Filed 9/29/26 Miller v. California Dept. of Transportation CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SCOTT MILLER et al., B345954
Plaintiffs and Appellants, (Los Angeles County
Super. Ct.
v. No. 22STCV06022)
CALIFORNIA DEPARTMENT
OF TRANSPORTATION,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Armen Tamzarian, Judge. Affirmed.
Tesser Grossman, Brian M. Grossman, Ryan C. Duckett
and Bethany Burrill for Plaintiffs and Appellants.
Erin E. Holbrook, Chief Counsel, Jerald M. Montoya,
Deputy Chief Counsel, William T. Kamizolas and Daniel Y. Choi
for Defendant and Respondent.
Scott and Melissa Miller appeal from a judgment entered
after the trial court granted summary judgment for the
California Department of Transportation (Caltrans) on the
Millers’ causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing relating to the
parties’ prior settlement agreement.1 The Millers alleged that as
part of the settlement agreement, Caltrans promised to build a
retaining wall (the North Wall) that would address a deep-seated
landslide on their property and provide the stability necessary to
complete the Millers’ grading plan. Although Caltrans built the
North Wall, the Millers alleged the wall failed to address the
deep-seated landslide on the Millers’ property. The Millers also
alleged Caltrans failed to provide them with sufficient
information relating to Caltrans’s construction of a wall along the
Pacific Coast Highway (PCH) adjacent to the Millers’ property
(the South Wall).
The trial court concluded as a matter of law that Caltrans
did not breach the parties’ agreement or the implied covenant of
good faith and fair dealing. Further, the Millers waived their
right to object to the North Wall, and they were equitably
estopped from asserting their claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The First Lawsuit and Settlement Agreement2
In mid-1995 the Millers purchased property on Sea Vista
Drive in Malibu, California (the Property) on the north side of the
1 We refer to Melissa and Scott collectively as the Millers and
individually by their first names.
2 The facts in this and subsequent sections are taken from
the declarations and exhibits submitted by the parties in
connection with Caltrans’s motion for summary judgment.
2
PCH. The Property has a bluff with a south-facing slope leading
down to the PCH. A historic deep-seated landslide runs through
the area, including through the southern portion of the Property,
on both sides of and underneath the PCH. The deep-seated slide
experienced reactivation in 1969, 1978, 1993, and early 1995. In
May 1995 the Millers signed an “Access Agreement” with
Caltrans permitting Caltrans to perform landslide abatement
grading and to store equipment on the Property. Caltrans
removed soil from the Property during its grading operations in
1995, and shortly thereafter an initial slide occurred in the area
where Caltrans previously worked on the eastern side of the
Property. Years later, during a multi-day storm that occurred
from late December 2004 to January 2005, the Property’s bluff
failed, causing a shallow (surficial) landslide.
On August 11, 2010 Melissa voluntarily filed for
bankruptcy. On September 8 the Millers filed an inverse
condemnation lawsuit against Caltrans alleging Caltrans’s 1995
work caused immediate damage to the Property and the 2005
surficial landslide, which impacted the Millers’ bluff and slope.
Melissa stated she and Scott filed the lawsuit to require Caltrans
to remedy the damage caused by its 1995 work, including the
2005 surficial landslide, and to stabilize the slope of the Property
to prevent future slides. On December 17 Caltrans filed a
condemnation action against the Millers for an easement
underneath the Property to construct tie-backs for a planned wall
south of the PCH (the South Wall) to stabilize the PCH and
surrounding areas.
In 2013 the Millers retained civil engineer Robert
Hollingsworth to evaluate the repairs necessary to stabilize the
2005 shallow landslide and the decades-old deep-seated
3
landslide, both of which impacted the Property. Hollingsworth
reviewed Caltrans’s plans for the South Wall and determined
that although the wall was intended to stabilize the PCH with
respect to the deep-seated slide, it would not be sufficient to
stabilize the portion of the deep-seated landslide extending north
of the PCH into the Property, and further, the plans for the South
Wall did not indicate the factor of safety the wall would achieve.3
Hollingsworth therefore prepared a plan to construct a mid-slope
“tieback soldier pile wall” with “tieback anchors” (the mid-slope
tieback wall) to stabilize the slope and address the deep-seated
landslide that extended into the Property. On May 13, 2013
Hollingsworth issued a geotechnical report (the 2013 report) with
these preliminary slope stabilization recommendations for the
Property.
On January 19, 2015 the Millers and Caltrans attended a
mediation and signed a stipulation, which stated Caltrans
“[t]entatively . . . agreed to construct a retaining/tieback wall in
their right of way contiguous to both the Miller property and
Pacific Coast Highway,” i.e., at the bottom of the Property’s
southern slope, north of the PCH (the North Wall). The
stipulation also stated the “Miller grading plan and the State’s
wall need to be verified and engineered in concert with
one another, so as to confirm that they are compatible.”
In February 2015 the Millers’ attorney asked the Millers’
new civil engineer, Kevin Keegan, to develop a revised grading
3 Hollingsworth explained, “The factor of safety for landslide
stability is a ratio of the forces resisting a slope’s movement to
the forces driving it to fail. The factor of safety is a critical
benchmark for assessing slope stability that helps engineers
understand how close a slope is to failure.”
4
plan (the Keegan plan) in light of the proposed North Wall
instead of Hollingsworth’s proposed mid-slope tieback wall.
According to Hollingsworth, he changed his grading
recommendations to remove the mid-slope tieback wall because
the North Wall would “presumably address the deep-seated
failure surfaces extending from the Miller’s Property.” Keegan
based his preliminary grading plan on Hollingsworth’s revised
recommendations. Accordingly, the Keegan plan did not include
any features to stabilize the deep-seated slide on the Property,
relying instead on the North and South Walls for stabilization.
Caltrans and the Millers attended two additional
mediations, and on November 16, 2015 the parties executed a
settlement agreement (the Agreement) to resolve the parties’
pending lawsuits. The Agreement provided that the bankruptcy
court in Melissa’s bankruptcy case had jurisdiction over the
settlement. The Agreement required Caltrans to pay
approximately $1.5 million in “Settlement Funds,” with a portion
of the funds (the “Grading Funds”) to be used for repair of the
Property.
The Agreement provided in section 2.4: “The Grading
Funds shall first be used to perform and complete the grading
project as provided for in prior discussions between Robert
Hollingsworth and employees of the State and as provided for in
concept grading plans furnished . . . . Once the grading project
has been completed, Ms. Miller shall be able to use the balance of
the funds in the Grading Account as determined by the
[bankruptcy court].” Under section 2.5, the bankruptcy court
would determine the use of the remainder of the Settlement
Funds.
5
The central provision of the Agreement at issue in this case
is section 3, which provides with respect to Caltrans’s
construction of the North Wall: “The State will build a wall, with
tie backs (the “Wall”), on the same side of Pacific Coast Highway
as the [Property], within the easement already acquired by the
State, as provided for in prior discussions. The Parties agree that
the improvements in the State’s Right of Way (including the
construction of the Wall) and the improvements to be performed
on the Property are independent and separate projects. Parties
and their consultants, including but not limited to engineers and
contractors, agree to act reasonably to accommodate the two
separate improvements. The timing and course of construction
for both projects shall be coordinated in a way to facilitate
recognized design and construction practices and to facilitate the
successful completion of each individual project. If a dispute
should arise because the respective Parties cannot agree then the
Bankruptcy Court shall have jurisdiction to resolve the
dispute . . . .”
On November 23, 2015 Caltrans’s attorney emailed the
Millers’ attorney and requested the Millers submit their
“finalized and stamped” grading plan to Caltrans’s engineers “for
final coordination” before submission to the contractor. On
December 7 Caltrans’s attorney again requested the Millers’
finalized plan, this time attaching the preliminary grading plans
that Keegan had submitted to Caltrans and noting her
understanding that “Caltrans has designed its wall in accordance
with these grading parameters in mind.” On December 16, 2015
Keegan prepared a revised preliminary slope repair plan.
6
B. The Amendment and Approval of the North Wall Plans
On June 1, 2016 the parties amended the Agreement (the
Amendment) and agreed that “[s]ubject to the design of the Wall
having been approved by the Millers, the Millers hereby agree to
grant an additional, permanent easement to the State to
accommodate the tiebacks for the Wall if necessary.” (Italics
added.) In February 2017 Caltrans provided the Millers its
design plans for the North Wall. Keegan reviewed the plans and
told Melissa he had concerns with the height of the wall. Around
February 14, 2017 the Millers and their civil engineer and
attorney attended a meeting with Caltrans to discuss the North
Wall’s design. On February 15 Melissa submitted a debtor’s
report to the bankruptcy court stating “Melissa Miller and her
expert had some issues with the design of the [w]all. Since the
Settlement requires the parties’ experts to work together to
resolve any such issues, [Melissa] and/or her expert hope that
those issues will be able to be resolved before the status
conference.”
On March 1, 2017 the bankruptcy court held a case
management conference at which Melissa stated the parties had
a disagreement over the design of the North Wall. The court
stated it intended to hold an evidentiary hearing to resolve any
issues regarding the design. On March 31 the Millers’ attorney
sent Caltrans an email stating “[Melissa Miller] has not been
provided with sufficient information to approve the design of the
wall. Notwithstanding this . . . she feels that she has no choice
but to instruct Cal Trans to proceed with the project (including
the wall) as designed and to be built by Cal Trans. . . . Please
confirm that Cal Trans will proceed to take whatever steps are
necessary in order to complete the wall as quickly as possible.”
7
On May 1, 2017 Melissa reiterated her approval in a
debtor’s report that stated “although Melissa Miller and her
expert have some concerns about the design of the wall, [Melissa]
chose not to further object to Cal Trans’s design for the wall,
although there may be some negative effect on the estate (such as
an increase in the costs of the grading project due to the
design) . . . so that the wall may be completed as soon as possible.
[Melissa] hopes that Cal Trans will take all of the steps necessary
to achieve the goal of completing the wall as quickly as possible.”
Following this report, Caltrans commenced (and later completed)
construction of the North Wall.
In September 2017 the Millers directed their new engineer,
Leonard Liston III, of LC Engineering Group, Inc., to prepare a
remedial grading slope repair plan based on the Keegan grading
plan. The plan was finalized on February 1, 2019 for submission
to the City of Malibu (the City). On March 19, 2019 the Millers’
“plan expediter,” Santos Planning, submitted a grading permit
application to the City stating the requisite “code-conforming”
stability for the grading plan would come from Caltrans’s wall
projects. In response, the City requested the “Caltrans
Geotechnical Design Report that defines and/or substantiates the
‘code-conforming stability’ for the Caltrans repair of the deep-
seated landslide currently in progress.”
On June 5, 2019, Stephen Montoya, an expediter for
Santos Planning, emailed the City’s request to Caltrans and
asked for “a copy of the geotechnical report used for the
[Caltrans] work currently underway which fronts our client’s
property.” Caltrans promptly provided a November 18, 2005
Caltrans Geotechnical Design Report for the South Wall and a
September 12, 2016 Geotechnical Design Report for the North
8
Wall. The 2005 report for the South Wall provided stability
calculations for the South Wall, but, as Hollingworth later opined
in his declaration, the 2005 report did not provide sufficient
information to determine whether the South Wall would stabilize
the deep-seated slide on the Property. The 2016 report stated the
North Wall was designed “so that it should not fail by the
potential shallow slope instability”; it was not designed to
address the stability of the deep-seated slide affecting the
Property. The 2016 report referenced the 2013 Hollingsworth
report (proposing the mid-slope wall to address the deep-seated
landslide).
After reviewing these reports, Liston and the Millers’
consultants concluded that because the North Wall did not
address the stability for the deep-seated landslide and there was
insufficient information with respect to the South Wall’s factor of
safety, they could not provide the requested information to the
City. As a result, the Millers’ consultants prepared a revised
grading plan with a smaller usable graded pad atop their bluff.
The Millers submitted a new grading permit application with the
revised grading plan, which the City approved in
September 2020. The Millers proceeded to grade their property.
C. The Second Lawsuit and Motion for Summary Judgment
On February 17, 2022 the Millers filed a complaint against
Caltrans alleging breach of contract and breach of the implied
covenant of good faith and fair dealing. They alleged Caltrans
failed to construct a wall that supported and was compatible with
the Millers’ original grading plan (the Keegan grading plan) and
failed to provide plans, drawings, and engineering calculations
for the North and South Walls, frustrating the purpose of the
9
Agreement. During the parties’ discovery efforts two years later,
on February 2, 2024 the Millers’ attorney requested Caltrans’s
“stability calculations for the South Wall.” Caltrans responded a
few days later that the Millers already had sufficient information
to “ascertain the stability of the South Wall,” including from
Hollingsworth’s 2013 report. However, Caltrans provided its
South Wall “slope stability calculations” with the caveat that it
had not been able to verify the calculations because of the long-
ago retirement of the engineer who made the calculations and the
absence of other documents as a result of Caltrans’s record
retention policies.
On October 11, 2024 Caltrans moved for summary
judgment, or in the alternative, summary adjudication, on the
bases that the Millers’ causes of action failed as a matter of law
and were barred by the doctrine of equitable estoppel based on
Melissa’s approval of the wall’s plans. Caltrans argued the
undisputed evidence showed it built the North Wall required by
the Agreement, provided plans for the wall, was under no
obligation to provide information relating to the South Wall
(although it did provide some), and in 2019 the Millers only
requested information relating to Caltrans’s work on their
property (i.e., the North Wall). The Millers argued in their
January 8, 2025 opposition that triable issues of material fact
existed as to whether the North Wall complied with Caltrans’s
obligations under the Agreement and whether Caltrans breached
the implied covenant of good faith and fair dealing by failing to
provide the requested plans and specifications in 2019.
After a hearing, on February 13, 2025 the trial court
granted Caltrans’s motion for summary judgment. The court
considered at least nine “items of evidence” the Millers had
10
presented: five items pertained to correspondence before entry of
the November 23, 2015 Agreement; the sixth was the
Agreement’s reference to “prior discussions”; and three items
involved post-Agreement facts. The court explained in its written
ruling that the Millers’ extrinsic evidence “does not establish that
the parties agreed upon, or even discussed prior to the settlement
agreement, the specific characteristics of the wall, such as its
height and the number, location, and depth of the tiebacks.
Further, nothing in the settlement agreement states plaintiffs
had a right to approve or reject specific characteristics of the
contemplated wall.”
The trial court addressed as alternative grounds for
granting the motion that waiver and equitable estoppel precluded
the Millers’ claims, explaining that the 2016 Amendment
provided the Millers the right to approve the design; the Millers
approved the North Wall’s design; and Caltrans built the
North Wall pursuant to the approved plans. Accordingly,
the Millers “waived any right to challenge the sufficiency of the
wall they specifically authorized,” and the doctrine of equitable
estoppel precluded the Millers’ claims.
The trial court also found the Agreement did not impose
any obligations on Caltrans regarding the South Wall, which was
not the subject of the Agreement, nor did it specify what
information Caltrans needed to provide regarding the North or
South Wall, or when. Further, the Millers could not show
Caltrans caused damage to the Property, because even if the
geotechnical reports Caltrans disclosed during the second
litigation had been provided earlier, they would not have been
sufficient to obtain permit approval from the City. On February
21, 2025 the court entered judgment in favor of Caltrans.
11
The Millers timely appealed.4
DISCUSSION
A. Governing Law and Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Camden Systems, LLC v. 409 North Camden,
LLC (2024) 103 Cal.App.5th 1068; 1077-1078.) ““““We review the
trial court’s decision de novo, considering all the evidence set
forth in the moving and opposing papers except that to which
objections were made and sustained.’” [Citation.] We liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party.’”” (Hampton v. County of San Diego (2015) 62 Cal.4th
340, 347; accord, Camden Systems, at pp. 1077-1078.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Sabetian v. Exxon Mobil Corporation (2020)
57 Cal.App.5th 1054, 1068.) If the defendant satisfies this initial
4 We deny the Millers’ July 31, 2026 motion to augment the
record because all documents relevant to the appeal, including
the Keegan and Hollingsworth declarations and the complaint
(with exhibits) are included in the appellants’ appendix,
respondents’ appendix, or appellants’ supplemental appendix.
12
burden, the burden shifts to the plaintiff to present evidence
demonstrating there is a triable issue of material fact. (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at
p. 1069.) “‘[S]ummary judgment cannot be granted when the
facts are susceptible to more than one reasonable inference.’”
(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1180; accord, Rosas v. BASF Corp. (2015) 236 Cal.App.4th
1378, 1392.) “[E]ven though the court may not weigh [a
plaintiff’s] evidence or inferences against [a defendant’s] as
though it were sitting as the trier of fact, it must nevertheless
determine what any evidence or inference could show or imply to
a reasonable trier of fact.” (Aguilar, at p. 856.)
B. Principles of Contract Interpretation
“‘The rules governing the role of the court in interpreting a
written instrument are well established. 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.
[Citation.] Ordinarily, the objective intent of the contracting
parties is a legal question determined solely by reference to the
contract’s terms.’” (Brown v. Goldstein (2019) 34 Cal.App.5th
418, 432; accord, State of California v. Continental Ins. Co. (2012)
55 Cal.4th 186, 195; Sabetian v. Exxon Mobil Corporation, supra,
57 Cal.App.5th at p. 1069.) ““‘If contractual language is clear and
explicit, it governs.’”” (Fuentes v. TMCSF, Inc. (2018)
26 Cal.App.5th 541, 549.) “‘Extrinsic evidence is admissible,
however, to interpret an agreement when a material term is
ambiguous.’” (Brown, at p. 432; accord, Wolf v. Walt Disney
Pictures & Television (2008) 162 Cal.App.4th 1107, 1126; see
13
Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968)
69 Cal.2d 33, 37, 39-40 [notwithstanding the plain and
unambiguous language on the face of a contract, if extrinsic
evidence is “relevant to prove a meaning to which the language of
the instrument is reasonably susceptible,” the extrinsic evidence
may be admitted to determine the contracting parties’ objective
intent].) Ambiguity in a contract does not arise from
“‘“[d]isagreement concerning the meaning of a phrase,” or “‘the
fact that a word or phrase isolated from its context is susceptible
of more than one meaning.’” [Citation.] “‘[L]anguage in a
contract must be construed in the context of that instrument as a
whole, and in the circumstances of that case, and cannot be found
to be ambiguous in the abstract.’”’” (Terrell v. State Farm
General Ins. Co. (2019) 40 Cal.App.5th 497, 503.)
C. The Trial Court Did Not Err in Granting Caltrans’s
Summary Judgment Motion
1. Breach of contract cause of action
a. Caltrans met its initial burden on summary
judgment
The elements of a cause of action for breach of contract are
“‘(1) the [existence of the] contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and
(4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v.
New York Times Co. (2008) 164 Cal.App.4th 1171, 1178; accord,
Kumaraperu v. Feldsted (2015) 237 Cal.App.4th 60, 70.) Caltrans
carried its initial burden to present evidence that the Millers
cannot establish it breached the Agreement. The clear and
explicit terms of the Agreement required Caltrans to “build a
wall, with tie backs . . . within the easement already acquired by
14
the State, as provided for in prior discussions.” It is undisputed
that Caltrans built a wall with tie backs within the easement
acquired by the State (i.e., on the north side of the PCH). The
Agreement did not require the wall to address the deep-seated
slide on the Property or to meet a specific stability metric or
factor of safety with respect to the Miller’s grading project; nor
did the Agreement require Caltrans to ensure the City would
approve the Millers’ permit application for its grading project.
Further, the Agreement obligated Caltrans to “act
reasonably to accommodate the two separate improvements” (the
North Wall and the Millers’ grading project) and directed that
“[t]he timing and course of construction for both projects . . . be
coordinated in a way to facilitate recognized design and
construction practices and to facilitate the successful completion
of each individual project.” The only reasonable interpretation of
this language is that there would be two potentially simultaneous
but separate construction projects in the same area (but under
the direction of two different parties), and the parties were
required to ensure the work of one party would not interfere with
the other. (See Pittsburg Unified School Dist. v. S.J. Amoroso
Construction Co., Inc. (2014) 232 Cal.App.4th 808, 826 [“[W]e
‘consider the “‘clear and explicit’ meaning of [the contract]
provisions, interpreted in their ‘ordinary and popular sense,’
unless ‘used by the parties in a technical sense or a special
meaning is given to them by usage.’”’”].)
The evidence shows that Caltrans met this requirement: It
reviewed Hollingsworth’s 2013 report and Keegan’s preliminary
slope repair plans, coordinated and communicated extensively
with the Millers and their consultants during the pendency of the
two separate projects, provided its North Wall design plans to the
15
Millers’ consultants, provided the Millers an opportunity to
approve the North Wall design, and gave further geotechnical
information to the Millers upon their request.
Moreover, the Millers admitted in their complaint that they
had no evidence to show the North Wall did not provide sufficient
stability for the Millers’ grading project. They alleged “it is
theoretically possible that the [w]all as-built might support the
[Millers’] grading plan, [but] the absence of engineering
calculations, plan or drawings (and Caltrans’ refusal to provide
same to the Millers), render the [w]all useless to the Miller’s [sic]
grading project.” Thus, the Millers’ lawsuit was based on their
inability to secure permit approval for their initial grading plan
(which the Millers alleged was necessary to fully grade and use a
large, level area at the top of their slope) because they did not
have sufficient information to provide the City regarding the
stability of the hillside after implementation of their grading
plan. But, as discussed, nothing in the Agreement required
Caltrans to ensure the Millers could obtain the City’s approval.
The undisputed evidence also shows Caltrans cooperated
with the Millers and their engineers in coordinating the two
projects. Caltrans offered the Millers the opportunity to ask
questions regarding the grading plan and wall design, including
stating in a December 7, 2015 email that “[i]f Miller’s consultant
has questions I can put him in touch with the Caltrans engineer
working on this.” Further, the bankruptcy court offered a full
evidentiary hearing regarding the North Wall’s design, which the
Millers declined. Caltrans also provided plans and geotechnical
reports for the South Wall as early as 2013 (per the
Hollingsworth report), which the Agreement did not require it to
do. Caltrans then provided the North Wall plans to the Millers
16
for their approval pursuant to the Amendment, and Keegan
admitted the Millers’ attorney (Michael Barmasse) in 2017 asked
him “to review the Caltrans plans for the North Wall to ensure
the North Wall would be compatible with the Keegan Plan.”5
b. The Millers did not meet their burden on
summary judgment
Because Caltrans met its initial burden on summary
judgment, the burden shifted to the Millers to raise a triable
issue of material fact. The Millers contend triable issues exist as
to the meaning of the parties’ “prior discussions.” Specifically,
the Millers assert the parties’ prior discussions show that
Caltrans “repeatedly committed to . . . stabilize the deep-seated
landslide,” which was necessary to support the Keegan grading
plan. As the evidence shows, however, the Millers and their
engineers assumed the North Wall (as opposed to their grading
plan) was going to address the deep-seated landslide on the
Property, but none of the evidence shows that Caltrans at any
time made that commitment. The Millers also point to their post-
Agreement conduct, which they argue likewise shows that their
engineers finalized their grading plans based on an
understanding that the North Wall would address the deep-
seated landslide on the Property. Finally, the Millers argue
Caltrans breached the Agreement by not acting reasonably to
incorporate the Keegan grading plan into the North Wall project
5 Keegan clarified in his declaration in opposition to
summary judgment, however, that Barmasse asked him to look
at the plans from a design perspective, and not with respect to
the stability of the North Wall.
17
and failing to provide sufficient plans and information for the
North and South Walls.
The first five items of evidence relied on by the Millers in
the trial court and on appeal concern the parties’ communications
before they entered the Agreement. First, Melissa stated in her
declaration filed in opposition to summary judgment that the
Millers’ objectives in filing the inverse condemnation action were
to return the Property’s bluff to its condition before Caltrans’s
1995 soil removal and grading project damaged the Property and
later caused the 2005 surficial landslide, and further, to stabilize
the Property’s slope to prevent future slides. These objectives are
echoed in the Millers’ experts’ declarations. Melissa also
reiterated that “[d]uring the litigation” (at some unspecified
time), Hollingworth met with Caltrans engineers to learn more
about Caltrans’s plan to build the South Wall, and “Caltrans
counsel and engineers assured us that the South Wall Project
would stabilize the deep-seated landslide.”
Second, the Millers argue that Hollingsworth, as stated in
his declaration, initially proposed in 2013 to stabilize the slope
with a mid-slope wall with tiebacks that would address the deep-
seated slide on the Property. Hollingsworth stated that although
one purpose of the South Wall was to stabilize the deep-seated
landslide, Caltrans’s plans for the South Wall “did not indicate
the calculated factor of safety that would be achieved by the
repairs, or whether [the South Wall] would stabilize the active
landslides on the Millers’ Property.” Hollingsworth raised his
concern over the deep-seated landslide with Caltrans engineers
and explained the critical failure area in his 2013 report. He
further declared that after Caltrans agreed to build the North
Wall, “because the North Wall would presumably address the
18
deep-seated failure surfaces extending from the Millers[]
Property” to the PCH, he changed his slope repair
recommendation because the Millers no longer had to install a
mid-slope tieback wall to stabilize the slope. (Italics added.)
Third, the parties’ January 19, 2015 stipulation stated,
“The Millers’ counsel represent that their consultants have
prepared a grading plan . . . to allow for the regrading of the
Millers’ slope, which will repair the Millers’ slope.” Further,
“[t]he Miller grading plan and the State’s wall need to be verified
and engineered in concert with one another, so as to confirm that
they are compatible.”
Fourth, a January 28, 2015 email from the Millers’
attorney to Caltrans’s attorney stated, “I will be forwarding, with
your agreement a copy of the newly proposed grading plan and
request that your [e]ngineers review the same so as to verify that
our grading operations can be supported by the proposed wall in
your Right of Way.” (Boldface omitted.)
Fifth, on February 18, 2015 Keegan prepared a new
preliminary grading plan without any mid-slope wall or stability
features to address the deep-seated slide on the Property;
instead, the plan “relied upon the support of the North Wall, as it
could not be constructed unless the slope of the Property was
sufficiently stabilized.” In addition, Melissa confirmed in her
declaration that after the parties’ second mediation on
February 19, she “was informed by [her] counsel that Caltrans
had confirmed that the Keegan Plan would be supported by the
North Wall.”
None of this evidence raises a reasonable inference that
Caltrans agreed to design the North Wall to address the deep-
seated landslide on the Property, achieve a specific factor of
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safety or stability metrics, or ensure the City would approve
the Millers’ grading plan. The declarations explaining
the Millers’ objective for filing their action are at most evidence of
the subjective goals of the Millers. They do not raise an inference
as to the objective intent of the parties or evidence their prior
discussions. (See Winograd v. American Broadcasting Co. (1998)
68 Cal.App.4th 624, 632 [“The terms of a contract are determined
by objective rather than by subjective criteria. The question is
what the parties’ objective manifestations of agreement or
objective expressions of intent would lead a reasonable person to
believe.”].)
Moreover, any representations by Caltrans about the South
Wall do not have any bearing on what Caltrans promised in the
Agreement with respect to construction of the North Wall.
Similarly, accepting Hollingsworth’s statements as true, as we
must, his modification of his grading recommendation (later
implemented in the Keegan plan) because “presumably” the
North Wall would address the deep-seated landslide on the
Property does not show that Caltrans ever agreed to stabilize the
deep-seated slide on the Property. Further, the statement in the
parties’ stipulation that the Millers’ grading plan and the North
Wall had to be “compatible” does not show that Caltrans agreed
to address the deep-seated slide on the Property.
Nor did the January 28, 2015 email from the Millers’
attorney requesting that Caltrans engineers review the Millers’
grading plan to ensure that “grading operations” can be
“supported by” the North Wall show that Caltrans agreed that
the North Wall would stabilize the deep-seated landslide on the
Property, as opposed to ensuring the North Wall adequately
addressed the surficial slide that was allegedly caused by
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Caltrans’s work on the Property in 2005. As Caltrans’s engineer
Matthew Schott testified in his deposition, the North Wall was
designed to address the surficial landslide while the South Wall
addressed the deep-seated landslide.
The Millers argue “Caltrans’ own engineer [Schott] admits
he shared the same impression as the Millers—namely that
Caltrans had an obligation to incorporate the Keegan Plans with
its remedial action to [address] the [deep-seated slide] and that
the Settlement Agreement required Caltrans to restore what
Caltrans had damaged.” But that is not what Schott stated at his
deposition. In the cited portion of his testimony, Schott stated it
was his understanding that the Millers wanted to restore their
Property to the condition it was in prior to the 2005 surficial
landslide allegedly caused by Caltrans, but he did not know
whether that was part of the Agreement. And, as discussed, he
testified the North Wall was therefore designed to address the
surficial slide. Schott never stated in his deposition that the
Agreement required Caltrans in its construction of the North
Wall to address the deep-seated landslide. Moreover, Schott
clarified he was not privy to all the settlement discussions and
did not know the terms of the Agreement.
The Millers next point to three examples of the parties’
post-Agreement conduct as evidence they were unaware that the
North Wall would not provide the necessary stability for the
Millers’ grading plan, and had they known, they would not have
proceeded with a grading project that the City would not approve.
In an email dated November 23, 2015 Caltrans’s attorney told the
Millers’ attorney that Caltrans had sufficient information to
finalize the North Wall plans as long as it could “submit the
design as agreed upon by the State and the [Millers’] expert.”
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Caltrans’s attorney then added, “We need [the Millers’] grading
plan finalized and stamped by their engineer so it can be
submitted to our engineer for final coordination to submit to the
contractor [for] the job.” (Italics added.) Then, on December 7,
2015 Caltrans’s attorney sent an email to the Millers’ attorney
attaching the preliminary Keegan plan and stating she
“believe[d] Caltrans has designed its wall in accordance with
these grading parameters in mind,” and she requested the
Millers’ engineer finalize the grading plan “so we can all be on
the same page.” The Millers contend that had they not believed
the North Wall was intended to address the deep-seated
landslide, they would never have hired LC Engineering in 2017
to prepare a new remedial grading plan that was only viable if
the North Wall stabilized the Property’s slope. Finally, Melissa
stated in her declaration that “during [a] February 14, 2017
meeting” an (unnamed) Caltrans engineer “affirmatively stated
that the North Wall was designed to the site conditions included
within the Keegan Plan, and that it would therefore support the
Keegan Plan.”
These examples of post-agreement evidence show only the
Millers’ subjective beliefs and that, after entering into the
Agreement, the parties coordinated their efforts in developing the
Millers’ grading and North Wall plans (either of which could have
potentially stabilized the deep-seated slide on the Property), not
that Caltrans promised to design the North Wall to stabilize the
deep-seated slide on the Property.
The Millers also rely on declarations and reports from their
expert consultants stating their post-Agreement “understanding”
that the North Wall (or North and South Walls together) would
provide the necessary stability for the Millers’ grading plan. For
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example, Liston stated in his declaration that after he was hired
by the Millers in September 2017 to prepare the final grading
plan, the Millers told him that the North Wall “was intended to
stabilize the slope of their property.” Liston added that “[i]t was
our understanding that either the North Wall itself, or the North
Wall together with the South Wall Project, [would] provide[] code-
conforming stability for the deep-seated slide affecting the
Property.” According to Liston, his understanding was based in
part on the fact Hollingsworth withdrew his recommendation for
the Millers to build a mid-slope tieback wall after Caltrans
agreed to construct the North Wall. A 2019 report prepared by
the Millers’ geologist similarly stated that “[i]t is our
understanding” that the North and South Walls would provide
the necessary stability for the deep-seated landslide. That
the Millers and their engineers believed the North Wall would
stabilize the deep-seated landslide does not create a triable issue
of fact that Caltrans ever made this commitment. As discussed,
there is no evidence Caltrans agreed to do this or that the Millers’
consultants requested geotechnical information before Caltrans
built the North Wall to confirm the wall would stabilize the deep-
seated slide on the Property.
Finally, the Millers contend Caltrans breached the
requirement in the Agreement that it act reasonably by
withholding information showing “the North Wall was not going
to accomplish what the parties negotiated . . . such that the Wall
would proactively support the regrading project.” Caltrans did
not act unreasonably. First, there is no language in the
Agreement requiring Caltrans to provide any specific information
regarding the North or South Wall. Second, Caltrans provided
geotechnical reports and plans relating to the South Wall as early
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as 2013 (which Hollingsworth reviewed, determining the South
Wall did not address the deep-seated landslide on the Property).
And in 2017 Caltrans provided the Millers’ consultants access to
the design plans for the North Wall, before Liston prepared the
final grading plan. Further, when Melissa raised concerns about
the proposed North Wall plans in February 2017, the bankruptcy
court offered to hold an evidentiary hearing to address her
concerns, but Melissa declined the offer and instead approved the
North Wall’s design.6 Third, to the extent the information
Caltrans provided on the North Wall design was insufficient, or
the Millers needed underlying geotechnical information, the
Millers waited two years after entering the Agreement and well
after the North Wall was built to request additional geotechnical
reports. When the Millers’ consultants finally requested this
information, Caltrans promptly provided the reports it believed
the Millers sought, and the Millers did not make any follow-up
requests. Had the Millers wanted additional information about
either wall, they could have inquired further. The Millers
presented no evidence they requested Caltrans provide the
6 As discussed, Melissa decided to forego an evidentiary
hearing in the bankruptcy court and instead approve the North
Wall’s design notwithstanding the Millers’ contention they had
“not been provided with sufficient information to approve the
design of the wall” and had “some concerns about the design of
the wall.” Further, Melissa elected not to object in the hope that
Caltrans “will take all of the steps necessary to achieve the goal
of completing the wall as quickly as possible.” We need not reach
whether on these facts, as the trial court found, the Millers were
equitably estopped from bringing claims to challenge “the
sufficiency of the wall they authorized Caltrans to construct.”
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geotechnical reports for the North Wall prior to the Millers
submitting their revised grading plan to the City.
2. Breach of the implied covenant of good faith and fair
dealing
“The covenant of good faith and fair dealing, implied by law
in every contract, exists merely to prevent one contracting party
from unfairly frustrating the other party’s right to receive the
benefits of the agreement actually made.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 349 (Guz); accord, Rattagan
v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 26, fn. 7.) “The
implied covenant of good faith and fair dealing rests upon the
existence of some specific contractual obligation.” (Racine &
Laramie, Ltd. v. Department of Parks & Recreation (1992)
11 Cal.App.4th 1026, 1031.) The covenant cannot ““‘be endowed
with an existence independent of its contractual underpinnings.’”
[Citation.] It cannot impose substantive duties or limits on the
contracting parties beyond those incorporated in the specific
terms of their agreement.” (Guz, at pp. 349-350.)
Caltrans contends the Millers’ cause of action for breach of
the implied covenant of good faith and fair dealing fails as a
matter of law because it was duplicative of the Millers’ failed
breach of contract claim. The Millers argue, as they did in the
trial court, that a triable issue of material fact exists as to
whether Caltrans breached its duty of good faith and fair dealing
by failing to ensure the North Wall addressed the deep-seated
landslide and “by withholding vital information necessary for the
Millers to complete the regrading project.” Specifically, the
Millers contend Caltrans failed to provide the available plans,
drawings, and engineering calculations that would have revealed
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Caltrans’s walls were not sufficient to address the deep-seated
landslide and stabilize the slope of the Property, thereby
frustrating the purpose of the Agreement to obtain City approval
for and to complete the Millers’ grading plan.
Because the Millers’ breach of contract claim fails, so does
their duplicative implied breach of the covenant cause of action.
(Bionghi v. Metropolitan Water Dist. (1999) 70 Cal.App.4th 1358,
1370 [because “the cause of action for breach of the implied
covenant is duplicative of the cause of action for breach of
contract, [it] may be disregarded”]; see Guz, supra, 24 Cal.4th at
p. 327 [“[W]here an implied covenant claim alleges a breach of
obligations beyond the agreement’s actual terms, it is invalid.”].)
Moreover, as discussed, the Agreement did not require Caltrans
to design the North Wall to address the deep-seated slide on the
Property, provide a specific factor of safety, or ensure City
approval of the Millers’ grading plan. Likewise, the Agreement
did not require Caltrans to give specific geotechnical information
to the Millers, nor did the Millers request geotechnical
information for the North Wall prior to submitting their grading
plan for approval.
DISPOSITION
The February 21, 2025 judgment is affirmed. Caltrans is to
recover its costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J. STONE, J.
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