Malimos v. Malibu Pier Partners

Filed 12/2/09 Malimos v. Malibu Pier Partners CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Malimos, L.L.C. (Malimos) appeals from the judgment entered for defendant Malibu Pier Partners, L.L.C. (MPP) after MPPs motion for summary judgment was granted on Malimoss first amended complaint for damages arising out of negotiations between the parties for a food and beverage concession at the Malibu Pier (Pier). Malimos contends that the court erred in granting summary judgment on its causes of action for breach of contract, promissory estoppel, and unjust enrichment. We disagree and affirm the judgment.

I. FACTS

MPP is the master concessionaire at the Pier under a contract with the Department of Parks and Recreation (DPR). The master concessionaire agreement requires DPR approval of agreements between MPP and sub-concessionaires. Malimoss members, through a different entity, own Mos Restaurant (Mos) in Burbank, which began providing summer weekend food service at the Pier in 2003 and 2004. In 2005, MPP and Malimos began negotiations for a sub-concession agreement under which Malimos would operate up to three restaurants, in Buildings A, B, and C at the Pier, for a 20-year term. Mos continued to provide seasonal food service at the Pier in 2005 and 2006 in anticipation of Malimos becoming the long-term food and beverage sub-concessionaire.

In April 2005, Alexander Leff, MPPs managing member, sent an e-mail to Jay Sadofsky, Malimoss managing member, attaching a revised term sheet for the long-term contract, and stating, It was a pleasure meeting with you last week, I came away feeling that we could all work together easily and successfully. This did not prove to be the case.

On June 9, 2005, Leff wrote an e-mail to Brad Caplow, Malimoss designer, stating that Leff and Mark Stevens, MPPs architect, were favorably impressed with drawings Caplow had provided, but need[ed] a more unified presentation document to show the State on June 15. Sadofsky e-mailed Leff on June 14, 2005, advising that slightly modified plans for buildings A, B, and C would be delivered the next day. Sadofsky wrote, I know you are still uneasy with our team[]s capacity to accomplish this project[,] and I hope that the combination of these plans, which I think show a tremendous capacity to respond quickly and intelligently to a request, and the resumes which we have forwarded to you, will put you at ease. Sadofsky declared in opposition to the motion for summary judgment that MPP submitted Malimoss plans to the DPR on June 15, 2005, and that the DPR approved them.

On July 21, 2005, Sadofsky e-mailed Leff stating: Pursuant to our conversation, I will look for a draft of the final contract [today]. . . . [] I have also asked Brad to complete sketches, for the state, of the proposed historical architectural changes to the pier. We will have this done by the end of next week. . . . [] . . . [] We are also awaiting your proposed parking plan for the pier. [] Lastly, as we discussed yesterday, as soon as we complete the contract, we need to schedule a meeting where both groups (MPP and Malimos) sit down and discuss the time frame, scheduling and reporting for this project.

On August 1, 2005, Leff e-mailed Malimoss counsel, Brian Kesluk, a 29-page, single-spaced Sub-Concession Contract between MPP and Malimos dated as of July 21, 2005. Leff e-mailed Sadofsky that day attaching a form Malimos would need to submit for DPR approval of Malimos as sub-concessionaire, and a timeline for the project with a target opening date of April 1, 2006. Leff said that he looked forward to Sadofskys comments on the contract, and that [i]t feels good to finally get underway.

Some months elapsed without any relevant correspondence in the record. On February 3, 2006, Leff e-mailed Sadofsky stating: I would like to move ahead and finalize a deal with your group. [] I have a suggestion. Why dont I come down with Michael Dellar of Lark Creek [Restaurant Group, a MPP member] (who is a sensible guy who has been advising me on food and beverage issues) and meet with you and your partners. We will put everything on the table and see if we can resolve things. [] I will provide you with a parking plan, an update on the progress with Coastal approval for outside seating, and clarity on the LLC. You provide an updated concept statement for the food and beverage operations (setting forth your plans for the restaurant, bar, caf, special events, etc[.]), a financial pro forma, and a sample menu. I will send you the latest plans from Mark Stevens. I will go back to the Sub-Concession Agreement and revise it to include our last conversations . . . .

Leff and Dellar met with Sadofsky and Bruce Hecker of Malimos at Mos restaurant on February 15, 2006. After dining at Mos, talking with Sadofsky and Hecker, and reviewing documents they provided, Leff and Dellar excused themselves and Dellar told Leff that he had formed a favorable opinion of Sadofsky and Heckers operations. Sadofsky recalled that when Leff and Dellar returned to the table, Leff put out his hand and exclaimed, Michael (Dellar) thinks you have the wherewithal to be successful, we have a deal. We then shook hands. On February 16, 2006, Jeff Bonhach, a consultant to MPP on the Pier, e-mailed Leff and asked how the meeting turned out. Leff replied, Dellar thinks they will be fine. We made the deal. . . . On February 17, 2006, Kesluk wrote an e-mail to Leff stating: I hear things went well. At this point, I would like to get something in writing that both parties can sign so that we can move forward without delay. Alternatively, we could sign the contract with language that indicates where terms are uncertain / or yet to be determined both parties acknowledge that, despite these uncertainties, we are moving forward with the project in good faith, as time is of the essence.

On February 23, 2006, Leff e-mailed Sadofsky saying, I am excited and relieved about our deal. . . . [] I am trying to expedite getting the deal done so that you guys can move forward. . . . [] . . . [] I am lucky that you guys have had the patience to persevere with me and the project. I promise that I will be much easier to deal with as a landlord than as the nervous Nellie that you have seen up to now. On February 23, 2006, Leff e-mailed Kesluk indicating that he and Sadofsky had gone through the contract in detail that morning, and were in agreement on the changes. Leff said that he thought his attorney should be able to turn around an executable contract next week. On March 1, 2006, Leff e-mailed Kesluk stating that the contract would be ready in the next week or so. To paraphrase the late Wilson Pickett, hold on, its coming.

On March 2, 2006, Sadofsky e-mailed Leff stating, I would like to reiterate both how excited and prepared my group is to proceed forward on the Malibu Pier Project. . . . [] For my group to proceed forward immediately, I need one critical thing from you. I need you to immediately introduce us to the State as your sub-concessionaire of the restaurants. . . . [] . . . [] If we are to accomplish building the restaurant and patios quickly we need the State to approve us as a group and review and approve our plans. [] I understand that they have approved Mark Stevens[] plans, but those are not our plans. [] I recognize that Mark is an accomplished architect and I am sure that his plans would make a fine restaurant but I have had our plans since October, when you ask[ed] me to draw them, and this is the restaurant and patio that my group is willing to spend millions of dollars to build. [] I know that the contract is going to take a few weeks to finalize. You and I have agreed on all significant business points and agreed to negotiate in good faith on any remaining issues. [] If you agree that this is the case and you want to see this project be completed by my group, then you need to introduce us to the State and let us get to work. [] Until this happens any further work on our part seems pointless.

Leff sent Sadofsky a revised contract on March 6, 2006. Sadofsky responded on March 13, 2006, I have reviewed your most recent sub-concessionaire contract. I am confident, that although there are a few points that I think need clarification or alteration, we can come to agreement on all contractual terms, with the exception of one. [] Unfortunately the contract terms that remain unacceptable are those regarding parking and the resulting Coastal Commission approval. [] These are issues that have remained unanswered since our very first conversation. . . . [] . . . [] Unfortunately until these issues are completed I do not see any point in spending any more time negotiating or working on anything else. On March 20, 2006, Kesluk e-mailed Leff advising that our group met over the weekend to gauge our resolve moving forward despite the lack of clarity on material issues . . . . [] Despite our concerns . . . we are prepared to spend the millions of dollars needed to design, construct, furnish and staff Building A and B and their surrounding patios, but the timing for completion creates some significant issues . . . we cannot risk the type of financial hemorrhaging that would result if we attempted to open during the winter months.

Leff sent Sadofsky an e-mail on March 27, 2006, thanking him for spending time finalizing the deal points, and listing remaining open issues. Leff said, I want to reiterate how important it is to keep the architectural design process moving forward expeditiously. If DPR becomes upset with us because we are not getting them revised plans and working drawings in a timely manner, it will be very difficult to negotiate with them about extending the opening date of the Building A restaurant. We need to keep DPR happy. On April 4, 2006, Leff e-mailed Kesluk and expressed frustration that Stevens had not received drawings from Caplow; on April 5, 2006, Kesluk replied that [t]he frustration would end if we were introduced to the State so that we could have direct, meaningful discussions about allowable design changes. Kesluk sent Leff an April 6, 2006 e-mail setting forth a new term for the agreement in addition to the 3-4 modifications previously discussed. Leff answered that day, Any suggestion that we change major terms at this point is going to kill the deal. If we do not get to agreement on the contract this week, I need to proceed without you.

On April 18, 2006, Kesluk e-mailed Leff stating: Subsequent to our conversation of 4/6 you were to make the appropriate changes to the sub-c agreement and forward a revised contract for review with my group. . . . [] . . . I have counseled all parties to stand down from performing any efforts on behalf of the pier until we have a signed agreement. On May 26, 2006, Kesluk e-mailed Leff stating: I have just left messages for you at both your office and cellphone. This is the third time our group has walked down the aisle with you. On 2 previous occasions you have disappeared and left us stranded at the altar. If I do not receive the promised contract today, I can assure you that we will not be doing any further business together.

Leff faxed a revised contract to Kesluks office on May 27, 2006. The printed contract was modified with handwritten changes, and signed by Leff on behalf of MPP. In his declaration, Sadofsky states that I was prepared to sign and return the agreement with the agreed upon deposit. However, Leff told me to hold off doing so because he wanted to have a clean execution copy to present to the DPR. On May 30, 2006, Leff sent Kesluk a proposed trademark sublicense agreement, and other items missing from the contract in the May 27 transmittal, and offered to have the contract typed into a final document now.

Kesluk e-mailed Leff on June 1, 2006, stating that he was plodding through the contract, and listing 12 changes that need to be made. Leff e-mailed Sadofsky on June 2, 2006, saying: Hopefully the fact that I executed a Sub[-]Concession Agreement and delivered it to you provides your group with some comfort that we will have a deal. Brian [Kesluk] and I are still talking over some relatively minor issues but I am confident these can be resolved shortly. . . . [] . . . [] I urge you to finalize your architectural, structural, and engineering plans for Buildings A and B so that we can submit them to DPR . . . . On June 16, 2006, Sadofsky e-mailed Leff to report on our progress at the pier, and Leff responded stating that he would have execution copies of the Sub Concession next week. Sadofsky e-mailed Leff on July 12, 2006, saying that [w]e have completed much of the difficult work and if we can get through the approval process with the State, I think we can begin building in September.

On July 19, 2006, Leff sent Sadofsky what I hope will be the final version of the Sub Concession Contract, which was 35 single-spaced pages long and dated as of July 18, 2006. Kesluk e-mailed Leff on July 30, 2006, saying that the contract d[id] not adequately deal with the revisions suggested in my e-mail of 6/1/06. The e-mail detailed issues that need[ed] to be resolved before we check for dotted Is and crossed T[]s. Leff replied that day, saying I disagree. Kesluk responded the next day: Please explain what you disagree with[.] These matters have been negotiated over the last 18 months and everything laid out in my e-mail is consistent with our agreement. We are spending money daily relying on the fact that our group is going forward. Tomorrow, we are scheduled for a meeting with engineers and architects on the pier. Should we stop??? Kesluk followed up with another e-mail to Leff on July 31, 2006, saying: Ive re-read my e-mail of yesterday and every word is consistent with the assumptions we have been working on during our negotiations. These issues seem clear on their face. If you are now going to propose a new agreement based on different assumptions not previously addressed, spell them out, in writing, for consideration by my group. If these new terms are equitable, I will advise my group accordingly. [] In the interim, unless I hear differently, I will tell my group to stand down and cancel all meetings in furtherance of the agreement.

Leff e-mailed Kesluk on August 3, 2006, stating that he was going to mark up our agreed upon changes by hand and send it to you. [] . . . [] I have not decided about your request for a Stipulated Judgment. We have had our proposed structure regarding your termination rights in place for quite some time―heavily negotiated and agreed to by both sidesand it is distressing to have a new issue brought up at the last moment. Leff sent Kesluk a revised contract with handwritten changes on August 4, 2006. Kesluk e-mailed Leff on August 5, 2006, asking for a parking management agreement so that we can review and handle all contract matters at the same time. Kesluk e-mailed Leff on August 12, 2006, listing eleven [c]hanges and comments concerning the sub-concession contract. Leff replied, Before I look all of this over, are you telling me that these are the only remaining issues and, if they are resolved, your group is ready to execute the Contract? Kesluk answered, Yes.

On August 30, 2006, Kesluk e-mailed Leff and said, At this point, we need to finalize terms and get a signed contract as we continue to spend considerable funds as if we are going forward. The next day, Kesluk e-mailed Leff saying: You are conspicuous by your silence. We have been meeting with groups re: marketing and advertising. A budget must be set and we must retain their services. We are being forced to provide contracts for both our chef and intended General Manager. We have name clearances, trademark, and service mark issues that need to be addressed. [] Time is of the essence. When will you be available to discuss outstanding terms presented to you in my e-mail of Aug. 12th?

On September 1, 2006, Leff sent Kesluk a revised contract dated as of September 15, 2006, with further changes marked. The cover e-mail stated: As we discussed, attached is a hand mark up of the Sub Concession Contract which attempts to respond to your issues of August 12th. . . . [] By the way and for the record, the Sub Concession Contract that I signed and then both faxed and emailed to you and [Sadofsky] on May 27, 2006 has never been accepted by your group and thus I hereby withdraw that offer. [] We will see if we can get to the finish line on this new draft.

On September 2, 2006, Kesluk e-mailed Leff saying, We will not give up the parking lot cart―not negotiable. We had an agreement on the parking lot cart at all times after you unilaterally took [Building] C away from our group. Before I spend any further time on this, please respond as to your intentions on this matter. On September 4, 2006, Kesluk e-mailed Leff listing comments on the contract, and urging [l]ets get to a final draft ASAP. One of the points of disagreement was over common area maintenance charges. Kesluk calculated Malimoss share of the charges at 58%, however, in an attempt to finalize this discussion, I will agree to 60%. Kesluk also asked that the parking lot cart provisions be reinstated.

On September 4, 2006, Leff responded to Kesluks comments, and attached another draft of the sub-concession contract with further changes marked. Leff agreed to withdraw proposed revisions pertaining to the parking lot cart, and to reduce Malimoss share of the maintenance charges from 75 percent to 66 percent. Leff told Kesluk, 66% is more than fair to youyou have the most valuable buildings, as you have always told me you will be generating the lions share of Pier visitors, and you are not being charged any additional pro rata share for your parking lot cart or your other food carts.

Kesluk e-mailed Leff on September 18, 2006, asking for an update on the final draft of the sub-c agreement. On September 20, 2006, Kesluk e-mailed Leff saying, We need a finalized, signed sub-c agreement today. Our group needs to sign promised employment contracts with our key people including our general manager and master chef. Our performance expectations revolve around securing these people to long term agreements. Additionally, we need to utilize the time from now til opening for marketing, staffing and the securing of appropriate service and trademarks. For our group to deliver as promised, we simply cannot wait another day. [] We have an agreement on terms subject to your recent disclosure that the existing septic system may not be suitable for the intended uses for the pier as outlined in the sub-c agreement and the State/Concessionaire Master Contract. The parties agree in good faith to move forward with the planning and preliminary stages for the approved construction of building A and B subject to resolution with the State as to whether the States failure to deliver a suitable septic system creates a material breach and an impossibility of performance. [] . . . [] We need your response today.

Leff replied to Kesluk that day, The problems never seem to end. The State Fire Marshall now says that the occupancy limit on the 2nd Floor of Building C . . . is a maximum of 10 people. . . . [] I am trying to get in touch with my attorney to get his thoughts on both this and the waste water treatment system deficiencies.

Kesluk broke off negotiations in a September 22, 2006, e-mail to Leff, which stated: Your latest disappearing act has placed me in an untenable position. I will move the courts for the appropriate remedies against both MPP and Alex Leff personally . . . . [] Your actions throughout have been designed to induce our group to dedicate invaluable amounts of time, effort and money in an attempt to jump through imaginary hoops of your own creation. This will no longer be tolerated.

In his deposition, Sadofsky acknowledged that Malimos did not sign the contract Leff forwarded on September 4, 2006. He was then asked, This draft agreement isnt accepted by Malimos; correct? He answered, Correct. In his declaration, Sadofsky stated that the contract forwarded on September 4, 2006 was the final iteration of our sub[-]concession contract that represented complete agreement between MPP and Malimos on all issues. Malimos conveyed complete agreement on each and every term and waited for the execution copies to be prepared by MPP counsel.

In his deposition, Leff acknowledged that he never formally submitted Malimos for approval by the state as a long-term sub-concessionaire at the Pier. In his May 2008 declaration in support of the motion for summary judgment, Leff stated that after the negotiations with Malimos ended, MPP negotiated and entered into a final long-term restaurant sub-concession agreement with the Malibu Restaurant Group, an affiliate of Rubys (collectively Rubys). He said that the DPR approved Rubys, the contract between MPP and Rubys, and Rubys drawings and plans for the permanent restaurant at the Pier. Rubys was currently building facilities and operating a restaurant at the Pier, and none of Malimoss plans or drawings were being used.

II. DISCUSSION

A. Scope of Review

The rules of review are well established. If no triable issue as to any material fact exists, the defendant is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. [Citation.] We review the record and the determination of the trial court de novo. [Citation.] (Shin v. Ahn (2007) 42 Cal.4th 482, 499.)

B. Breach of Contract

Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide. [Citation.] (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.) The evidence here is undisputed and supports only one conclusionthat no contract was formed. We independently agree with the trial courts determination in this regard, and with its decision to enter judgment for MPP on the breach of contract count.

Mutual consent of the parties is required for formation of a contract. (Civ. Code,  1550, 1565.) The existence of mutual assent is determined by objective criteria. The test is whether a reasonable person would, from the conduct of the parties, conclude that there was mutual agreement. (Hilleary v. Garvin (1987) 193 Cal.App.3d 322, 327.) We find no evidence for a meeting of the minds in this instance, at least until the eleventh hour, just before Malimos broke off the negotiations.

MPP sent proposed contracts to Malimos on August 1, 2005, March 6, 2006, May 27, 2006, July 19, 2006, August 4, 2006, and September 1, 2006. Malimos did not agree with any of them. After receiving the contract transmitted on March 6, 2006, Malimos professed concern over a lack of clarity on material issues, expressed doubt that an agreement could be reached on parking, and proposed a new term along with 3-4 modifications. Malimos responded to the contract furnished on May 27, 2006, with a June 1, 2006 e-mail listing twelve changes that need[ed] to be made. Malimos felt that the contract it received on July 19, 2006 [d]id not adequately deal with the revisions suggested in the June 1, 2006 e-mail. Malimos had eleven more changes and comments on the contract it received on August 4, 2006. Malimos objected to provisions in the contract sent on September 1, 2006, that pertained to the parking lot cart and common area maintenance charges.

The final proposed contract sent on September 4, 2006, called for Malimos to bear 66 percent of the maintenance charges, rather than the 60 percent Malimos said it was willing to accept in an attempt to finalize this discussion. However, it can be inferred from the evidence that Malimos acquiesced to the higher figure, because Kesluk sent Leff an e-mail on September 20, 2006, referring to an agreement on terms, and Sadofsky declared that Malimos conveyed complete agreement on each and every term of the contract forwarded on September 4, 2006.

Nevertheless, while there may finally have been a meeting of the minds between September 4, 2006, and September 22, 2006, when Malimos ended the negotiations, no contract was ever signed. When it is clear . . . that both parties contemplated that acceptance of the contracts terms would be signified by signing it, the failure to sign the agreement means no binding contract was created. [Citations.] This is so even though the party later sought to be bound by the agreement indicated a willingness to sign the agreement. [Citation.] On the other hand, if the respective parties orally agreed upon all of the terms and conditions of a proposed written agreement with the mutual intention that the oral agreement should thereupon become binding, the mere fact that a formal written agreement to the same effect has not yet been signed does not alter the binding validity of the oral agreement. [Citation.] (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 358.)

The record here is clear that the parties contemplated an agreement that would be embodied in a written, signed contract. The evidence supporting this inference included: (1) Kesluks February 17, 2006 e-mail to Leff after the meeting where Leff declared we have a deal, in which Kesluk stated, I would like to get something in writing that both parties can sign so that we can move forward without delay. Alternatively, we could sign the contract with language that indicates . . . we are moving forward with the project in good faith; (2) Kesluks April 18, 2006 e-mail to Leff saying, I have counseled all parties to stand down from performing any efforts on behalf of the pier until we have a signed agreement; (3) Leffs June 2, 2006 e-mail to Sadofsky saying, Hopefully the fact that I executed a Sub-Concession Agreement and delivered it to you provides your group with some comfort that we will have a deal; (4) Leffs e-mail responding to Kesluks objections to the contract forwarded on August 4, 2006, which stated, Before I look all of this over, are you telling me that these are the only remaining issues and, if they are resolved, your group is ready to execute the Contract?; and (5) Kesluks September 20, 2006, e-mail to Leff demanding a finalized, signed sub-c agreement today.[1]

Apart from all of this evidence, the need for a signed agreement is apparent from the context and subject matter of the negotiations. Among the circumstances which may be helpful in determining whether a contract has been concluded are the following: the extent to which express agreement has been reached on all the terms to be included, whether the contract is of a type usually put in writing, whether it needs a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether a standard form of contract is widely used in similar transactions, and whether either party takes any action in preparation for performance during the negotiations. (Rest.2d Contracts,  27, com. c., p. 79.)

The contract here was a detailed commercial agreement covering a long-term venture involving millions of dollars, the sort of contract that needed a formal writing for its full expression. It is not disputed that, given its duration, the contract was subject to the statute of frauds and thus that a written agreement was legally required. (Civ. Code,  1624, subd. (a)(1), (3).) As MPP notes, all of the contracts it proposed had integration clauses, which constitute persuasive evidence that the parties did not intend to be bound prior to the execution of a written agreement. (Ciaramella v. Readers Digest Assn, Inc. (2d Cir. 1997) 131 F.3d 320, 324.) As we have observed, express agreement was not reached on all of the terms to be included until shortly before Malimoss demand for a final, signed contract today.

While it is true that Malimos took action during the negotiations in preparation for performance, that fact did not, under the circumstances here, demonstrate an agreement to dispense with a formal signed contract. To the contrary, the evidence establishes that Malimos fully appreciated the risk it was taking by proceeding without a final signed agreement. From the beginning, in July 2005, Malimos was looking for a draft of the final contract, and planning for actions to be taken as soon as we complete the contract. In February 2006, Malimos asked for a signed contract so that we can move forward without delay. In April 2006, when a revised contract had not been provided for review, Kesluk counseled Malimos to stand down from performing any efforts on behalf of the pier pending execution of an agreement. Kesluk had Malimos stand down again in July 2006, and cancel all meetings, when it appeared that MPP was changing the terms of the deal. Kesluks final e-mail before halting the negotiations demanded immediate execution of an agreement because of arrangements that needed to be made for Malimos to meet its performance expectations. On this record, the existence of a binding agreement cannot be reasonably inferred from the preparations for performance.

Malimos contends that the situation here is the same as that in Lamle v. Mattel, Inc. (Fed. Cir. 2005) 394 F.3d 1355 (Lamle), where the federal court, applying California law, held that a contract could be found to have existed. In that case, Mattel negotiated with Lamle about obtaining a license to distribute a board game Lamle invented. Early in the negotiations, Lamle signed a form acknowledging that Mattel assumed no obligation unless and until a formal written contract is agreed to and entered into. (Id. at p. 1357.) The parties had a meeting at which many terms of a license were agreed upon. Lamle said that Mattel Vice President Mike Bucher  acting for Mattel, made an oral agreement . . . to license [the game] . . . [The parties] agreed that there were no material points left to be negotiated and shook hands on The Deal.   (Id. at p. 1359.) Bucher sent Lamle an e-mail repeating agreements reached at the meeting and stating that the terms ha[ve] been agreed in principal [sic] by . . . Mattel subject to contract.  (Id. at p. 1357.) Mattel did not sign the licensing agreements Lamle furnished, and eventually decided not to license the game.

The majority opinion in Lamle reversed a summary judgment for Mattel on Lamles breach of contract claim. The majority found that there were genuine issues of material fact as to whether the parties objectively intended to be immediately bound by an oral contract [at their meeting], and whether the later e-mail satisfied the statute of frauds by setting forth the material terms of that agreement. (Lamle, supra, 394 F.3d at p. 1362.) The majority conceded that Lamle face[d] a difficult burden persuading the jury that, despite Mattels stating that it would sign a formal contract later, the objective intention of both parties was to be immediately bound by the oral contract, and to abrogate a prior written agreement to the contrary. (Id. at p. 1363.)

The parties here, like those in Lamle, had a meeting where they shook hands over what they called a deal, but the similarity ends there. After the February 15, 2006, meeting in this case, MPP furnished Malimos with multiple proposed written contracts to which Malimos had multiple objections. As a matter of law, a trier of fact could not reasonably find on this evidence that the parties intended to be immediately bound by an oral agreement reached at the February 2006 meeting. (Lamle, supra, 394 F.3d at pp. 1362, 1363.)

Summary judgment was correctly granted on the breach of contract cause of action on the ground that the parties intended, but failed, to enter into a signed agreement.[2]

C. Promissory Estoppel

Malimos seeks to recover for its losses on the theory of promissory estoppel, which is formulated in the Restatement Second of Contracts, section 90, subdivision (1), page 242, as follows: A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Promissory estoppel was developed to do rough justice when a party lacking contractual protection relied on anothers promise to its detriment. (Kajima/Ray Wilson v. Los AngelesCounty Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 315.) The elements of a promissory estoppel claim are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.  (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.)

Here, as we have explained, Malimos was well aware when it expended time and money in anticipation of a long-term sub-concession contract at the Pier that it had no final signed contract that would have been binding on MPP. Indeed, for most all of the time in which Malimos allegedly acted in reliance on a promise by MPP, Malimos was objecting to the terms MPP proposed. In these circumstances, summary judgment was properly granted on the promissory estoppel cause of action on the grounds that neither a clear promise nor reasonable reliance were shown.

D. Unjust Enrichment

The elements of a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. (Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726.) Malimos identifies no benefit it conferred on MPP other than the architectural plans it provided that were submitted to and approved by the DPR in the summer of 2005, and MPP submitted uncontroverted evidence that Malimoss plans were not used when the project ultimately proceeded. Thus, summary judgment was properly granted on the unjust enrichment cause of action on the ground that MPP did not retain any of the benefit Malimos provided.

III. DISPOSITION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

_____________________

Margulies, J.

______________________

Graham, J.*

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[1] Italics in this paragraph have been added to the record.

[2] In view of this conclusion, we need not reach any of the other grounds the trial court cited for its ruling.

* Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.