Filed 9/17/26 Sterling Home Showcase v. Champion Home Builders CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
STERLING HOME SHOWCASE, INC., C103539
Plaintiff and Appellant,
(Super. Ct. No.
v. STKCVUBC20210009670)
CHAMPION HOME BUILDERS, INC.,
Defendant and Respondent.
Plaintiff Sterling Home Showcase, Inc. (plaintiff) bought manufactured homes
from Skyline Homes, Inc. and its successor corporation, Champion Home Builders, Inc.
(defendant), and then sold those homes to the public. After defendant ended the business
relationship between the parties, plaintiff sued, alleging breach of oral contract, breach of
written contract, promissory estoppel, negligent misrepresentation, and intentional
misrepresentation. After the trial court granted summary adjudication to defendant on
four of the five causes of action, plaintiff requested leave to amend its allegations
regarding the surviving cause of action. The trial court denied that request. Later, the
trial court made several in limine rulings and, on the day before trial was to begin, the
parties signed a stipulation regarding damages. The trial court determined the stipulation
left nothing to be tried and entered judgment for plaintiff in the amount the parties
stipulated to. On appeal, plaintiff challenges (1) the trial court’s order granting summary
1
adjudication to defendant on four causes of action, (2) the trial court’s ruling denying
leave to amend the operative complaint, (3) two of the trial court’s in limine rulings, and
(4) the trial court’s determination that the stipulation regarding damages left nothing to be
tried. We affirm.
BACKGROUND
In 2006, plaintiff began selling defendant’s homes as an “exclusive dealer,” selling
only defendant’s homes. Plaintiff rejected efforts by one of defendant’s competitors to
persuade plaintiff to sell its homes too. Plaintiff rejected the competitor, at least in part,
because it preferred the terms of its arrangement with defendant, which included sale
rebates under defendant’s “Volume Incentive Program” (VIP). It was not until 2018 that
terms of the VIP agreements were reduced to writing.
Indeed, some terms of the parties’ relationship were never reduced to writing. For
example, plaintiff contends that an oral contract governed the parties’ dealership
arrangement. Specifically, plaintiff contends defendant orally agreed that (1) so long as
plaintiff remained an exclusive dealer for defendant, plaintiff would continue to be a
recognized dealer of defendant’s homes, and (2) this dealership arrangement would
“continue indefinitely.”
In 2020, the parties signed a VIP agreement covering the period of March 29,
2020 to April 3, 2021 (hereafter, the 20-21 agreement). No follow-up VIP agreement
was signed, and in a letter dated April 30, 2021 (ostensibly, 27 days after the 20-21
agreement expired), defendant unilaterally ended plaintiff’s status as a recognized dealer
“effective immediately.” Defendant also said in the letter that it would “honor and build
out any retail sold orders that” were “signed off prior to … April 29, 2021,” and “[p]er
2
the terms of” the parties’ “DVD[1] agreement,” homes had to be picked up from
defendant’s factory within five days of completion.
In October 2021, plaintiff filed a lawsuit against defendant asserting four causes of
action, including breach of oral contract and negligent misrepresentation. Some weeks
later, defendant sent a rebate check to plaintiff for roughly $56,000 in connection with the
20-21 agreement, but then canceled the check before plaintiff deposited it. In February
2022, plaintiff filed a first amended complaint (the operative complaint in this matter)
that included a fifth cause of action: breach of written contract. Plaintiff claimed
defendant “breached the written VIP contract in bad faith by putting a stop payment” on
the $56,000 rebate check.
Among the general allegations in the operative complaint, plaintiff asserted:
(1) both parties understood that the terms of the “exclusive dealer oral agreement
included special pricing, commitments on numbers of homes to be delivered, priority
build times” and “volume rebates” for plaintiff; (2) as “part of the oral agreement,”
defendant “continuously advised” plaintiff that defendant was “committed to [plaintiff]
being an exclusive retailer,” and “discouraged [plaintiff] from bringing on additional
brands of manufactured homes to sell, offering inducements to continue exclusively” for
defendant; (3) the parties “agreed to be bound by this oral agreement, as evidenced by the
fact that the parties complied with these terms of the exclusive dealer agreement for 16
years”; and (4) in April 2021, defendant “abruptly terminated the oral contractual
agreement” with plaintiff in retaliation for plaintiff’s complaints of delays and lack of
service; refused to deliver manufactured homes that plaintiff had already contracted for;
and refused to accept new contracts that plaintiff had already entered into with its
customers.
1 The VIP was also sometimes referred to as “DVD.”
3
Regarding breach of oral contract, plaintiff alleged the parties’ “oral exclusive
dealer contract” included an agreement that “as long as” plaintiff “fulfilled its
commitments and obligations,” the contract would “continue indefinitely” (hereinafter,
indefinite continuation). As for breach of written contract, plaintiff alleged the 20-21
agreement included monetary incentives for plaintiff to sell “a requisite number of
[d]efendant’s homes,” and defendant breached the 20-21 agreement by putting a “stop
payment” on the rebate check. In connection with the cause of action for promissory
estoppel, plaintiff alleged defendant made a “clear promise” that plaintiff would
“continue to be a dealer for” defendant “so long as” plaintiff “continued to be an
exclusive dealer for” defendant “and continued to meet its obligations and
commitments.” As for negligent misrepresentation, plaintiff alleged defendant’s officers
and managers “continuously represented” to plaintiff’s officers and managers that
plaintiff’s “exclusive dealer contract would continue as long as” plaintiff met its
commitments and obligations. Regarding intentional misrepresentation, plaintiff alleged
defendant’s officers and managers represented that (1) plaintiff “would be a recognized
dealer” for defendant “as long as” plaintiff met its commitments and obligations and (2)
incentive payments would be made as “volume incentives pursuant to” the 20-21
agreement.
I
Summary Adjudications
During his July 2023 deposition, plaintiff’s president, Christopher Harris, had the
following exchange with defendant’s counsel on the topic of the parties’ “exclusivity”
arrangement:
Question: “Do you recall any specific terms regarding
Answer: “Not—
Question: “Being exclusive?
Answer: “—specific—not specific terms. Not—no.”
4
The following exchange occurred on the topic of defendant’s alleged
misrepresentations to plaintiff:
Question: “What misrepresentations do you believe [defendant] made to
[plaintiff]? If any.
Answer: “Misrepresentations. I don’t believe they—that I’m aware if they made
any misrepresentations.”
In December 2023, defendant moved for summary judgment or in the alternative
summary adjudication, arguing that plaintiff’s causes of action for breach of oral contract,
promissory estoppel, negligent misrepresentation, and intentional misrepresentation
failed in light of the above exchanges, which confirmed that defendant (1) never
promised to keep plaintiff as a recognized dealer as long as plaintiff sold defendant’s
homes exclusively and (2) never made any misrepresentations along those lines. In
opposing defendant’s motion, plaintiff argued that the above exchanges were “misleading
… incomplete snippet[s] of testimony,” and cited, inter alia, (1) other portions of Harris’s
deposition testimony, which ostensibly demonstrated that he “had many conversations
with multiple people about ‘exclusivity,’ ” and (2) Harris’s August 2024 declaration,
wherein he asserted that “the agreement between” plaintiff and defendant “was that
[plaintiff] would be maintained and supported as a dealer as long as [plaintiff]
‘exclusively’ sold [defendant’s] products.”
In September 2024, the trial court granted defendant’s motion for summary
adjudication on four of the five causes of action in the operative complaint. The cause of
action for breach of written contract survived.
Regarding the breach of oral contract cause of action, the trial court reasoned
defendant produced evidence showing there was no mutual assent between the parties on
indefinite continuation, and plaintiff failed to raise a triable issue of material fact on that
question. Citing a case for the proposition that a declaration which simply contradicts a
prior discovery admission is not normally acceptable as evidence that creates a triable
5
issue of material fact, the trial court disregarded the statement in Harris’s declaration that
there was an indefinite continuation agreement. The trial court reasoned the declaration
was not supported by any of plaintiff’s other evidence and therefore was “nothing more
than a self-serving, conclusory statement” in light of Harris’s deposition testimony,
wherein he “never once” suggested there was an indefinite continuation agreement
despite being asked about exclusivity.
As for promissory estoppel, the trial court reasoned defendant produced evidence
showing there was no clear and unambiguous promise by defendant to plaintiff regarding
indefinite continuation, and plaintiff failed to raise a triable issue of material fact on that
question. Regarding the misrepresentation causes of action, the trial court reasoned
defendant produced evidence showing defendant did not make any representations to
plaintiff that it knew were false or had reason to believe were false, and plaintiff failed to
raise a triable issue of material fact on that question.
II
Denial of Leave to Amend
In November 2024, plaintiff filed a motion for leave to file a second amended
complaint to “clarify and specify the written contracts” defendant breached, “as well as
specify the damages” for those breaches. Plaintiff asserted amendment was timely
because “it reflect[ed] damages clarified through discovery.”2 In opposition, defendant
declared there had been no discovery in the case since May 2024, and argued, inter alia,
that plaintiff “unreasonably delayed … seeking amendment” as a “dilatory tactic.”
Defendant also argued that while the operative complaint alleged the breach of a single
2 Plaintiff maintained that “[a]s a result of … extensive discovery,” it was “able to
determine the number of sales contracts” that the parties had, and which defendant
“unilaterally cancelled.”
6
contract and damages of roughly $56,000, the proposed amendments alleged the “breach
of an additional 20 unspecified contracts with alleged damages exceeding $1.2 million.”
The trial court denied plaintiff’s motion, ruling that the interests of justice would
not be served by permitting the requested amendment “6 weeks before trial on a case that
[was] over 3 years old.” The trial court also reasoned that the November 2024 request to
amend “appear[ed] to be a type of sandbagging at the 11th hour before trial,” because no
discovery had been exchanged since May 2024.3
III
In Limine Rulings
In late January 2025, with trial scheduled to begin at the end of the month, both
parties filed in limine motions. Plaintiff sought to exclude documents and discovery
responses that defendant provided for the first time that month. Defendant sought to
exclude any argument or evidence unrelated to defendant’s alleged breach of the 20-21
agreement by putting a “stop payment” on the rebate check that it sent to plaintiff.
In oral argument opposing defendant’s in limine motion, plaintiff’s counsel
asserted that the operative complaint “set forth that [plaintiff] [was] seeking damages for
the written agreements to build homes that had already been signed and entered into by
the parties” before defendant’s April 30, 2021 letter; not just damages for defendant’s
“stop payment” of the 20-21 agreement rebate check.
The trial court granted defendant’s in limine motion, reasoning that the breach of
written contract cause of action was “specifically and clearly directed at a $56,366.67
breach of the written VIP contract for … the fiscal year of 2021,” because the operative
3 The trial court also observed that the requested amendment followed its ruling granting
summary adjudication to defendant on other causes of action and determined that
defendant would have been “prejudiced by permitting new theories of the case at this late
date,” in part because there would be insufficient time “to challenge the new … pleading”
and “engage in the discovery required to meet the new theories.”
7
complaint’s general allegations concerned plaintiff’s cause of action for breach of oral
contract, on which the trial court had already granted summary adjudication. And the
trial court denied plaintiff’s in limine motion after expressing concerns that it could be
reversible error to preclude defendant from presenting germane evidence.4
“Given the Court’s rulings,” plaintiff’s counsel waived a jury trial and observed
that the case could take as little as one day. Trial was scheduled to begin on January 30,
2025.
IV
Parties’ Stipulation and Judgment
The day before trial, the parties filed with the court a document captioned
“STIPULATION REGARDING DAMAGES FOR TRIAL.” Paragraph 5 of the
stipulation states: “Notwithstanding the disagreement between Plaintiff and Defendant,
Defendant stipulates to damages in the total amount of $17,684.35 for rebates earned
under” the 20-21 agreement “on homes and products invoiced and shipped by Defendant
to Plaintiff between March 29, 2020 and April 3, 2021.” Plaintiff further agreed (in
paragraph 6) not to claim any additional damages for alleged rebate payments earned
and/or owed to plaintiff under the 20-21 agreement for homes and products invoiced and
shipped to plaintiff between March 29, 2020 and April 3, 2021. And the parties further
agreed (in paragraph 7) that the stipulation did “not affect and shall not prevent (1)
Plaintiff from making the argument it intends to raise at trial that Plaintiff is entitled to
rebate payments for homes and products that were or should have been invoiced and
shipped by Defendant after April 3, 2021, or (2) Defendant’s ability” (a) to oppose
plaintiff’s arguments and/or (b) to argue that the 20-21 agreement “does not extend
4 The trial court granted plaintiff’s separate motion in limine to exclude from trial any
evidence regarding the reasons why defendant ended the parties’ business relationship
(unless plaintiff “put[] the issue before the jury”).
8
beyond April 3, 2021, that it does not apply to homes and products invoiced and shipped
after April 3, 2021, and that there are no issues remaining to be tried as a result of this
stipulation.” (Italics added.)
When the parties appeared in court the next day, plaintiff’s counsel argued that
over the years of the parties’ business relationship, VIP agreements like the 20-21
agreement “just automatically rolled over to the next … twelve-month period.” Defense
counsel argued “there was never a new” VIP agreement, and because the parties’
stipulation resolved the sole claim under the cause of action for breach of written
contract, there was “nothing left to try” in the case. Plaintiff’s counsel retorted that even
though the 20-21 agreement stated that it expired on April 3, 2021, “[y]ou can extend it
by oral agreement … you can extend it in writing, and you can extend it by conduct. And
that’s what we have here … by an admission by [defendant’s] general manager.”
The trial court ruled there was “nothing left” for it to try because the stipulation
resolved the breach of written contract cause of action. The trial court explained that
plaintiff was “attempt[ing] to seek other money under the VIP agreement outside th[e]
narrow time period” contemplated by the 20-21 agreement, and “[n]one of that is in the
pleadings.” Thus, the trial court observed, if it were to allow plaintiff “to proceed as they
are requesting,” the trial court “would be ignoring” its prior rulings granting defendant’s
motion in limine, denying plaintiff’s motion for leave to amend, and granting defendant’s
motion for summary adjudication.
Accordingly, the trial court entered judgment for plaintiffs in the amount of
$17,684.35. Plaintiff filed a timely notice of appeal.
9
DISCUSSION5
I
Summary Adjudications
“A motion for summary judgment must be granted if the submitted papers show
there is no triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The moving party
initially bears the burden of making a ‘prima facie showing of the nonexistence of any
genuine issue of material fact.’ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
845.) ‘A prima facie showing is one that is sufficient to support the position of the party
in question.’ (Id. at p. 851.) As applicable here, a defendant moving for summary
judgment can meet its burden of showing that a cause of action has no merit by showing
that one or more elements of the cause of action cannot be established. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) Once the defendant has met its burden, the burden shifts to the
5 At the outset of our discussion we note that, throughout its briefing, plaintiff suggests
the trial court’s rulings reflected bias against plaintiff. But plaintiff does not squarely
present the issue to us as a discrete argument. “Failure to provide proper headings
forfeits issues that may be discussed in the brief but are not clearly identified by a
heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; see Cal. Rules of Court,
rule 8.204(a)(1)(B) [an appellant must “[s]tate each point under a separate heading or
subheading summarizing the point”].) If plaintiff had squarely presented the issue to us,
we would deem it forfeited on appeal, because it appears plaintiff did not raise the issue
in the trial court. (See Code Civ. Proc., § 170.3, subd. (c)(1) [a party who believes a
judge is required to disqualify himself or herself must file a disqualification motion in the
trial court “at the earliest practicable opportunity after discovery of the facts constituting
the ground for disqualification”]; People v. Farley (2009) 46 Cal.4th 1053, 1110 [“This
essentially is a claim of judicial bias, which defendant forfeited by failing to assert it
below”]; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218
[appellants “did not preserve their claim of judicial bias for review because they did not
object to the alleged improprieties and never asked the judge to correct remarks made or
recuse [her]self”].)
10
plaintiff to show that a triable issue of one or more material facts exists as to the cause of
action. (Ibid.)” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 576-577.)
“We review de novo the record and the determination of the trial court. First, we
identify the issues raised by the pleadings, since it is those allegations to which the
motion must respond. Second, we determine whether the moving party’s showing has
established facts negating the opponent’s claims and justifying a judgment in the moving
party’s favor. When a summary judgment motion prima facie justifies a judgment, the
final step is to determine whether the opposition demonstrates the existence of a triable,
material issue of fact.” (Ortiz v. Dameron Hospital Assn., supra, 37 Cal.App.5th at
p. 577.) We liberally construe the evidence in favor of the party opposing summary
judgment and likewise resolve doubts concerning the evidence in favor of that party.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
Plaintiff contends the trial court erred in granting summary adjudication to
defendant on four of the operative complaint’s five causes of action. We disagree.
A. Breach of Oral Contract
Plaintiff argues defendant failed to meet its initial burden when moving for
summary adjudication on breach of oral contract, because (1) defendant relied on
“mischaracterized snippets” of deposition testimony that did not accurately convey the
entire record, (2) the testimony defendant relied on “reflected failures of Harris’
recollection rather than substantive admissions,” and (3) the testimony defendant relied
on “did not bear on whether there was an agreement for exclusivity.” We are not
persuaded.
1. “Mischaracterized Snippets”
Plaintiff’s contention that the testimony defendant relied on did not accurately
reflect the record is unavailing, because in moving for summary adjudication defendant
only had to make a prima facie showing of the nonexistence of a triable issue of fact by
producing evidence; defendant did not have the burden of persuasion at this initial stage.
11
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Harris’s deposition
testimony that he did not recall any specific terms regarding the parties’ “exclusivity”
arrangement (defendant’s undisputed material fact No. 4) supported defendant’s position
that the parties’ oral contract did not include an indefinite continuation term. Defendant
thereby satisfied its initial burden of production. “No more is called for.” (Id. at p. 851.)
2. Failures of Recollection
Plaintiff did not argue in its opposition to the motion for summary adjudication
that Harris’s deposition testimony reflected “failures of … recollection rather than
substantive admissions.” Accordingly, the argument is forfeited on appeal and we
decline to consider it. (DiCola v. White Brothers Performance Products, Inc. (2008) 158
Cal.App.4th 666, 676 (DiCola) [“we are not obliged to consider arguments or theories,
including assertions as to deficiencies in defendants’ evidence, that were not advanced by
plaintiffs in the trial court” in opposing defendant’s motion for summary judgment]; id. at
p. 677 [“principles of forfeiture … prevent plaintiffs from making these arguments for the
first time on appeal”].)6
3. Exclusivity
It is undisputed that the parties had an “exclusivity” agreement. The issue is
whether indefinite continuation was a term of that agreement. Thus, plaintiff’s argument
6 Contrary to plaintiff’s counsel’s assertion at oral argument, our review of the record
does not reveal that in its papers opposing the motion for summary adjudication plaintiff
argued that Harris’s deposition testimony reflected failures of recollection rather than
substantive admissions. “The parties had the opportunity to brief forfeiture, a rule always
implicated when a party raises in the reviewing court an argument that was insufficiently
preserved in the trial court. (See People v. Alice (2007) 41 Cal.4th 668, 679 [‘The parties
need only have been given an opportunity to brief the issue decided by the court, and the
fact that a party does not address an issue, mode of analysis, or authority that is raised or
fairly included within the issues raised does not implicate the protections of [Government
Code] section 68081’].)” (Tindall v. County of Nevada (2025) 112 Cal.App.5th 78, 86,
fn. 5.)
12
that defendant did not meet its initial burden when moving for summary adjudication
because Harris’s testimony “did not bear on whether there was an agreement for
exclusivity” is unavailing.
4. No Triable Issue
Plaintiff contends it demonstrated “at least one triable issue of material fact
regarding the oral contract and promissory estoppel causes of action.” We are not
persuaded.
As a threshold matter, it is important to clarify that the trial court may grant
summary judgment if any element of the cause of action is negated by an undisputed fact.
In such instances, the remaining facts are immaterial. (Knapp v. Doherty (2004) 123
Cal.App.4th 76, 84.) Thus, a plaintiff opposing a motion for summary
judgment/adjudication cannot defeat the motion merely by showing a factual dispute on
just a material fact; plaintiff must show a triable issue on the material fact(s) that
defendant identifies as supportive of its motion. (Code Civ. Proc., § 437c, subd. (p)(2)
[“A defendant … has met” its “burden of showing that a cause of action has no merit if
the party has shown that one or more elements of the cause of action … cannot be
established,” at which point “the burden shifts to the plaintiff … to show that a triable
issue … exists”].) Plaintiff’s argument does not accurately reflect this principle. The
pertinent question is whether the parties’ exclusivity arrangement included an indefinite
continuation agreement. And, aside from the matter of Harris’s declaration (which we
address below), most of plaintiff’s argument in support of its contention that it
demonstrated “at least one triable issue of material fact regarding the oral contract and
promissory estoppel causes of action” does not address that question.7
7 Five of the opening brief’s six subheadings within this argument address the existence
of an exclusivity agreement between the parties. (See Cal. Rules of Court,
13
And without more, plaintiff’s assertion—both in its trial court papers and on
appeal—that defendant’s characterizations of Harris’s deposition testimony were
misleading and inaccurate does not establish a factual dispute that requires resolution by
trial. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843 [a triable issue of
material fact is an issue “requiring a trial as to any fact that is necessary under the
pleadings”]; Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th
1048, 1066-1068 & fn. 5 [affirming summary judgment for defendant who met its initial
burden, because plaintiff did not present any evidence disputing the material facts set
forth in defendant’s separate statement].) And that Harris had “many conversations with
multiple people … about ‘exclusivity,’ ” as plaintiff responded in its opposition papers,
does not contradict defendant’s evidence that Harris could not recall any specific terms of
the exclusivity agreement.8
As for Harris’s declaration, which the trial court disregarded because it
contradicted his deposition testimony that he did not recall any specific term of the
parties’ exclusivity agreement, plaintiff contends the trial court made an “improper
credibility determination” by misapplying the pertinent case law. We reject plaintiff’s
contention because it is not tailored to the appropriate standard of review. A trial court’s
judgment is ordinarily presumed to be correct, and it is the appellant’s burden to
demonstrate, based on the appellate record and with meaningful legal analysis supported
by citations to authority, that the trial court committed reversible error. (Jameson v.
Desta (2018) 5 Cal.5th 594, 608-609; In re S.C. (2006) 138 Cal.App.4th 396, 408.)
“When an appellant fails to apply the appropriate standard of review, the argument lacks
rule 8.204(a)(1)(B) [an appellant must “[s]tate each point under a separate heading or
subheading summarizing the point”].)
8 We do not consider plaintiff’s discussion of portions of Harris’s deposition that it did
not cite in its papers opposing the motion for summary adjudication. (DiCola, supra, 158
Cal.App.4th at pp. 676-677.)
14
legal force. ‘Arguments should be tailored according to the applicable standard of
appellate review.’ [Citation.] When they are not so tailored, the appellant fails to show
error in the judgment.” (People v. Foss (2007) 155 Cal.App.4th 113, 126; see Ewald v.
Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 [“counsel fails to articulate
the standard of review on appeal, in and of itself a potentially fatal omission,” because
“ ‘ “[a]rguments should be tailored according to the applicable standard of appellate
review” ’ ”].)
Abuse of discretion review applies to a trial court’s decision to disregard
statements in a declaration that contradict prior deposition testimony. (Preach v. Monter
Rainbow (1993) 12 Cal.App.4th 1441, 1451 [“In determining whether any triable issue of
material fact exists, the trial court may, in its discretion, give great weight to admissions
made in deposition and disregard contradictory and self-serving affidavits of the party”
(italics added)].) But plaintiff does not acknowledge this standard of review in its
briefing. In its opening brief, plaintiff contends the trial court “misapplied” the relevant
doctrine.9 And even after defendant, in the respondent’s brief, cited authority for the
proposition that we review the trial court’s determination to disregard statements in the
Harris declaration for an abuse of discretion, plaintiff asserted imprecisely in its reply
brief that the trial court “improperly applied” the relevant doctrine, resulting in “flawed
findings.”10
9 See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [“admissions
against interest have a very high credibility value”; if “ ‘there is a clear and unequivocal
admission by the plaintiff, himself, in his deposition,’ ” “ ‘there is no substantial evidence
of the existence of a triable issue of fact’ ” (italics omitted)].
10 Plaintiff’s argument that the trial court’s reasoning was flawed rests, in part, on the
notion that Harris’s deposition testimony reflected failures to recall, not admissions. But
as noted above, this argument is forfeited on appeal because plaintiff did not raise it in
the trial court. Further, “failure to recall does not logically contradict … evidence put
15
If we were to address the merits of this issue, we would conclude that the trial
court did not abuse its discretion in disregarding Harris’s declaration statement that
indefinite continuation was part of the parties’ exclusivity agreement. A self-serving
declaration that contradicts the declarant’s sworn testimony is not sufficient to raise a
triable issue to defeat summary judgment. (Trovato v. Beckman Coulter, Inc. (2011) 192
Cal.App.4th 319, 325.) And while it is theoretically possible that, more than a year after
his deposition, Harris remembered that indefinite continuation was a term of the parties’
exclusivity agreement despite having forgotten that term during his deposition, it was not
absurd or outside the bounds of reason for the trial court to conclude that, in context,
Harris’s declaration self-servingly contradicted his sworn testimony. (See Jones v.
Solgen Construction, LLC (2024) 99 Cal.App.5th 1178, 1203-1204 [the test for abuse of
discretion is whether the trial court exceeded the bounds of reason or exercised its
discretion in a patently absurd manner; a merely debatable ruling cannot be deemed an
abuse of discretion].)
5. Other Theories of Liability
Plaintiff contends defendant was not entitled to summary adjudication because
other legal theories supporting the oral contract allegations are apparent from a review of
the operative complaint and the record.11 The contention lacks merit, because the cases
plaintiff invokes for support are inapposite. The cases concern defendants who either
failed (1) to address a theory that a plaintiff clearly articulated in the trial court or (2) to
move for summary adjudication and sought only summary judgment.
forth by defendants and is insufficient to demonstrate the existence of a triable issue of
fact.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1122.)
11 Plaintiff identifies “the ‘series of promises’ theory” (citing Tiffany Builders, LLC v.
Delrahim (2023) 97 Cal.App.5th 536) and the notion that missing terms in a contract may
be supplied by inferences and extrinsic evidence (citing Hennefer v. Butcher (1986) 182
Cal.App.3d 492).
16
In Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, the plaintiff sued the
defendant for injuries resulting from her fall on the sidewalk abutting the defendant’s
property. Paragraph 5 of the complaint alleged the defendant breached a statutory duty to
keep the sidewalk safe. Paragraph 7 alleged the defendant breached a common law duty
to keep the sidewalk safe. (Id. at pp. 1112-1113.) The defendant’s successful motion for
summary judgment only discussed the statutory theory of liability. The plaintiff pointed
this out in her opposition to the motion, expressly invoking case law for support of the
proposition that defendant breached a common law duty. (Id. at p. 1113; see id. at p 1116
[plaintiff “made clear in her opposition papers that this was the theory she was relying
upon”].) The appellate court reversed the trial court’s grant of summary judgment,
explaining, “[a] party is not entitled to a summary judgment if the undisputed material
facts set forth are not dispositive of all the legal claims tendered by the pleadings.
[Citations.] The complaint sufficiently alleges facts to support a theory of negligence”
that the defendant’s motion for summary judgment did not address. (Id. at p. 1117, italics
added.)
Here, plaintiff does not demonstrate that it sufficiently alleged in the trial court the
other legal theories it identifies in its opening brief. That those theories may be plausible
based on the allegations is insufficient.
In Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71,
76-77, 80 and footnote 5, the appellate court reversed an order granting summary
judgment to a defendant who did not move for summary adjudication of individual
causes of action in the alternative. Likewise in Hedayati v. Interinsurance Exchange of
the Automobile Club (2021) 67 Cal.App.5th 833, 836-837, 846. While a motion for
summary judgment fails if it does not address all theories raised in plaintiff’s complaint
(id. at p. 846), defendant here moved in the alternative for summary adjudication on the
breach of oral contract cause of action.
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Accordingly, the trial court properly ruled that plaintiff failed to demonstrate a
triable issue of material fact on the question whether the parties’ exclusivity arrangement
included an indefinite continuation agreement. Thus, the trial court correctly granted
summary adjudication to defendant on plaintiff’s cause of action for breach of oral
contract.12
B. Misrepresentation Causes of Action
Plaintiff contends defendant failed to meet its initial burden on summary
adjudication as to the misrepresentation causes of action for these three reasons:
(1) Harris’s testimony that defendant relied on—“Misrepresentations. I don’t believe
they—that I’m aware if they made any misrepresentations.”—was “not … an admission”
because Harris was a “lay witness”; (2) there was insufficient context about who Harris
was referring to when he said “they”; and (3) there was insufficient clarity about whether
Harris’s lack of awareness was because defendant never made any misrepresentations or
because of a failure of recall or a misunderstanding of the legal allegations in the
operative complaint. These contentions are forfeited on appeal because plaintiff did not
raise them in its opposition papers in the trial court. (DiCola, supra, 158 Cal.App.4th at
pp. 676-677.)
Plaintiff further contends it demonstrated questions of fact on the causes of action
for misrepresentation. We are not persuaded. Plaintiff’s contention relies on the Harris
declaration and the April 30, 2021 letter from defendant ending plaintiff’s status as a
dealer. But, as we explained above, the trial court disregarded the statement in the Harris
declaration that plaintiff invokes. And while plaintiff referenced the April 30, 2021 letter
12 Plaintiff contends summary adjudication on the promissory estoppel cause of action
was improper for the same reasons that it was improper on the breach of oral contract
cause of action. Accordingly, since we conclude summary adjudication was proper on
the breach of oral contract cause of action, we conclude summary adjudication was
proper on the promissory estoppel cause of action.
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in its papers opposing summary adjudication on its misrepresentation cause of action, it
did not do so in connection with these causes of action in the operative complaint. In the
operative complaint, plaintiff alleged defendant’s officers and managers represented
(1) regarding negligent misrepresentation, that plaintiff’s “exclusive dealer contract
would continue as long as” plaintiff met its commitments and obligations and (2)
regarding intentional misrepresentation, that (a) plaintiff “would be a recognized dealer”
for defendant “as long as” plaintiff met its commitments and obligations and (b) incentive
payments would be made as “volume incentives pursuant to” the 20-21 agreement.
Thus, reliance on the April 30, 2021 letter as a basis for liability under a
misrepresentation theory was a new issue that plaintiff could not raise for the first time in
opposing summary judgment. (See Vulk v. State Farm General Ins. Co. (2021) 69
Cal.App.5th 243, 256 [“Since the operative complaint, construed broadly, does not allege
any facts related to” a specific theory of liability, “this theory cannot serve as a basis to
reverse the trial court’s grant of summary judgment”; if, after the defendant moved for
summary judgment, the plaintiff “believed he had evidence to support such a theory, it
was incumbent upon him to seek to amend the complaint at or prior to the hearing on the
motion for summary judgment”].)
Further, as the trial court observed, to the extent one of plaintiff’s theories of
intentional misrepresentation was that defendant stopped payment on the $56,000 check
in retribution for plaintiff’s lawsuit, the theory is inconsistent with the notion that, at the
time it made the representation to plaintiff, defendant knew or had reason to believe it
would not honor it. The lawsuit was filed after defendant made the alleged
representation. (See Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93
Cal.App.5th 1214, 1245-1246 [the elements of intentional misrepresentation are (1) a
misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and
justifiable reliance, and (5) resulting damage; the elements of negligent misrepresentation
are (1) the misrepresentation of a past or existing material fact, (2) without reasonable
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ground for believing it to be true, (3) with intent to induce another’s reliance on the fact
misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting
damage].)
Accordingly, the trial court did not err in granting summary adjudication to
defendant on plaintiff’s misrepresentation causes of action. Therefore, the trial court did
not err in granting summary adjudication to defendant on all of plaintiff’s causes of
action except for breach of written contract.
II
Denial of Leave to Amend
Plaintiff contends the trial court abused its discretion by denying its request for
leave to amend the operative complaint “to clarify and specify the written contracts it
alleged [defendant] had breached.” As it did in its opposition to plaintiff’s request in the
trial court, defendant contends in its respondent’s brief that Bidari v. Kelk (2023) 90
Cal.App.5th 1152 supports the proposition that the trial court had the discretion to deny
plaintiff’s request to amend as a “dilatory” tactic. Like its reply brief in the trial court,
plaintiff’s appellate briefs are silent about Bidari. We conclude that, under Bidari, the
trial court did not abuse its discretion when it denied plaintiff leave to amend the
operative complaint.
Trial courts have the discretion to allow amendment of a pleading “ ‘in furtherance
of justice, and on any terms as may be proper.’ ” (IIG Wireless, Inc. v. Yi (2018) 22
Cal.App.5th 630, 653.) The exercise of that discretion should not be disturbed on appeal
absent a clear showing of abuse. (Ibid.) If the trial court’s ruling was correct under any
theory of the law applicable to the case, we can affirm it on that ground, regardless of
other grounds for the ruling. (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d
at p. 19.)
In Bidari, the appellate court observed that (1) leave to amend may be denied “ ‘if
there is prejudice to the opposing party, such as delay in trial,’ ” and (2) “ ‘long
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unexcused delay is sufficient to uphold a trial judge’s decision to deny the opportunity to
amend pleadings.’ ” (Bidari v. Kelk, supra, 90 Cal.App.5th at p. 1173.) Given those
principles, the court reasoned that because the plaintiffs who sought to amend their
complaint in the trial court were “far from diligent[]” in pursuing the proposed amended
causes of action and “offer[ed] no explanation for their delay,” the trial court did not
abuse its discretion in denying leave to amend, as the effort “smack[ed] of
gamesmanship.” (Id. at pp. 1173-1174.) The court “stress[ed] that [plaintiffs] [were] not
seeking to assert new legal theories that they did not think to allege initially, but rather
theories of which [they] ha[d] long been well aware.” (Id. at p. 1173, italics omitted.)
Here, plaintiff explained to the trial court that it sought to amend its cause of
action for breach of written contract so that it “reflect[ed] damages clarified through
discovery.” Defendant argued in opposition that plaintiff “unreasonably delayed …
seeking amendment” as a “dilatory tactic,” and asserted that while the operative
complaint alleged the breach of a single contract and damages of roughly $56,000, the
proposed amendments alleged the “breach of an additional 20 unspecified contracts with
alleged damages exceeding $1.2 million.” One of the trial court’s grounds for denying
leave to amend was that plaintiff’s November 2024 request “appear[ed] to be a type of
sandbagging at the 11th hour before trial,” “[w]ith no discovery being exchanged since
May 2024.” That reasoning, indicating a determination of purposeful delay in seeking
amendment, is consistent with the “gamesmanship” discussion in Bidari. Defendant
cited Bidari in its opposition below and in its respondent’s brief, but plaintiff does not
discuss the case in its briefing. It is not our duty to make arguments for a party. (Allen v.
City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Accordingly, plaintiff has failed to
demonstrate that the trial court abused its discretion in denying leave to amend.
This conclusion makes it unnecessary for us to address the other grounds the trial
court articulated when it denied leave to amend, including that the defense would have
been prejudiced by permitting new theories of the case at that “late date,” and that the
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defense would not have time to engage in the discovery “required to meet the new
theories.”
III
In Limine Rulings
Plaintiff contends the trial court abused its discretion in denying the in limine
motion to exclude defendant’s late-produced evidence and in granting defendant’s in
limine motion to exclude evidence unrelated to defendant’s alleged breach of the 20-21
agreement by putting a “stop payment” on the rebate check that it sent to plaintiff. We
are not persuaded.
Regarding the denial of plaintiff’s in limine motion, plaintiff has not carried its
burden to show prejudice. (Rokeby-Johnson v. Aquatronics International, Inc. (1984)
159 Cal.App.3d 1076, 1085 [an appellant challenging an in limine ruling must show “an
abuse of discretion on the part of the trial court which resulted in prejudice”]; Audish v.
Macias (2024) 102 Cal.App.5th 740, 751 [appellant’s burden to establish prejudice by
supplying the reviewing court with cogent argument supported by citation to the record
and legal analysis].) Plaintiff contends it was prejudiced by defendant’s late disclosure,
because it deprived plaintiff of “a meaningful opportunity to analyze the information or
conduct follow-up discovery.” We reject this conclusory assertion that lacks any
explanation regarding how a more favorable result might have been achieved in the
absence of the challenged ruling. (See DiRaffael v. California Army National Guard
(2019) 35 Cal.App.5th 692, 718 [appellant had to show a reasonable probability that in
the absence of the purported error, a result more favorable to it would have been reached;
“appellant makes general claims of prejudice … but never explains how those errors
affected the outcome of his case”; those “conclusory assertions of prejudice are
insufficient”].)
As for the trial court’s ruling granting defendant’s motion in limine, plaintiff
implicitly concedes that the merits of that ruling rise and fall with the merits of the trial
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court’s ruling denying plaintiff leave to amend. Accordingly, since we have concluded
the trial court did not abuse its discretion in denying leave to amend, we reject plaintiff’s
challenge to this in limine ruling.
IV
The Stipulation
Plaintiff contends the trial court improperly interpreted the parties’ stipulation,
which was “never meant to dispose of” its remaining claim for breach of written contract.
We are not persuaded.
We agree with the parties that we review the trial court’s interpretation of their
stipulation de novo. (Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 726-
727.) The stipulation expressly contemplated that defendant could argue to the trial court
that the stipulation (“to damages in the total amount of $17,684.35 for rebates earned
under [the 20-21 agreement] on homes and products invoiced and shipped” by defendant
to plaintiff “between March 29, 2020 and April 3, 2021”) left nothing to be tried.
Paragraph 7 of the stipulation states it would “not affect and shall not prevent …
Defendant’s ability” to argue that the 20-21 agreement “does not extend beyond April 3,
2021, that it does not apply to homes and products invoiced and shipped after April 3,
2021, and that there are no issues remaining to be tried as a result of this stipulation.”
(Italics added.) Defendant made that argument and the trial court agreed with it. The
trial court did not err in interpreting the stipulation.
As for the merits of the trial court’s ruling that there was nothing left to try, the
trial court reasoned this was so because the stipulation resolved the breach of written
contract cause of action, and plaintiff was “attempt[ing] to seek other money under the
VIP agreement outside th[e] narrow time period” contemplated by the 20-21 agreement,
and “[n]one of that is in the pleadings.” We agree.
By its own terms, the 20-21 agreement ended on April 3, 2021. The operative
complaint’s theory of breach of written contract was that defendant violated the 20-21
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agreement. There is no suggestion in the operative complaint that the 20-21 agreement
somehow continued in effect after April 3, 2021. But in the hearing on the day before
trial was to begin, plaintiff articulated a theory that defendant extended the 20-21
agreement (orally, in writing, or by conduct; it is unclear) and continued to be bound by it
until the April 30, 2021 letter ended the parties’ business relationship. Plaintiff thereby
sought to advance a new theory that was not pleaded in the operative complaint. This is
akin to an effort to amend the pleadings to include new facts and theories on the first day
of trial. The trial court was well within its discretion to refuse to allow this.
(See Avedissian v. Manukian (1983) 141 Cal.App.3d 379, 382-384 [“we do not see any
abuse of discretion in the trial court’s refusal to broaden the issues by permitting
appellants’ pleadings to be amended so as to reflect” “new facts and new theories not
previously included in the complaint”; “[t]o seek an amendment … on the first day of
trial was not in our opinion an act of due diligence”].)
DISPOSITION
The judgment is affirmed. Defendant is entitled to recover its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/
BOULWARE EURIE, J.
We concur:
/s/
RENNER, Acting P. J.
/s/
KRAUSE, J.
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