was not privy to West or anyone else other than Kawhi Leonard and his camp. Specifically, Plaintiff told West that in order to convince Kawhi to sign with the Clippers, the Clippers need to pitch to Kawhi the following in an extremely detailed fashion: (1) Kawhi Leonard will have a great life as a Clipper and after basketball if he signs with the Clippers; (2) explain, emphasize and demonstrate in substantial detail that the Clippers’ roster at the time possessed a great deal of upside and would be around for years to come; and (3) the Clippers will do whatever it takes to compete with the Los Angeles Lakers and Lebron James, such as acquiring another star to play alongside Kawhi Leonard; specifically Paul George, who the Clippers acquired on July 10, 2019, three days after Kawhi Leonard signed with the Clippers. (RSS ¶ 17.)

- On or about July 4, 2019, at the direction of West, Plaintiff informed Dennis that if Kawhi Leonard signed with the Clippers: (1) Dennis would receive a house in Southern California; (2) Dennis would receive a travel expense account; (3) Steve Ballmer would fund a $100,000,000.00 marketing campaign for Kawhi Leonard; (4) Clippers would provide sponsorship opportunities for Kawhi. (RSS ¶ 17.)

Taken together, the evidence does not support a reasonable inference that the terms of the oral contract were sufficiently certain to “provide a basis for determining what obligations the parties have agreed to” or to “make possible a determination of whether those agreed obligations have been breached.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) Plaintiff alleges that the oral contract was formed on the June 28 call. Plaintiff himself admits that during that call he “…wasn’t pitching any information to Jerry. I was just pitching if he wanted me to help that this would be my terms and this would be for me to agree to help at that time.” (SS ¶ 17.) While Plaintiff filed a notice of errata indicating that ways in which he would help were “discussed previously,” Plaintiff has still not submitted any evidence to indicate what those discussions looked like, or what, if any, types of help were agreed to. For example, did Plaintiff agree to provide West with Robertson’s phone number? Was he going to act as a conduit for communications between the parties? Was he going to try to convince Robertson that Mr. Leonard should become a Clipper? Was he going to speak to Mr. Leonard himself? Put another way, Plaintiff has not submitted any evidence that shows what he agreed to do in exchange for any payment, or that there was ever any shared understanding as to the essential structure of the agreement.

In Bustamante v. Intuit, Inc. (2006) 141 Cal. App. 4th 199, 209, the court upheld a grant of summary judgment to a defendant on a breach of contract action claim because the undisputed facts showed “no meeting of the minds as to the essential structure and operation of the alleged joint venture, even if there was agreement on some of the terms.” (Id. at p. 215.) There, the plaintiff claimed the parties entered into an oral agreement to establish a company in Mexico based on promises to take all steps necessary to obtain adequate funding and to formally launch the company. (Id. at p. 210.) The trial court found the conditions for performance were fatally uncertain because the agreement did not answer such key questions as: “But what steps are “necessary”? How can it be ascertained whether a party has complied with this term? How long were they required to continue seeking “adequate funding”? (Ibid.)

Here, the agreement suffers from similar uncertainties. While Plaintiff has submitted evidence of forms of help he provided to Mr. West after the fact, Plaintiff has not submitted any evidence to establish that these were the material acts he agreed to perform. As such, there is no way to know what types of help Plaintiff was required to provide under the contract, and whether or not that help was performed. Moreover, even assuming Plaintiff did promise to offer help, a generalized offer to help, like the generalized offer in Bustamante to take all steps necessary to obtain funding and launch the company, is uncertain because it provides no way to determine whether or not Plaintiff has complied with his obligation to “help.”

There is also uncertainty as to what compensation was agreed to. In deposition, Plaintiff stated that during the June 28 phone call he told Mr. West he wanted to be compensated for his services, and that, in response, Mr. West stated that “Ballmer would take care of me.” (“He said we could sit down and talk about it. Let me rephrase that. They said yes. Because this is what they were pitching me all along, and Ballmer could take care of me, so it was stated Ballmer would take care of me, that's not a problem.”) (SS ¶ 16.) When pushed on the specifics of compensation, Plaintiff again stated:

Q. You got on the phone with Jerry West. Tell me as best as you can recall exactly what you told Jerry West you wanted, word for word.

A. I can't tell you word for word, but it was (sic) I told him I wanted to be compensated.

In Barton v. Elexys Intern., Inc. (1998) 62 Cal App 4th 1182, the vice president of an electronics company was terminated as part of a restructuring and given a severance package which included benefits and salary for 12 months. He attempted to exercise stock options six months after he was terminated, but was told his options had lapsed. He brought an action to enforce his stock options and claimed that his written stock option agreement was modified by oral representations by the company CEO at the time he signed his severance agreement that “key executives would be taken care of.” (Ibid., emphasis added.) The Court disagreed and found that oral statement was “too vague and uncertain to support a claim that the parties’ written stock options agreements had been modified thereby.” (Id. at p. 1190.)

Here, similarly, when pressed for the precise promise of compensation, Plaintiff states that he told Mr. West he wanted to be compensated, that they were “trying to figure out a way for [Plaintiff] to get paid”, and that “Ballmer would take of him.” Just as in Barton, the court finds this oral statement too vague and uncertain to support a claim that Mr. West (either in his personal capacity or on behalf of the Clippers) promised to pay Plaintiff $2.5 million for his help.

Taken together, the evidence does not indicate that a contract with sufficiently certain terms was formed to be enforceable. Even viewed in the light most favorable to Plaintiff, his evidence of an oral contract still leaves fundamental questions as to what help he agreed to provide, and what was agreed to be provided in exchange for that help. As such, there is no basis for determining what obligations the parties agreed to with respect to the oral contract, and no basis for determining whether any or all of those agreed obligations were breached. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)

In Bustamante, supra, not only did the Court find the alleged agreement too indefinite to be enforceable, but it determined that the “objective manifestations of the parties” demonstrated that the parties actually chose not to bind themselves until a subsequent agreement was made.” (Id. at p. 213.) The Court noted that the parties discussed their intended relationship in various e-mail communications and that together with the parties’ declarations, that evidence permitted a determination that no contract was formed as a matter of law. (Id. at p. 214.)

Here, similarly, the parties voicemails, text messages, and correspondence evince no intent to form a contract in which Plaintiff would be paid $2.5 million. As for Mr. West, the evidence does not support an understanding that an agreement had been formed in any message. Instead, after receiving Robertson’s phone number, West only offered to take Plaintiff and Watson (if he was available) out to dinner. As for Plaintiff, the evidence similarly does not support an understanding of a binding agreement. The letter that Plaintiff delivered to West at the E Baldi restaurant on July 23, 2019—days after Leonard signed with the Clippers—does not reference any contractual agreement but instead asks for a donation:

With that in mind, I am asking for a cash infusion to a non-profit or a Trust of $2.5 Million which equals the commission given to an NBA agent who on average gets about 2-2.5% of the player’s signing contract.

Plaintiff’s only explanation as to why, in this letter, he did not state that there was any type of contract was: “I don’t think that it would be appropriate to say in that type of way in a letter that you promised me 2.5 million.” (Exh. A, Plaintiff Depo., 123: 23-25.)

Moreover, nearly a year later, after West had failed to pay him the $2.5 million allegedly due, Plaintiff still avoided using the term “contract.” On July 10, 2020, Plaintiff sent West a text message simply referring to his earlier interactions as a “negotiation.” (SS ¶ 43.)

Taken together, the evidence indicates that the alleged oral agreement is invalid because of the absence of any clear and definite agreement as to two material terms of the alleged oral contract: (i) the services Plaintiff would provide to “help” the Clippers sign Leonard and (ii) the compensation that Plaintiff would be provided for rendering those services.

In opposition and surreply, Plaintiff argues that Defendants are improperly focusing only on bilateral contracts, rather than an implied-in-fact contract or a unilateral contract.

A unilateral contract is one in which no promisor receives a promise as consideration for his promise. (See Smith v. Hermann (1962) 199 Cal. App. 2d 748, 753–754, In his moving papers, Plaintiff seems to assume that all he needs to establish a triable issue of fact as to the formation of a unilateral contract is that a promise was made to pay him $2.5 million dollars. However, to be an enforceable unilateral contract, the promise has to be accompanied by some articulated or known act or forbearance. (See People v. Mohammed (2008) 162 Cal.App.4th 920, 932.) This is because only where the specific performance or forbearance is known can the performance or forbearance constitute bargained-for consideration. For example, if a homeowner promises to pay a gardener if he weeds his yard, the gardener can accept the offer, and create a binding unilateral contract, by appearing at the house and weeding the yard. However, it would need to be clear that the homeowner was asking for help in the form of his garden being weeded, as opposed to some other act, in order for the gardener’s performance of weeding the yard to form a binding unilateral contract. In other words, in order to be a valid offer, the type of performance which can constitute acceptance needs to be clear. Otherwise, there has not been a meeting of the minds. (Civ. Code § 1550.)

Here, as already stated, Plaintiff himself admits that he did not tell Mr. West how he planned to “help” the Clippers sign Leonard on the nine-minute phone call he had with Mr. West on June 28, 2019. (SS ¶ 43.) Nor did Plaintiff submit evidence that Mr. West specified ways in which Plaintiff could or should help. Rather, Plaintiff said the call was strictly about financial matters. Plaintiff states they had “previously discussed” ways he could help but did not submit evidence to indicate the content of those discussions. As such, by Plaintiff’s own admission, there is no evidence to indicate that Mr. West made a unilateral promise in the June 28 phone call to pay $2.5 million “in exchange for some act” because they did not discuss ways he could help on that phone call (Mohammed, supra, 162 Cal.App.4th at p. 932.) Without a meeting of the minds on all material points of the contract, and without an articulation of what performance constituted acceptance of the offer, Plaintiff could not have accepted the offer through performance. (Banner Entertainment, Inc., supra, 62 Cal.App.4th at p. 359.) Simply put, the evidence does not support a reasonable inference that Plaintiff entered into a unilateral contract to perform any act in consideration of a promise for $2.5 million.

An implied-in-fact contract is determined by the “…acts and conduct of the parties and all the surrounding circumstances involved….” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 611.) While typically a question of fact, “[w]here the undisputed facts negate the existence of implied-in-fact [] contract or the breach of the contract claimed, summary judgment is proper.” (Ibid.) Here, the evidence does not support a reasonable inference that an implied-in-fact contract to pay Plaintiff $2.5 million was formed.

As set forth above, the evidence does not support a reasonable inference that Plaintiff entered into a bilateral contract because he admits he did not make any specific promise to perform in the June 28, 2019 call. Similarly, the evidence does not support a reasonable inference that Mr. West made a promise to pay $2.5 million in exchange for some act by Plaintiff (because, again, they did not discuss ways Plaintiff could help on the call). As such, the question becomes whether there was other conduct which could have given rise to an implied-in- fact contract. The only reasonable inference supported by the evidence is that there was not. Plaintiff stated that during the June 28 call, Mr. West, in response to his request for $2.5 million, told Plaintiff they could “sit down and talk about it.” (SS ¶ 14.) Then, later, when Plaintiff confronted Mr. West after Leonard signed to the Clippers, he did not state that he was owed $2.5 million or demand $2.5 million pursuant to any agreement. Rather, he referred to their earlier conversations as “negotiations” and then asked for a $2.5 donation with “that in mind”. (SS ¶ 42.) Accordingly, even looking at the acts and conduct of the parties, the only reasonable inference supported by the evidence is that there was not an agreement for Plaintiff to be paid $2.5 million in exchange for an act or forbearance, nor did Plaintiff promise to perform specific services in exchange for $2.5 million.

Causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing require the existence of a valid contract. Accordingly, based on the analysis above, summary adjudication can be granted as to the first two causes of action. This leaves the third cause of action for promissory estoppel.

While promissory estoppel offers equitable relief where a valid contract was not formed but there was actual reliance, promissory estoppel requires that the promise “be definite and certain in its terms” to be actionable. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal. App. 4th 1150, 1178.) (Loan servicer’s alleged oral agreement to grant a loan modification was insufficiently clear and unambiguous to support a promissory estoppel claim, where the agreement did not include the essential terms of a loan agreement.)

In White v. J.P. Morgan Chase, Inc. (E.D. Cal. 2016). 167 F. Supp. 3d 1108, 1113, the court concluded that a promise from Chase Bank that plaintiff would be able to make a loan modification did not give rise to a promissory estoppel claim because it was missing essential terms, such as “payment schedules for each loan, identification of the security, prepayment conditions, terms for interest calculations, loan disbursement procedures, and rights and remedies of the parties in case of default.” (Ibid.)

Similarly, here, as set forth above, neither Plaintiff’s “offer’” nor West’s “promise” contained any specifics or essential contract terms indicating what Plaintiff might do in exchange for $2.5 million, or indicating that West or the Clippers would pay Plaintiff $2.5 million. Thus, just as in Daniels and White, the evidence of West’s alleged promise is too uncertain to create a triable issue of material fact as to the promissory estoppel cause of action.

Moreover, Plaintiff has not submitted evidence that supports a reasonable inference of reliance. Plaintiff claims that he was in talks with the Lakers in 2019 and gave up the opportunity to have earned $2 million from the Lakers instead. In support, Plaintiff submitted the transcript of a voicemail from Magic Johnson which stated:

Hey, tell Kawhi let’s go and win these next 7, or 6 championships in the next 10 years, you know, with the Lakers. Him, LeBron, and AD? Man, that’s 6 or 7 championships in the next 10 years. He’ll be… he’ll have his statue right outside of Staples Center, man. And, make… he’ll probably be a billionaire, and that’s what I’m predicting. With the Lakers? Whoo, it’ll be amazing. Alright, bye.

This voicemail falls far short of supporting a reasonable inference that Plaintiff turned down an opportunity to make $2 million to provide services to the Lakers in reliance on any agreement with Jerry West or the Clippers.

Given the Court’s conclusion that no triable issue of fact exists as to whether or not an oral contact was formed or whether there was actual reliance on a clear and certain promise, the Court need not reach the questions of whether or not Jerry West had authority to bind the Clippers to the oral agreement, or whether or not he assumed any obligation in his personal capacity.

Based on the foregoing, Defendants’ motion for summary adjudication is granted.

[1] Defendants filed their motion before Plaintiff filed a TAC asserting three new fraud causes of action. Accordingly, while Defendants’ motion was a motion for summary judgment at the time, the Court characterizes it now as a motion for summary adjudication given that it would no longer dispose of this action if granted.