Filed 7/14/26 Intel Corp. v. Freedom Circle Venture CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

INTEL CORPORATION, H053201
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 24CV444337)

v.

FREEDOM CIRCLE VENTURE,
LLC, et al.,

Defendants and Respondents.

This appeal arises from an agreement between Intel Corporation (Intel)
and Freedom Circle Venture, LLC (Freedom Circle Venture), an entity owned
and managed by Greystar Real Estate Partners, LLC and related entities
(together, Greystar1), for the sale of real property. After Freedom Circle
Venture refused to make a “post-closing payment” of $20 million, Intel sued
Freedom Circle Venture and Greystar for breach of contract and other claims.
Freedom Circle Venture and Greystar separately demurred to the
complaint. The trial court sustained both demurrers after concluding that

1 This opinion uses “Greystar” to refer to defendants Greystar Real

Estate Partners, LLC (Greystar Real Estate), GS Freedom Circle Holdings,
LLC (GS Freedom Circle), and Greystar Investment Group, LLC (Greystar
Investment Group).
the agreement was not reasonably susceptible to Intel’s interpretation. Intel
declined to amend the complaint, and the court entered judgment against it.
On appeal from the judgment, Intel contends it adequately stated a
cause of action for breach of contract, which to survive demurrer requires
only that the plaintiff show the agreement is reasonably susceptible to the
meaning alleged in the complaint. Intel further maintains the trial court
erred in construing the agreement with respect to the other asserted causes
of action and allegations of agency and alter ego liability as to Greystar.
We agree and conclude that Intel has stated cognizable claims for
breach of contract and breach of the implied covenant of good faith and fair
dealing against Freedom Circle Venture. We further decide Intel has
adequately alleged theories of agency and alter ego liability against Greystar.
We therefore reverse the judgment and direct the trial court to vacate the
order sustaining defendants’ demurrers and enter a new order overruling the
demurrers as to all causes of action in the complaint.
I. FACTS AND PROCEDURAL BACKGROUND
On appeal from the sustaining of a demurrer, we accept as true the
following, well-pleaded facts alleged in the complaint. (Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1; Yvanova v. New
Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova).)
A. Facts
Intel is the former owner of 13.34 acres of undeveloped property located
on Freedom Circle in Santa Clara (the property). At the time of the events at
issue, the property was zoned for office development.
Greystar is a global real estate company engaged in real estate
development and rental housing management. Greystar, as relevant to this
dispute, operates through its subsidiary entities, including Greystar

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Investment Group, which is the manager or member of GS Freedom Circle,
which in turn is the manager or member of Freedom Circle Venture.
Greystar Real Estate is thus the “ultimate parent” of Freedom Circle Venture
(the entity that purchased the property in 2017).
1. The Agreement
In 2015, Intel solicited and received multiple purchase offers for the
property. Intel received an offer from Greystar GP, LLC, an affiliate of
Greystar. In June 2015, Intel entered into an agreement with Greystar GP
II, LLC (Greystar GP II), another Greystar affiliate, to purchase the property
for $55 million. Ali Warner, a senior managing director and representative of
Greystar, served as its lead negotiator for the transaction.
The agreement, signed by Warner and titled “Purchase Agreement and
Escrow Instructions” (some capitalization & boldface omitted) (agreement),
described Greystar GP II’s intent to rezone the property. Because the
property was zoned only for office use, Greystar would need city approval for
the desired development.
The agreement set a closing date of November 17, 2015, defined Intel
as the “ ‘seller’ ” and Greystar GP II as the “ ‘buyer,’ ” and further specifically
defined the terms “ ‘project’ ” and “ ‘project approvals.’ ”2 (Boldface omitted.)
The agreement stated, “ ‘Project’ means a mixed use office and market rate
apartment community, together with related amenities, to be developed on
the property. ‘Project approvals’ shall mean all applications, improvement
plans, drawings and specifications, site plans, permits, license, maps, zoning

2 The relevant documents capitalize the defined terms “seller,” “buyer,”

“project,” “project approvals,” “agreement” “existing restrictions,” “project
approval date,” and “post-closing payment.” For readability, we omit the
initial capital when quoting from the contract documents and when
referencing these defined terms.
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changes, specific plan amendments, general plan amendments, entitlements
approvals, agreements, documents and other instruments necessary or
appropriate to obtain from the City of Santa Clara . . . for the design,
subdivision, development, construction, use and operation of the project on
the [property].” (Boldface omitted.)
The agreement further addressed the process for Greystar GP II to
obtain approval for the project in several provisions.
Section 3.3(a) on “pursuit of project approvals” (capitalization &
underlining omitted) stated: “Seller hereby authorizes buyer to pursue and
acquire the project approvals for the project . . .. Seller hereby agrees to
execute those consents and/or applications which may be required by the
[c]ity or other [g]overnmental [a]gency for buyer to process and obtain the
project approvals prior to buyer’s purchase of same.”
Section 3.7 on “removal of existing restrictions” (capitalization &
underlining omitted) described Intel’s disclosure of the existing development
restrictions on the property and stated: “Seller acknowledges that buyer has
disclosed to seller that the project that buyer intends to construct on the
property requires both office and residential use of the property . . .. Buyer
intends to cause the existing restrictions to either be terminated so they no
longer affect the property and are not shown on buyer’s [t]itle [p]olicy or
modified in a manner acceptable to buyer in buyer’s sole discretion. Seller
agrees to reasonably cooperate with buyer, at no cost or liability to seller, in
connection with buyer’s efforts to either terminate the existing restrictions or
modify such existing restrictions in a manner acceptable to buyer.”
The parties also included, in section 7.5, an integration clause stating
that the agreement “constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and may not be modified,

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amended or otherwise changed in any manner except by a writing executed
by the party against whom enforcement is sought.”
After Intel and Greystar GP II executed the agreement, Greystar
pursued rezoning for the proposed development. Representatives of Greystar
presented a development plan to the City of Santa Clara (City) that included
a proposal to build three, high-density housing units on the property. Some
City council members opposed the scale of the proposed residential
development. Uncertain whether the City would approve rezoning the
property to permit the development that Greystar sought, in September 2015
Greystar GP II terminated the agreement with Intel.
2. The First Amendment
The following month, Warner contacted Intel about assigning Greystar
GP II’s interest in the agreement to Freedom Circle Venture. Intel
understood that Freedom Circle Venture was a newly formed entity managed
by GS Freedom Circle. In October 2015, Intel entered into a “Reinstatement
and First Amendment to Purchase Agreement and Escrow Instructions” with
Freedom Circle Venture (first amendment). Warner again led the
negotiations and signed the first amendment on behalf of Freedom Circle
Venture.
The first amendment reinstated the terms of the prior agreement,
stated that Greystar GP II had assigned its interest in that agreement to
Freedom Circle Venture, and rescinded Greystar GP II’s termination notice.
It stated that the parties “agree that, except as modified by this
[a]mendment, the terms and provisions of the [o]riginal agreement shall be in
full force and effect.”
As for the terms of the original agreement, the parties agreed that
“[i]nitially capitalized terms not defined herein shall have the same meaning

5
as set forth in the [o]riginal agreement.” The first amendment modified
certain dates in the agreement, including the closing date, which it redefined
as May 17, 2017. It also redefined the purchase price for the property as $60
million. The first amendment did not redefine the terms for “ ‘project’ ” or
“ ‘project approval.’ ” It stated that the “agreement, as modified by this [first
amendment], shall constitute the entire agreement of the parties with respect
to the subject matter of this agreement. The [o]riginal agreement, as
amended by this [first amendment], shall remain unchanged and continue in
full force and effect.”
Greystar continued its efforts to obtain City approval for rezoning the
property. Intel supported the efforts by providing written consent for the
application prior to the closing of the sale of the property. As the May 2017
closing date approached, the City’s approval of the rezoning application
remained uncertain. Intel entered another round of negotiations with
Warner and Greystar representatives. Warner sought to extend the closing
date to allow additional time for the City to approve the proposed rezoning;
however, Intel wanted to close the sale which had been pending since 2015.
3. The Second Amendment
Intel and Greystar negotiated a second amendment to the agreement
that addressed both sides’ concerns. Intel agreed to sell the property for the
reduced price of $35 million, and Freedom Circle Venture agreed to complete
the purchase regardless of the status of the zoning (i.e., subject to the existing
zoning restrictions) and to pay Intel an additional $20 million if Freedom
Circle Venture obtained the zoning approvals it sought for the property
within a stated period. This “essentially reallocated the risk that the
property would not be rezoned for residential development to Intel. Intel
received a reduced payment of $35 million at closing, but by way of the $20

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million post[-]closing payment, would share in the increased value of the
property if it was rezoned to allow residential development in the future.”
In May 2017, Intel and Freedom Circle Venture executed the “Second
Amendment to Purchase Agreement and Escrow Instructions” (some
capitalization omitted) (second amendment). Warner again signed on behalf
of Freedom Circle Venture. The second amendment set the closing date to
June 30, 2017, redefined the purchase price set forth in section 1.1 of the
agreement to $35 million, and established a “[p]ost[-c]losing payment”
provision.
That provision acknowledged Freedom Circle Venture’s “intent[] to
process the project approvals following the [c]losing [d]ate” and stated that
when requested by Intel, Freedom Circle Venture “shall provide to seller an
update concerning such buyer’s progress in the project approvals.” It further
established the timeline for the post-closing payment, providing that “[i]f the
project approval date (as defined below) occurs on or before June 30, 2025,
then, not later than thirty (30) days following the project approval date,
buyer shall pay to seller, in immediately available funds, . . . $20[ million].”
Section 3(c) of the second amendment defined “project approval date”
(boldface omitted) as “the date that the buyer receives the project approvals
requested by buyer from the City and other applicable [g]overnmental
[a]gencies for the project.”
As with the first amendment, the second amendment expressly stated
that any “[i]nitially capitalized terms” not defined in the second amendment
“shall have the same meaning as set forth in the [o]riginal agreement.” It
provided that the original agreement, as modified by the second amendment,
“shall constitute the entire agreement of the parties with respect to the
subject matter of this agreement. The [o]riginal agreement, as amended by

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this [a]mendment, shall remain unchanged and continue in full force and
effect.”
The parties closed the sale of the property in late June 2017, and
Freedom Circle Venture paid Intel the $35 million purchase price. Warner
wrote to Intel, “ ‘on behalf of the Greystar team’ ” to “ ‘thank [Intel] for
working with us to close on the Freedom Circle land parcel.’ ”
4. Intel’s Request for Post-closing Payment
During the next five years, Intel requested, and Greystar employees
provided, periodic updates pursuant to section 3(a) of the second amendment.
Intel requested and received updates from a Greystar representative in
August 2018, December 2021, and March 2022. In August 2018, Greystar’s
senior director of development Jonathan Fearn informed Intel of the expected
approval timeline and stated “ ‘we feel good about our position at this time.’ ”
Jimmy Ly, another Greystar employee, informed Intel in March 2022 that
“ ‘we remain optimistic that we’ll be fully entitled by the end of May.’ ”
After repeated requests by Intel in September and October 2022 for an
update, Fearn reported that in July 2022, the City had approved a project for
over 1,000 residential units on the property (comprising three residential
apartment buildings on the property with ground floor retail space).
Pursuant to section 3(b) of the second amendment Intel requested the post-
closing payment of $20 million. Fearn replied that the payment was due
“only ‘upon the entitlement of a mixed-use office and apartment project, not a
rezoning of the property to high density residential.’ ” Greystar asserted that
no post-closing payment was owed because the project had not been rezoned
as defined in the agreement.
Intel disagreed, but representatives for Greystar and Freedom Circle
Venture declined to engage with Intel to resolve the dispute.

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 B. Procedural History
In July 2024, Intel filed this action against Freedom Circle Venture and
Greystar (together, defendants), seeking to enforce the second amendment
and receive the $20 million post-closing payment.
Intel alleged that because Freedom Circle Venture obtained approval
within the contractual timeframe of the second amendment to rezone the
property to “allow[] the more valuable residential development,” Freedom
Circle Venture had “receive[d] the project approvals requested by [it],”
triggering the requirement that it make the post-closing payment to Intel. It
also alleged that although Freedom Circle Venture nominally was the buyer
of the property, it operated as an agent and alter ego of Greystar, which
controlled all aspects of the negotiation and execution of the agreement and
amendments. Intel alleged that, while it performed fully under the
agreement, defendants breached the second amendment by refusing to pay
the $20 million.
Intel alternatively alleged that if, as claimed by Greystar in its
communications with Intel, the project approvals required to trigger the post-
closing payment “do not include the approvals actually obtained by Freedom
Circle Venture, then [d]efendants have breached their duty of good faith and
fair dealing owed to Intel under the agreement, wrongfully depriving,
impairing, and injuring Intel’s enjoyment of its rights, benefits, and full value
of the agreement by, among other things, failing to pursue the project
approvals that would have triggered Freedom Circle Venture’s obligation to
pay Intel the $20 million post[-]closing payment provided for in [s]ection 3(b)
of the [s]econd [a]mendment.”
Intel further alleged that if the project approvals obtained by Freedom
Circle Venture do not trigger the post-closing payment, it is due to actions by

9
Greystar, whose conduct caused Freedom Circle Venture to stop pursuing the
project approvals that would have triggered the payment obligation. Intel
alleged that Greystar thus disrupted and interfered with Freedom Circle
Venture’s performance under the agreement.
Based on the above facts, Intel asserted against all defendants causes
of action for (1) breach of contract, (2) breach of the implied covenant of good
faith and fair dealing, and (3) declaratory relief. As to Greystar (specifically,
GS Freedom Circle, Greystar Investment Group, and Greystar Real Estate
Partners), Intel asserted an additional cause of action for intentional
interference with contractual relations.
Greystar and Freedom Circle Venture separately demurred to the
complaint. Freedom Circle Venture asserted that, assuming the allegations
to be true, the complaint failed to state a cause of action for breach of contract
under the plain and unambiguous terms of the agreement. It argued that
Intel “cannot pursue a breach of contract cause of action against Freedom
Circle that is unsupported by—and in fact is directly contradicted by—the
clear and express terms of the” agreement and second amendment. Freedom
Circle Venture also maintained the first cause of action was vague and
uncertain to the extent it alleged breach of contract in relation to a project
that is not described or defined by any term of the agreement or second
amendment. As to the second cause of action, Freedom Circle Venture
argued it was superfluous (based on the same allegations forming the breach
of contract cause of action) and failed as a matter of law because it sought to
impose duties beyond those incorporated in the terms of the agreement.
Freedom Circle Venture asserted the third cause of action for declaratory
relief was redundant of Intel’s breach of contract cause of action.

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 Greystar challenged the complaint on separate grounds. It asserted
that the first three causes of action could not be maintained against GS
Freedom Circle, Greystar Investment Group, and Greystar Real Estate
Partners because they were not parties to the agreement or second
amendment. Greystar contended that Intel’s alter ego and agency theories of
liability for the noncontracting entities could not be applied to bind a parent
entity to its subsidiary’s contract and, in any event, the complaint failed to
contain allegations that would support such an application of vicarious
liability. Greystar further argued Intel’s intentional interference cause of
action failed as matter of law, including because Greystar was not a stranger
to the agreement (as required for an intentional interference claim) and
because there was no allegation that the noncontracting entities interfered
with any benefit to which Intel was entitled under the contract (since the
agreement did not require Freedom Circle Venture to pursue approval for the
defined mixed-use project). Greystar reiterated Freedom Circle Venture’s
arguments as to the alternatively pleaded second cause of action for breach of
the covenant of good faith and fair dealing.
Intel opposed both demurrers, and defendants filed separate replies.
The trial court issued a written order after hearing (order). It
sustained both demurrers as to all four causes of action and granted Intel
leave to amend.
In its order, the trial court concluded that the language of the
agreement and second amendment was not “reasonably susceptible” to the
meaning ascribed in the complaint. The court found that “project” is defined
in the agreement as mixed-use office and residential development, and while
the second amendment altered and redefined parts of the agreement
(extending the “project approval date” and adding the “post[-]closing

11
payment”), it did not change or alter the definitions of “project” or “project
approvals.” The court held that the agreement and second amendment were
not reasonably susceptible to Intel’s interpretation “[b]ased on what is
currently before the [c]ourt.”
As to the second cause of action for breach of the implied covenant of
good faith and fair dealing, the trial court rejected Intel’s argument that a
fundamental aspect of the parties’ agreement was their intent that the
discounted price and post-closing payment be tied to Freedom Circle
Venture’s continued pursuit of the project approvals. The court reasoned that
the language of the agreement cannot be so construed, because the second
amendment stated only that the post-closing payment would be due “[i]f the
project approval date (as defined below) occurs” (boldface omitted), not that
Freedom Circle Venture was required to pursue those project approvals. The
court concluded that Intel’s claim for breach of the implied covenant of good
faith and fair dealing depended on obligations not stated and/or imposed in
the agreement and amendments.
Citing its decisions on the first and second causes of action, the trial
court sustained the demurrer as to the declaratory relief cause of action due
to the lack of any present controversy.
The trial court also sustained Greystar’s demurrer as to the fourth
cause of action for intentional interference with contractual relations. Based
on its prior conclusion that the language of the agreement and second
amendment did not require Freedom Circle Venture to pursue the project
approvals defined in the agreement, the court reasoned that Greystar could
not have caused a breach or disruption of the contractual relationship by
causing Freedom Circle Venture to pursue an alternative project that did not
trigger the post-closing payment.

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 Intel elected not to amend the complaint. The trial court entered
judgment in favor of defendants, from which Intel now appeals.
II. DISCUSSION
Intel contends its complaint alleges a reasonable construction of the
post-closing provision based on the text, purpose, and circumstances of the
agreement and second amendment. It maintains the trial court erred in
construing the agreement narrowly based on the defined terms “ ‘project’ ”
and “ ‘project approvals’ ” and without fairly considering the second
amendment’s provision establishing a “ ‘project approval date.’ ” Intel argues
that in so doing, the court misapplied the pleading standard on demurrer for
a breach of contract claim, misinterpreted Intel’s alternative claim for breach
of the implied covenant of good faith and fair dealing as imposing obligations
beyond those contracted for in the agreement and second amendment, and
dismissed the claims against Greystar on the same erroneous grounds.
Defendants counter that the trial court correctly construed the
agreement in sustaining the demurrers. Both Greystar and Freedom Circle
Venture assert that the agreement required Freedom Circle Venture to pay
Intel the $20 million post-closing payment if the “project approval date” as
defined in the second amendment occurred before June 30, 2025, where
“project approval date” is the date by which Freedom Circle Venture “receives
the project approvals requested by [it] . . . for the project,” and “project
approvals” and “project” are specifically defined in the agreement.
Freedom Circle Venture argues that the terms of the agreement and
second amendment are unambiguous and not reasonably susceptible to
Intel’s proposed interpretation, which would rewrite several defined terms
and impose additional obligations on Freedom Circle Venture. Greystar
further maintains that nothing in the agreement or amendments required

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Freedom Circle Venture to pursue a specific development project but rather
reserved to it “sole discretion” over what development approvals it would
seek. Greystar also argues that its entities are not parties to the agreement,
and Intel has failed to establish a cognizable claim for liability based upon
the theory that Freedom Circle Venture was either its alter ego or agent.
A. Standard of Review
Where, as here, a complaint is sustained with leave to amend and the
plaintiff elects not to avail itself of that opportunity but to stand on its
pleading, the plaintiff may challenge the order sustaining the demurrer by
appealing from the ensuing judgment of dismissal. (Shaw v. Los Angeles
Unified School Dist. (2023) 95 Cal.App.5th 740, 753 (Shaw).) On appeal from
the judgment of dismissal, we review de novo the trial court’s order
sustaining the demurrer. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.) A
demurrer tests whether the complaint states facts sufficient to constitute a
cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)
In reviewing a demurrer order, “we accept the truth of material facts
properly pleaded in the operative complaint, but not contentions, deductions,
or conclusions of fact or law.” (Yvanova, supra, 62 Cal.4th at p. 924.) “We
independently evaluate the challenged pleading, construing it liberally,
giving it a reasonable interpretation, reading it as a whole, and viewing its
parts in context.” (Shaw, supra, 95 Cal.App.5th at p. 753; accord, Blank,
supra, 39 Cal.3d at p. 318; Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 38 (Quelimane).) “If the complaint states a cause of
action under any theory, regardless of the title under which the factual basis
for relief is stated, that aspect of the complaint is good against a demurrer.”
(Quelimane, at p. 38; Shaw, at p. 754.)

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 The plaintiff’s election not to amend the complaint is treated on appeal
as an admission that “the complaint contained the strongest statement of the
plaintiff’s cause or causes of action.” (Lyles v. Sangadeo-Patel (2014) 225
Cal.App.4th 759, 764; accord, Shaw, supra, 95 Cal.App.5th at p. 753.) “We
must presume the [complaint] as pled is the strongest case appellant can
make.” (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th
237, 244.) “Thus, unlike when a demurrer is sustained without leave to
amend, we determine only whether the plaintiff stated a cause of action, and
not whether the plaintiff might be able to do so.” (Lyles, at p. 764.)
B. Breach of Contract (First Cause of Action)
Greystar and Freedom Circle Venture each demurred to Intel’s first
cause of action for breach of contract. We address together the arguments
pertaining to the sufficiency of the pleading to state a breach of contract
claim. We separately address Greystar’s contention that Intel has failed to
plead liability as to the noncontracting entities for the alleged breach of
Freedom Circle Venture.
1. Additional Background
Intel alleged that when it entered into the second amendment with
Freedom Circle Venture in May 2017, the property remained zoned for office
use only. Greystar, the parent company of Freedom Circle Venture, had been
unsuccessful in its efforts to obtain approval from the City to obtain rezoning
that would allow for its more valuable use as a residential development.
Freedom Circle Venture and Intel thus “agreed to shift some of the financial
risk of Freedom Circle Venture not obtaining” the rezoning approval by
agreeing to a reduced sale price of $35 million by the June 30, 2017 closing
date regardless of zoning approvals, and a $20 million post-closing payment

15
to Intel if the City approved “at least some residential development on the
[p]roperty by June 30, 2025.”
Intel alleged that Freedom Circle Venture also agreed, as part of the
second amendment, to provide Intel with “updates on its progress in
obtaining the project approvals upon which the $20 million post[-]closing
payment depended.” Pursuant to that provision of the second amendment,
for approximately five years after closing the sale of the property, Intel
requested and received periodic updates from Greystar employees concerning
Freedom Circle Venture’s progress in the “ ‘project approvals.’ ”
According to Intel, Freedom Circle Venture and Greystar “got
everything they bargained for,” triggering the post-closing payment
obligation, when they obtained approval for the development of three
residential apartment buildings on the property with ground-floor retail
space. Intel alleged that because Freedom Circle Venture “obtained the
project approvals for its project on or before October 4, 2022, and was
permitted to proceed with its desired residential development” but “has
refused to pay Intel the $20 million post[-]closing payment,” it breached its
obligation under sections 3(b) and (c) of the second amendment.
The post-closing payment provisions set forth in section 3 of the second
amendment state:
“(a) Seller acknowledges that buyer intends to process the project
approvals following the [c]losing [d]ate. When requested by seller, buyer
shall provide to seller an update concerning such buyer’s progress in the
project approvals.”
“(b) If the project approval date (as defined below) occurs on or before
June 30, 2025, then, not later than thirty (30) days following the project
approval date, buyer shall pay to seller, in immediately available funds, [$20

16
million] (‘post[-]closing payment’). Buyer shall promptly notify seller in
writing if and when the project approval date occurs. . . .” (Boldface
omitted.)
“(c) For purposes of this [a]mendment, ‘project approval date’ shall
mean the date that the buyer receives the project approvals requested by
buyer from the City and other applicable [g]overnmental [a]gencies for the
project.” (Boldface omitted.)
2. Principles of Contract Interpretation on Demurrer Review
In matters of contract interpretation, our fundamental goal “is ‘to give
effect to the mutual intention of the parties as it existed at the time of
contracting.’ ” (Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th
506, 530 (Hewlett-Packard); see Civ. Code, § 1636; Waller v. Truck Ins.
Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).) We look to the language of
the contract and ascertain the parties’ intent, if possible, based solely on the
contract’s written provisions. (Hewlett-Packard, at p. 531, citing Civ. Code,
§§ 1638, 1639.) We interpret the written provisions according to their
“ ‘ “clear and explicit” meaning . . ., interpreted in their “ordinary and popular
sense,” . . . .. Thus, if the meaning a layperson would ascribe to contract
language is not ambiguous, we apply that meaning.’ ” (Hewlett-Packard, at
p. 531, quoting AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 822.)
“At the same time, we also recognize the ‘interpretational principle that
a contract must be understood with reference to the circumstances under
which it was made and the matter to which it relates. (Civ. Code, § 1647).’ ”
(Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th
744, 752.) A contract provision “will be considered ambiguous when it is
capable of two or more constructions, both of which are reasonable.” (Waller,
supra, 11 Cal.4th at p. 18.) “But language in a contract must be interpreted

17
as a whole, and in the circumstances of the case, and cannot be found to be
ambiguous in the abstract. [Citation.] Courts will not strain to create an
ambiguity where none exists.” (Id. at pp. 18–19.)
On review from the sustaining of a demurrer, to decide whether a
plaintiff has stated a cause of action for breach of contract, “we must
determine whether the alleged agreement is ‘reasonably susceptible’ to the
meaning ascribed to it in the complaint.” (Klein v. Chevron U.S.A., Inc.
(2012) 202 Cal.App.4th 1342, 1384 (Klein).) “Where written instruments are
the foundation of a claim . . . and are incorporated in a pleading, the recitals
of the instruments take precedence over allegations in the pleading itself
unless the incorporated instruments are susceptible to more than one
interpretation.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991)
231 Cal.App.3d 457, 468; accord, Aragon-Haas v. Family Security Ins.
Services, Inc. (1991) 231 Cal.App.3d 232, 239 (Aragon-Haas) [“[A] general
demurrer . . . admits not only the contents of the instrument but also any
pleaded meaning to which the instrument is reasonably susceptible.”].)
Thus, “[i]f the allegations in the complaint conflict with attached
exhibits, we rely on and accept as true the contents and legal effect of the
exhibits. [Citations.] However, ‘if the exhibits are ambiguous and can be
construed in the manner suggested by plaintiff, then we must accept the
construction offered by plaintiff.’ ” (Chisom v. Board of Retirement of Fresno
County Employees’ Retirement Assn. (2013) 218 Cal.App.4th 400, 410–411
(Chisom).) “ ‘So long as the pleading does not place a clearly erroneous
construction upon the provisions of the contract, in passing upon the
sufficiency of the complaint, we must accept as correct plaintiff’s allegations
as to the meaning of the agreement.’ ” (Aragon-Haas, supra, 231 Cal.App.3d
at p. 239.) On the other hand, “for purposes of a demurrer, a court is not

18
required to accept as true a plaintiff's allegations of contractual terms where,
in light of the written agreement attached to the pleading, such allegations
would place a ‘clearly erroneous construction upon the provisions’ of the
attached agreement.” (Chisom, at pp. 415–416.)
So, too, although extrinsic evidence (or parol evidence) cannot be used
to add to or vary the terms of an integrated agreement, it may be admitted
“to explain what the parties meant by the language they used.” (Aragon-
Haas, supra, 231 Cal.App.3d at p. 240; Hewlett-Packard, supra, 65
Cal.App.5th at p. 531.) California courts have adapted the parol evidence
rule3 for demurrer review, where the admissibility of evidence is not at issue
but parol evidence alleged in the complaint may need to be addressed.
As explained by one appellate court: “In the context of a demurrer, the
court must conditionally consider the parol evidence alleged in the complaint,
to determine if it would be relevant to prove a meaning to which the language
of the instrument is reasonably susceptible. Thus, trial courts err if they

3 The California Supreme Court, in a non-demurrer case, explained the

appropriate test for the admissibility of extrinsic evidence: “The test of
admissibility of extrinsic evidence to explain the meaning of a written
instrument is not whether it appears to the court to be plain and
unambiguous on its face, but whether the offered evidence is relevant to
prove a meaning to which the language of the instrument is reasonably
susceptible.” (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging
Co. (1968) 69 Cal.2d 33, 37.) Thus, “a court may preliminarily consider all
credible evidence offered to prove the intention of the parties to a contract,
even if a disputed term appears to the court to be unambiguous on the face of
the instrument.” (Montrose Chemical Corp. of California v. Superior Court
(2025) 114 Cal.App.5th 889, 897, review granted Dec. 30, 2025, S293914.) In
Montrose, the appellate court denied a petition for writ of mandate
challenging the trial court’s exclusion of extrinsic evidence offered to
interpret disputed language in an insurance contract where the language was
the subject of prior judicial opinions construing the same policy language.
(Id. at pp. 898–899.)
19
refuse to consider the alleged parol evidence on the ground that no parol
evidence of any sort is pertinent because the particular contract in dispute is
unambiguous. But there may be no error if the trial court conditionally
accepts as true that the plaintiff can proffer specified parol evidence and,
having considered the parol evidence allegations, then determines as a
matter of law that the parol evidence alleged must be disregarded because,
for whatever reason, the contract is not reasonably susceptible of the
interpretation plaintiff alleged.” (George v. Automobile Club of Southern
California (2011) 201 Cal.App.4th 1112, 1122 (George).)
Whether the contract is ambiguous is a question of law. (Aragon-Haas,
supra, 231 Cal.App.3d at p. 239.) On appeal, we apply de novo review in
construing the contract. (Hewlett-Packard, supra, 65 Cal.App.5th at p. 531.)
3. Analysis
Intel contends that the trial court’s interpretation of the agreement and
second amendment misapplied the pleading standard for demurrer review of
a breach of contract claim. It argues that the court dismissed Intel’s claims
based on a limited textual analysis that failed to analyze the agreement’s
terms in light of the complaint’s allegations concerning its circumstances and
purpose. Intel maintains that it alleged a reasonable construction of the
second amendment that gives effect to its text, fulfills its purpose, and is
consistent with Intel’s alleged extrinsic evidence concerning the parties’
course of conduct. Intel asserts that because its alleged interpretation is not
“ ‘clearly erroneous’ ” under the instrument, it must be accepted as true on
demurrer review. (See Aragon-Haas, supra, 231 Cal.App.3d at p. 239.)
Freedom Circle Venture counters that when the contract language is
unambiguous and the plaintiff’s alleged interpretation “ ‘clearly erroneous,’ ”
the trial court may construe the contract as a matter of law and need not

20
treat the allegation as true. (See Chisom, supra, 218 Cal.App.4th at pp. 410–
411.) Greystar similarly argues that the agreement and second amendment
unambiguously provided that the post-closing payment would occur only if
Freedom Circle Venture received the “ ‘project approvals’ . . . for the
‘project,’ ” defined as a “ ‘a mixed use office and market rate apartment
community.’ ” As it is undisputed that Freedom Circle Venture did not
receive approval for a mixed-use project, Greystar asserts that Intel cannot
state a cause of action for breach of contract. Therefore, the noncontracting
Greystar entities cannot be liable, even if Intel successfully alleged alter ego
or agency liability.
To assess Intel’s and defendants’ arguments, we consider the text and
language of the agreement and second amendment, the agreement’s alleged
context, purpose, and circumstances, and any extrinsic evidence Intel has
alleged may be relevant.
Starting with the written provisions of the agreement and second
amendment, several features are apparent. First, the terms “ ‘project’ ” and
“ ‘project approvals,’ ” defined in section 1.1 of the agreement and referenced
without alteration in the second amendment, are unambiguous. The
“ ‘project,’ ” defined as a “mixed use office and market rate apartment
community, together with related amenities, to be developed on the property”
plainly refers to the development of a “mixed” office and residential
apartment community. Intel does not seriously contend otherwise, and,
moreover, the agreement in section 3.7 expressly confirmed that to be the
parties’ understanding, stating that the seller (Intel) “acknowledges that . . .
the project that buyer intends to construct on the property requires both office
and residential use of the property.” (Italics added.)

21
 “ ‘Project approvals’ ” refers to all applications and approvals required
by the City and government agencies to carry out development, construction,
and operation of “the project on the real property” (using the capitalized,
defined term for “ ‘project’ ”). Thus, the defined term “ ‘project approvals’ ”
refers unambiguously to the proposed mixed-use office and residential
development “ ‘project.’ ”
Nevertheless, a contract and all its parts must be read together, giving
effect—where possible—to each part, and treating individual clauses as
subordinate to the overall general intent. (Civ. Code, §§ 1641, 1650.) In
ascertaining general intent, we refer not only to the language of the
agreement but “ ‘to the circumstances under which it was made and the
matter to which it relates. (Civ. Code, § 1647.)’ ” (Mountain Air, supra, 3
Cal.5th at p. 752; Waller, supra, 11 Cal.4th at p. 18.)
Intel contends the controlling provisions for purposes of its breach of
contract claim are set forth in section 3.3 of the second amendment governing
“post[-]closing payment.” Intel argues that the amendment conditioned the
post-closing payment on the newly introduced “ ‘project approval date’ ”
provision, which tied the payment obligation to the approvals “ ‘requested by
buyer,’ ” i.e., by Freedom Circle Venture.
Intel emphasizes that the parties did not merely condition the post-
closing payment on Freedom Circle Venture’s receipt of the predefined
“ ‘project approvals’ ” for the “ ‘project,’ ” but instead added a new provision
“for purposes of the [second] amendment” that tethered the payment
obligation to when Freedom Circle Venture “ ‘receives the project approvals
requested by buyer from the City.’ ” (Italics added.) Intel argues that the
phrase “ ‘requested by buyer’ ” modified the previously defined “ ‘project
approvals’ ” to create a new obligation tied to the “ ‘project approval date.’ ”

22
 Intel maintains that the newly added “ ‘project approval date’ ”
reflected an intentional choice by the parties in negotiating the second
amendment to incentivize closing the sale of the property by enabling Intel
and Freedom Circle Venture to share in the risk and upside of Greystar’s goal
of rezoning the property to enable residential development. Intel argues that
defendants’ interpretation of the second amendment limiting Freedom Circle
Venture’s obligation to make a post-closing payment to its receipt of the
predefined “project approvals” for the “project” is unreasonable because it
would mean the parties intended Intel to share in the upside benefit of
Freedom Circle Venture receiving rezoning approvals only if those approvals
retained some amount of the property’s less valuable office zoning and not if
Freedom Circle Venture modified or changed the approvals to a higher value
residential development without office use.4
Intel further contends that such an inflexible interpretation is
inconsistent with section 3.7 of the original agreement, which granted the
“buyer” (then Greystar GP II, later replaced by Freedom Circle Venture)
discretion and authority to “ ‘terminate’ ” or “ ‘modify’ ” the existing
restrictions on the property “ ‘in a manner acceptable’ ” to buyer while
requiring Intel, as the seller, “ ‘to reasonably cooperate’ ” with the buyer in
connection with those efforts. Intel argues that the second amendment
maintained and carried forward this deliberate provision authorizing

4 Intel does not address the relevance to the demurrer analysis of the

ground-floor retail component of the approved project. Freedom Circle
Venture references the retail component only to emphasize that the City’s
approval of three residential apartment buildings with ground floor retail
space does not meet the “unambiguous definition of the ‘[p]roject’ as a ‘mixed
use office and market rate apartment’ development.”
23
Freedom Circle Venture, as the buyer of the property, to adjust the approvals
to remove existing restrictions “ ‘in a manner acceptable to’ ” it.
Intel also asserts that the parties’ course of conduct in relation to the
second amendment confirms its interpretation of the agreement. Intel
alleged that between 2017 and 2022, it sought and received updates from
Greystar employees about Freedom Circle Venture’s progress in securing the
requested approvals. Yet, at no point (until Intel requested the post-closing
payment) did any Greystar or Freedom Circle Venture representative suggest
that the approvals they were pursuing (and about which Intel was inquiring)
were not the “project approvals” subject to the agreement, nor that the
residential development ultimately approved was not a “project” for purposes
of the post-closing payment.
Intel argues that defendants took the position that approval of a
residential development would fall outside the scope of the second
amendment only after the dispute arose over the $20 million post-closing
payment, such that the pre-dispute course of performance evidence is the best
evidence of the parties’ understanding of the agreement. (See Employers
Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 920 [“[T]he
terms set forth in an integrated writing ‘may be explained or supplemented
by course of dealing . . . or by course of performance.’ (Code Civ. Proc.,
§ 1856, subd. (c).)”].)
We agree with Intel. Considering the language of the agreement and
second amendment as a whole and the context and purpose of the agreement
and amendments, including the alleged extrinsic evidence on course of
conduct, Intel’s proposed construction is at least “ ‘reasonably susceptible’ to
the meaning ascribed to it in the complaint” (Klein, supra, 202 Cal.App.4th at
p. 1384). Moreover, Intel’s construction does not “place a ‘clearly erroneous

24
construction upon the provisions’ of the attached agreement.” (Chisom,
supra, 218 Cal.App.4th at pp. 415–416.)
To begin, the definitions of “project” and “project approvals”—though
themselves narrowly drawn and unambiguous—cannot be read to contravene
the purpose of the agreement as a whole. (Civ. Code, §§ 1641, 1650.) The
agreement in section 3.3(a) set forth the parties’ intent to authorize the buyer
(then Greystar GP II) to “pursue and acquire” the defined “project approvals
for the project.” The agreement broadly defined “ ‘project approvals’ ”
(boldface omitted) to include all zoning changes, entitlements approvals,
agreements, and instruments “necessary or appropriate to obtain” from the
City and other governmental entities for the project. In section 3.7, the
agreement acknowledged that the buyer’s intent for the property “require[d]
both office and residential use” and conferred discretion on the buyer to
pursue removing or modifying the “existing restrictions” on the property in a
manner acceptable to it.5
By adding the “ ‘project approval date’ ” (boldface omitted) provision as
the agreed-upon event that would require Freedom Circle Venture to pay
Intel the post-closing payment, the second amendment supports a
determination that the contract may be reasonably susceptible to more than
one interpretation. That provision (referring to the “date that the buyer
receives the project approvals requested by buyer from the City and other
applicable [g]overnmental [a]gencies for the project”) must be construed, if

5 Section 3.7 specifically defines “existing restrictions” in terms of

certain restrictive covenants. Given that limitation, we have doubts about
the parties’ characterization of section 3.7 as conferring discretion and
flexibility upon the buyer with respect to zoning changes. We need not (and
do not) definitively construe section 3.7 because our conclusion that the trial
court erred in sustaining respondents’ demurrers does not depend on the
scope of the discretion that the provision affords to buyer.
25
possible, according to its “ ‘ “clear and explicit” meaning . . ., interpreted in
[its] “ordinary and popular sense.” ’ ” (Hewlett-Packard, supra, 65
Cal.App.5th at p. 531; see Civ. Code, §§ 1638, 1639.)
Applying this standard, we decide the post-closing payment’s “project
approval date” provision is susceptible to more than one meaning. (See
Hewlett-Packard, supra, 65 Cal.App.5th at p. 531.) The ordinary meaning of
“ ‘project approval date’ ” (boldface omitted) would be reasonably understood
by a layperson to refer, as Intel maintains, to the “project approvals
requested by [the] buyer . . . for the project,” meaning those approvals that
were in fact requested by Freedom Circle Venture. However, applying the
agreement’s defined terms “project” and “project approvals” narrows that
understanding, rendering the meaning of the provision unclear.
On one hand, the strict definitions set forth in section 1.1 of the
agreement appear to restrict the second amendment’s post-closing payment
provision only to the previously defined project approvals requested by the
buyer for the defined project. Freedom Circle Venture asserts this
interpretation is the only reasonable one, where the parties had two
opportunities negotiating the first and second amendments to redefine
“project approvals” and “project” but did not do so. To the contrary, the first
and second amendments provided that initially capitalized terms not defined
in the second amendment (including “project approvals” and “project”)
retained “ ‘the same meaning as set forth in the’ ” agreement.
Freedom Circle Venture further asserts that use of the definite article
“the” immediately preceding “ ‘project approvals requested by buyer . . . for
the project’ ” precludes reading the provision as if it applied to “any” project
approvals being sought. It maintains that the phrasing “ ‘the project
approvals requested by buyer’ ” (italics added) specifically tethered the post-

26
closing payment to the original project approvals sought by Greystar, which
Intel acknowledged in section 3.7 of the agreement: “ ‘Seller acknowledges
that buyer has disclosed to seller that the project that buyer intends to
construct on the property requires both office and residential use.’ ”
On the other hand, this strict interpretation arguably renders
surplusage a key part of the “project approval date” provision that, as set
forth in section 3(c) of the second amendment, controlled whether the post-
closing payment would be activated. The parties’ inclusion of the phrase
“requested by buyer” in the new provision, added “[f]or purposes of” the
second amendment, could be understood to imply something more than a
trigger date for obtaining the predefined “project approvals” “for the project.”
It specifies with particularity the “project approvals” “requested by buyer” for
the “project,” lending credible support for Intel’s proposed interpretation.
Furthermore, this latter interpretation more closely corresponds to the
purpose of the second amendment, given the circumstances in which it was
made. (Mountain Air, supra, 3 Cal.5th at p. 752.) Although the complaint
does not allege extrinsic evidence that would alter or clarify the language of
the agreement, Intel has alleged the circumstances giving rise to the
agreement and second amendment, including the parties’ purpose in agreeing
to the post-closing payment structure and their post-second amendment
course of conduct. Specifically, Intel alleged that after prior failed attempts
to close the sale of the property due to ongoing uncertainty over whether the
City would approve the residential development Greystar sought for the
mixed-use development, Intel and Freedom Circle Venture restructured the
deal. The second amendment lowered the sale price for the property under
its current zoning restrictions and promised Intel the opportunity to share in

27
the increased value of the property if Freedom Circle Venture succeeded in
obtaining the requested rezoning approvals within eight years.
When Intel inquired about the status of the approvals pursuant to
section 3.3(a) of the second amendment, representatives of Greystar provided
optimistic updates and did not indicate that the agreement was inapplicable
to the project for which Greystone was seeking City approval. We accept the
truth of these properly pleaded facts (Yvanova, supra, 62 Cal.4th at p. 924)
insofar as they may be admitted “to explain what the parties meant by the
language they used.” (Aragon-Haas, supra, 231 Cal.App.3d at p. 240;
Hewlett-Packard, supra, 65 Cal.App.5th at p. 531.)
Under these circumstances, the second amendment may be construed
in at least two ways. In Freedom Circle Venture’s view, the post-closing
payment is owed only upon Freedom Circle Venture’s receipt of the defined
project approvals for the project (comprising mixed-use residential and office).
According to Intel, the agreement requires payment upon Freedom Circle
Venture’s receipt of the project approvals requested by it for the project,
including for a 100 percent residential project. Because the contractual
language is susceptible to more than one reasonable interpretation, the
contractual dispute may not be resolved at the pleading stage.
The cases Freedom Circle Venture rely upon in support of the trial
court’s order are factually inapposite. Each of those decisions involved
contractual terms that were not susceptible to the meaning alleged by the
plaintiff and/or conclusively negated the meaning ascribed to them. (See,
e.g., Marzec v. California Public Employees Retirement System (2015) 236
Cal.App.4th 889, 912 [deciding plaintiffs’ claim to increased disability
retirement benefits based on added years of “ ‘service credit’ ” under public
employee benefits agreement conflicted with the express contractual

28
language, which qualified projected service credit increases as “ ‘an estimate’ ”
(capitalization & boldface omitted) that “ ‘may not benefit’ ” employees who
take disability retirement]; George, supra, 201 Cal.App.4th at p. 1128
[rejecting plaintiffs’ interpretation and alleged extrinsic evidence concerning
“actual cash value” provision of auto insurance policy, where the policy
language unambiguously stated it would pay “the actual cash value of the car
up to $25,000, less the deductible”, not a predetermined “actual cash value” of
$25,000]; Klein, supra, 202 Cal.App.4th at p. 1384 [concluding plaintiff’s
interpretation of Chevron’s use of the term “gallon” in advertised fuel prices
as units delivered at a specified temperature was inconsistent with ordinary
understanding of the term “ ‘gallon’ ”].)
Aragon-Haas offers a more useful analogy. There, the plaintiff alleged
that her former employer breached their employment contract by terminating
her position without cause. (Aragon-Haas, supra, 231 Cal.App.3d at p. 236.)
The integrated agreement gave the defendant the right to terminate
employment during the first year without cause and stated that “ ‘[t]hereafter
this Agreement shall be automatically extended’ for six consecutive one-year
terms.” (Id. at p. 239, italics omitted.) The appellate court reversed the
judgment of dismissal after concluding the provision was reasonably
susceptible to the meaning alleged by the plaintiff, since the use of
“ ‘thereafter’ ma[de] it unclear whether the right to terminate existed only
during the first year of plaintiff’s employment or . . . continued throughout
the term of employment specified in the contract.” (Ibid.)
We recognize, as did the court in Aragon-Haas, that Intel’s proposed
interpretation of the second amendment may ultimately prove invalid. But
“ ‘[s]o long as the pleading does not place a clearly erroneous construction
upon the provisions of the contract, in passing upon the sufficiency of the

29
complaint, we must accept as correct plaintiff’s allegations as to the meaning
of the agreement.’ ” (Aragon-Haas, supra, 231 Cal.App.3d at p. 239.)
We decide that, given its context and purpose, the second amendment’s
post-closing payment provision, read together with the terms of the
agreement and considering the alleged course of conduct evidence, is at least
reasonably susceptible to the meaning alleged in the complaint. (Aragon-
Haas, supra, 231 Cal.App.3d at p. 239.) Accordingly, the trial court erred in
sustaining the demurrers to Intel’s breach of contract cause of action.
We turn to Greystar’s independent arguments as to the liability of the
noncontracting entities.
C. Liability of the Noncontracting Defendants
Intel contends that Greystar is liable for Freedom Circle Venture’s
breach of contract as the “ultimate parent” of Freedom Circle Venture “and
the lead actor in Intel’s complaint,” as well as for Greystar’s own tortious
interference with contractual relations. Greystar counters that the
noncontracting entities are not liable for Freedom Circle Venture’s alleged
acts under either an agency or alter ego theory of liability. Greystar relies on
the general principles that (1) a contract cannot bind a nonparty, and (2) a
parent corporation is not liable for the acts of its subsidiary. It maintains
that Intel has not alleged facts sufficient to overcome these baseline
principles and state a claim for liability. Greystar also disputes that Intel
has adequately stated a cause of action for intentional interference with
contractual relations.
1. Additional Background
Intel alleged that although Freedom Circle Venture signed the second
amendment and purchased the property in June 2017, it did so as an agent or
alter ego of Greystar.

30
 The complaint alleged specifically that “[t]here [was] a unity of interest
and ownership between the different entities,” including that the “individuals
negotiating the agreement and subsequent amendments . . . failed to observe
corporate formalities by interchangeably representing” the four entities
(Freedom Circle Venture, GS Freedom Circle, Greystar Investment Group,
and Greystar). It alleged that defendants shared employees, maintained the
same South Carolina address, and used the same representatives (including
Warner and Fearn, whose e-mail signature line referred to “Greystar”) to
negotiate the agreement and amendments and respond to Intel’s inquiries
about the project approvals.
The complaint further alleged, on information and belief, that the
entities failed to observe corporate formalities in their engagement with the
City and submitted requests to the City on behalf of Greystar even though
the agreement and amendments identified Greystar GP II and, later,
Freedom Circle Venture as the entities responsible for the rezoning
applications. It alleged that Freedom Circle Venture was a mere
instrumentality for Greystar and its employees who controlled every aspect of
the negotiations with Intel, signed the operative agreement and
amendments, handled the performance of the obligations under the
agreement and amendments, and “caused and effectuated Freedom Circle
Venture’s breach.” It also alleged that if the acts and liabilities of Freedom
Circle Venture are treated as those of Freedom Circle Venture alone, there
will be an inequitable result because Greystar participated in and benefited
from the rezoning and subsequent sale of the property.
In its order sustaining defendants’ demurrers, the trial court did not
reach the merits of Intel’s agency or alter ego theory due to its finding that
Intel had failed to state a claim for the substantive breach of contract.

31
 2. Analysis
In general, “a parent company is not liable on a contract signed by its
subsidiary ‘simply because it is a wholly owned subsidiary.’ ” (Cohen v. TNP
2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 861
(Cohen).) So, too, a parent corporation is not liable for the acts of its
subsidiaries; some other basis of liability must be established. (United States
v. Bestfoods (1998) 524 U.S. 51, 61; Northern Natural Gas Co. v. Superior
Court (1976) 64 Cal.App.3d 983, 991.)
Recognizing that Greystar may not be directly liable for Freedom Circle
Venture’s alleged breach under the second amendment, Intel advances two
theories of indirect liability: agency and alter ego.
Under agency theory, “[t]he acts of an agent within the scope of his
authority bind the principal.” (Madden v. Kaiser Foundation Hospitals
(1976) 17 Cal.3d 699, 705–706.) Although a parent company is not typically
bound by its subsidiary’s contracts, “[t]he agency doctrine may bind a parent
to the contracts of its subsidiary where, in addition to owning the subsidiary,
the parent company exercises ‘sufficient control over the [subsidiary’s]
activities’ such that the subsidiary becomes a ‘mere agen[t] or
“instrumentality” of the parent.’ ” (Cohen, supra, 31 Cal.App.5th at p. 862.)
In contrast with agency liability, alter ego allows the trial court to
disregard the separate corporate status (“pierce[]” the corporate veil) “where
an abuse of the corporate privilege justifies holding the equitable ownership
of a corporation liable for the actions of the corporation.” (Sonora Diamond
Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538 (Sonora
Diamond).) Whether the doctrine applies is not based on a strict test and
“will depend on the circumstances of each particular case.” (Mesler v. Bragg
Management Co. (1985) 39 Cal.3d 290, 300.)

32
 Greystar contends that Intel failed to allege facts sufficient to satisfy
either form of liability.
Greystar’s arguments misconstrue the pleading standard applicable to
Intel’s theories of vicarious liability. “Ordinarily, a pleading ‘is sufficient if it
alleges ultimate rather than evidentiary facts’ constituting the cause of
action.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1019, quoting Doe v.
City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) “An allegation of
agency is an allegation of ultimate fact that must be accepted as true for
purposes of ruling on a demurrer.” (City of Industry v. City of Fillmore (2011)
198 Cal.App.4th 191, 212; see Skopp v. Weaver (1976) 16 Cal.3d 432, 437.)
The same is true for an allegation of alter ego liability. (Rutherford Holdings,
LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236 (Rutherford).)
An allegation of ultimate fact requires the plaintiff only to “ ‘ “ ‘set forth
the essential facts . . . with reasonable precision and with particularity
sufficient to acquaint a defendant with the nature, source and extent of his
cause of action.’ ” ’ ” (Doe, supra, 42 Cal.4th 531 at p. 550.) Moreover, trial
courts demand less particularity in pleading where the defendant’s
knowledge of the facts “ ‘may be assumed to [be] . . . at least equal, if not
superior, to that possessed by the plaintiff.’ ” (Rutherford, supra, 223
Cal.App.4th at p. 236.)
In pointing to the complaint’s failure to allege certain facts to support
the theories of agency and alter ego, Greystar seeks to impose an evidentiary
standard of pleading. This is not the applicable standard. (Blickman
Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858,
886 [In “determining the sufficiency of a pleading,. . . the existence of an
agency relationship is the ‘essential fact[],’ and where alleged must be
accepted as true.”]; Doe, supra, 42 Cal.4th at p. 550.)

33
 Intel’s complaint alleged that Freedom Circle Venture signed the
second amendment and purchased the property as “a mere instrumentality of
Greystar, which entirely dominated its affairs” in relation to the property
transaction. It alleged more specifically that Greystar controlled Freedom
Circle Venture’s operations in relation to the property purchase, including
because Greystar employees negotiated the agreement and amendments,
signed the second amendment on behalf of Freedom Circle Venture,
responded to Intel’s requests for updates about the rezoning approvals, and
conducted and effectuated Freedom Circle Venture’s alleged breach. These
facts are sufficient to support an alleged agency relationship, wherein “the
subsidiary can legitimately be described as only a means through which the
parent acts.” (Sonora Diamond, supra, 83 Cal.App.4th at p. 541.)
We similarly conclude that for purposes of review on demurrer, Intel
has adequately alleged facts to support its alter ego allegations against
Greystar. Intel alleged a “unity of interest and ownership” between Freedom
Circle Venture and Greystar based on their common ownership, address, and
employees, who “interchangeably” represented Freedom Circle Venture as
well as the noncontracting entities and “failed to observe corporate
formalities” in negotiating and performing the agreements. Intel also alleged
that maintaining corporate separateness and treating Freedom Circle
Venture as singularly liable will produce an inequitable result because
Greystar equally participated in and benefited from the rezoning and
subsequent alleged sale of the property.
Greystar argues that Intel did not allege that Freedom Circle Venture
is undercapitalized, or that there is comingling of funds and the
noncontracting entities treat Freedom Circle Venture’s funds as their own.
Those are facts that may reasonably be assumed to be within defendants’

34
possession and obtainable in discovery and therefore need not be alleged in
the complaint to state a legally sufficient allegation of vicarious
liability. (Rutherford, supra, 223 Cal.App.4th at p. 236.)
The federal cases Greystar relies on to support its position are
inapposite because they were not decided under California’s liberal pleading
standard on demurrer. (See, e.g., Wady v. Provident Life and Accident Ins.
Co. of America (C.D. Cal. 2002) 216 F.Supp.2d 1060, 1067 [rejecting plaintiff’s
reliance on alter ego theory to avoid summary judgment where plaintiff’s
complaint contained no alter ego allegations]; Hall-Magner Group v. Firsten
(S.D. Cal. 2011) WL 5036027, at *1, 4 [concluding plaintiff failed to present
evidence of alter ego relationship on motion to dismiss for lack of personal
jurisdiction]; Katzir’s Floor and Home Design, Inc. v. M-MLS.com (9th Cir.
2004) 394 F.3d 1143, 1149 [reversing district court’s order adding judgment
debtors to default judgment on an alter ego theory where evidence did not
support alter ego finding]; Calvert v. Huckins (E.D. Cal. 1995) 875 F.Supp.
674, 678–680 [granting dismissal for lack of personal jurisdiction where
plaintiff failed to produce evidence for a prima facie case that California
licensed business was a mere instrumentality of its parent corporations].)
In sum, California law permits a plaintiff asserting agency or alter ego
theories to allege in the complaint ultimate rather than evidentiary facts
(Doe, supra, 42 Cal.4th at p. 550) and to pursue, through discovery, those
additional facts considered uniquely within the defendants’ superior
knowledge (Rutherford, supra, 223 Cal.App.4th at p. 236). Applying these
pleading standards to the complaint, we conclude that Intel’s alleged theories
of agency and alter ego liability against the noncontracting entities are
sufficient to survive Greystar’s demurrer.

35
 D. Breach of the Implied Covenant of Good Faith and Fair Dealing
(Second Cause of Action)
Having determined that Intel adequately pleaded a claim for breach of
contract with respect to both Greystar and Freedom Circle Venture, we turn
to Intel’s alternatively pleaded cause of action for breach of the implied
covenant of good faith and fair dealing.6
1. Additional Background
Intel alleged that if the approvals obtained by Freedom Circle Venture
fall outside the scope of the post-closing payment provision, then defendants
have breached their duty of good faith and fair dealing by failing to pursue
the project approvals that would have triggered their obligation to pay Intel
the $20 million post-closing payment.
In their demurrers, Freedom Circle Venture and Greystar each
contended that the complaint fails to state a breach of the implied covenant
cause of action because Intel’s claim seeks to impose substantive duties on
the defendants that are not found in the agreement and amendments.
Freedom Circle Venture also argued that the cause of action merely
duplicated the breach of contract cause of action because it is based on the
same allegations underlying the alleged breach.
The trial court agreed that the claim for breach of the implied covenant
of good faith and fair dealing depended on obligations not stated and/or

6 Intel asserts in its appellate briefing that its claim in the alternative

for breach of the implied covenant of good faith and fair dealing “needs to be
addressed only if the trier of fact adopts [d]efendants’ interpretation of the
[s]econd [a]mendment.” We understand this statement to be in reference to
the factfinding or trial stage of litigation. Because a demurrer tests only the
legal sufficiency of factual allegations in a complaint on appeal from the
sustaining of a demurrer, we consider whether the allegations concerning the
alternatively pleaded second cause of action state a cause of action.
36
imposed in the agreement and amendments and sustained the demurrers as
to the second cause of action.
2. Legal Principles
The “modern rules of pleading generally permit plaintiffs to ‘set forth
alternative theories in varied and inconsistent counts’ ” (Klein, supra, 202
Cal.App.4th at p. 1388), including “inconsistent claims predicated on both the
existence and absence of” an enforceable agreement (ibid.).7
“ ‘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,
italics omitted.) The implied covenant ‘finds particular application in
situations where one party is invested with a discretionary power affecting
the rights of another. Such power must be exercised in good faith.’ (Carma
[Developers, Inc. v. Marathon Development California, Inc. (1992)] 2 Cal.4th
[342,] 371–372.) The implied covenant cannot, however, ‘impose substantive
duties or limits on the contracting parties beyond those incorporated in the
specific terms of their agreement.’ (Guz, at pp. 349–350.) In other words, ‘the
scope of conduct prohibited by the covenant of good faith is circumscribed by

7 In this case, the alternative claim is not based on the absence of an

enforceable agreement, but on the possibility that the fact finder might
construe the second amendment narrowly, concluding that defendants did
not breach any obligation under section 3(c) because the approvals ultimately
obtained by Freedom Circle Venture were not the predefined “ ‘[p]roject
[a]pprovals.’ ” In that circumstance, Intel would proceed on its alternative
claim that defendants frustrated its right to obtain the benefits of the second
amendment, as expressed by the post-closing provision stating that Freedom
Circle Venture intended to process the agreed-upon “[p]roject approvals” after
closing on the sale of the property.
37
the purposes and express terms of the contract.’ (Carma, at p. 373.)”
(Hewlett-Packard, supra, 65 Cal.App.5th at p. 554.)
3. Analysis
Intel contends that, if it does not prevail in its construction of the
agreement on its breach of contract claim, then it is entitled to relief on its
alternative claim for breach of the implied covenant of good faith and fair
dealing. It argues that its breach of contract claim is based on defendants’
refusal to pay the $20 million upon receiving City approval of the “ ‘project
approvals requested by buyer’ ” under section 3(c) of the second amendment,
while its breach of the implied covenant of good faith and fair dealing claim is
based on defendants’ frustration of the parties’ stated expectations under
section 3(a) of the second amendment for Freedom Circle Venture to
“ ‘process the project approvals following the [c]losing [d]ate.’ ”
We agree with Intel that the breach of implied covenant claim is not
redundant of Intel’s breach of contract claim but instead addresses
defendants’ implied good faith “ ‘to do everything that the contract
presupposes that [defendants] will do to accomplish its purpose.’ ” (Pasadena
Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1093 (Pasadena Live).)
As detailed ante, section 3 of the second amendment added a “post[-]closing
payment” provision to the agreement terms. Section 3(a) states, “seller
acknowledges that buyer intends to process the project approvals following
the closing date. When requested by seller, buyer shall provide to seller an
update concerning such buyer’s progress in the project approvals.”
The parties dispute whether section 3(a) of the second amendment
imposed an affirmative duty on Freedom Circle Venture to pursue the
specially defined “project approvals.” Defendants assert that section 3(a)’s
recital of intent, without more, does not create a binding obligation to

38
perform, particularly given that section 3.7 assigned discretion to the buyer
to modify or terminate existing restrictions. Freedom Circle Venture argues,
“[t]hat discretion defeats Intel’s claim that [Freedom Circle Venture]
promised to seek only zoning for the project, which would trigger the
post[-]closing payment.” Greystar similarly maintains that “Freedom Circle
Venture’s expressions of ‘inten[t]’ to obtain the ‘project approvals’ cannot be
read as a promise to obtain those approvals because the agreement expressly
provides otherwise” by assigning discretion to the buyer, and that Intel does
not identify any terms of the agreement that “actually impose any obligation
on Freedom Circle Venture to seek particular approvals.”
As with the above-mentioned causes of action, we deem the complaint
allegations to be true for the purpose of determining whether Intel has
pleaded a breach of the covenant of good faith and fair dealing. (Pasadena
Live, supra, 114 Cal.App.4th at p. 1092.) Considering the language of the
agreement and amendments, as well as Intel’s factual allegations concerning
the circumstances and purpose of the second amendment, we reject
defendants’ view that Intel seeks to impose on Freedom Circle Venture duties
beyond those incorporated in the specific terms of the agreement. (See Guz v.
Bechtel National, Inc., supra, 24 Cal.4th at pp. 349–350.)
We construe the implied covenant claim as alleging that Intel and
Freedom Circle Venture entered into the second amendment with the
understanding that Freedom Circle Venture intended to carry forward its
efforts to seek the defined project approvals. Section 3(a) of the second
amendment manifested that understanding as part of the newly added post-
closing payment provision, expressly acknowledging “that buyer intends to
process the project approvals following the [c]losing [d]ate.” We recognize
that the expression of intent set forth in section 3(a) may not, in and of itself,

39
create a binding promise to obtain the defined project approvals. But it is
undoubtedly sufficient to support Intel’s alleged expectation that Freedom
Circle Venture would pursue those approvals after the closing date in good
faith and not unfairly frustrate Intel’s right to receive the benefit of section
3(c) by seeking approval for a project that defendants would later
characterize as outside the scope of the parties’ agreement.
Pasadena Live illustrates this distinction. In that case, Pasadena Live,
an event producer, entered a contract with the City of Pasadena (Pasadena)
regarding amphitheater renovations and event permitting. (Pasadena Live,
supra, 114 Cal.App.4th at p. 1091.) Under the agreement, Pasadena Live
paid Pasadena $114,550 and agreed to renovate the amphitheater at its
expense, and, in exchange, Pasadena agreed to evaluate and process
Pasadena Live’s application for events on the same basis as applications
made by other producers. (Id. at p. 1092.) The agreement acknowledged that
Pasadena Live had proposed a series of up to 11 events in the amphitheater
for the relevant years. (Ibid.) However, the complaint alleged that Pasadena
had authorized only five events and prevented Pasadena Live from producing
the other six events by issuing a letter notifying Pasadena Live that it would
not authorize any events produced by it in the next year. (Ibid.)
Pasadena Live sued, alleging in a second amended complaint that
Pasadena breached the implied covenant of good faith and fair dealing by
preventing Pasadena Live from producing the additional events. (Pasadena
Live, supra, 114 Cal.App.4th at p. 1092.) On appeal, the appellate court
reversed the trial court’s order sustaining Pasadena’s demurrer without leave
to amend. The court explained that the agreement “under which Pasadena
Live advanced $114,550 for improvements to [Pasadena] property, the
amphitheater, envisioned future production by Pasadena Live, albeit there

40
was no guaranty that any single or specific production proposed by Pasadena
Live would be approved by [Pasadena].” (Id. at p. 1093.) The court reasoned
that under the implied covenant, Pasadena “was required ‘to do everything
that the contract presuppose[d]’ ” it would do “ ‘to accomplish its purpose’ ”
(ibid.), meaning it was required at least to consider Pasadena Live’s
proposals. Hence, Pasadena’s alleged conduct refusing any proposals from
Pasadena Live for the next year stated a claim for breach of the implied
covenant of good faith and fair dealing. (Ibid.) On the other hand, the court
rejected Pasadena Live’s assertion that the agreement gave it a contractual
option to produce all 11 events or obligated Pasadena to negotiate and
conclude a production contract with Pasadena Live. (Id. at p. 1094.)
Similarly here, the second amendment envisioned that Freedom Circle
Venture would process the predefined project approvals, though there was no
guarantee the City would ultimately approve the rezoning requested. Thus,
under the facts alleged, Freedom Circle Venture was required, in good faith,
to process the stated approvals and provide updates to Intel regarding their
status. Because Intel has alleged that defendants instead “fail[ed] to pursue
the project approvals that would have triggered Freedom Circle Venture’s
obligation to pay Intel the $20 million [p]ost[-][c]losing [p]ayment provided
for in Section 3(b) of the [s]econd [a]mendment,” Intel has stated a cause of
action for breach of the implied covenant of good faith and fair dealing.
Defendants’ arguments to the contrary are unpersuasive. Freedom
Circle Venture contends the second amendment tied its “contractual
obligation to pay a ‘post[-]closing payment’ solely to the occurrence of a
defined ‘project approval date.’ ” Freedom Circle Venture claims that the
“operative trigger in [s]ection 3(c) is receipt, not processing, of the project
approvals” and argues that its stated “intent to process the project approvals

41
is not a warranty to only pursue those approvals and forego others, nor did it
create a condition for the property’s sale.”
This interpretation of the second amendment may be accurate for
purposes of evaluating a breach of contract claim, but it overlooks and fails to
assign any significance to the prefatory statement of intent in section 3(a).
Because section 3(a) unambiguously expresses the parties’ understanding of
Freedom Circle Venture’s intent to proceed in a manner that would allow
fulfillment of the post-closing payment provision, it may serve as the
foundation for an implied covenant of good faith and fair dealing claim. (See
Guz, supra, 24 Cal.4th at p. 349.)
Nor do defendants’ arguments based on the buyer’s discretion under
section 3.7 of the agreement preclude Intel, as a matter of law, from stating a
cause of action for breach of the implied covenant of good faith and fair
dealing. Freedom Circle Venture asserts that the discretionary clause
demonstrates “the parties’ mutual intent for [Freedom Circle Venture] to
retain sole discretion on whether, and how, to terminate or modify the zoning
restrictions on the property” and shows Intel “relinquished all power to affect
the property’s zoning and simply agreed to cooperate with [Freedom Circle
Venture]’s plans for the property.” However, as noted in our discussion ante
(fn. 5), it is far from clear that the discretion specified in section 3.7 extends
to zoning.
Moreover, this proposed interpretation fails to acknowledge that the
implied covenant of good faith and fair dealing imposes a duty to exercise
such discretionary power in good faith and by fair dealing. (Carma
Developers, Inc. v. Marathon Development California, Inc., supra, 2 Cal.4th
342, 372 (Carma).) As stated by the California Supreme Court in Carma, “In
the case of a discretionary power, . . . the covenant requires the party holding

42
such power to exercise it ‘for any purpose within the reasonable
contemplation of the parties at the time of formation—to capture
opportunities that were preserved upon entering the contract, interpreted
objectively.’ ” (Ibid.)
Although Freedom Circle Venture cites Carma in support of its
position, the decision is factually inapposite. There, the commercial lease at
issue not only permitted the lessor to terminate the lease upon the lessee’s
notice of intent to sublet or assign, but also to pursue a new lease directly
with the proposed transferee or another without sharing any profit with the
lessee. (Carma, supra, 2 Cal.4th at p. 374.) In light of the lease terms, our
high court concluded that the lessor’s “termination of the lease in order to
claim for itself appreciated rental value of the premises was expressly
permitted by the lease and was clearly within the parties’ reasonable
expectations” (id. at p. 376) and rejected any breach of the implied covenant
of good faith and fair dealing (ibid.).
By contrast, the parties’ reasonable expectations centered on Freedom
Circle Venture’s intent to process the project approvals as set forth in the
second amendment. Drawing guidance from Carma, while the covenant of
good faith may not “be read to prohibit a party from doing that which is
expressly permitted by an agreement” (Carma, supra, 2 Cal.4th at p. 374),
neither does it permit a party to exercise discretionary power in a manner
that undermines the expectations of the parties as contemplated at the time
of formation (id. at p. 372).
Under our analysis of the contractual terms ante (pt. II.B.3.), even
assuming the buyer’s discretionary power in section 3.7 of the agreement
extended to its pursuit of zoning approvals, that discretion must be construed
together with the other agreement provisions, including the second

43
amendment’s post-closing payment provisions. Read in context of the alleged
circumstances of the agreement and second amendment (Mountain Air,
supra, 3 Cal.5th at p. 752), Freedom Circle Venture’s discretion to modify or
terminate the existing restrictions therefore had to be exercised consistently
with the expectation of the parties as contemplated when entering the
agreement and second amendment. (Carma, supra, 2 Cal.4th at p. 372.)
We conclude, for purposes of review on demurrer, that Intel has
adequately stated facts sufficient to support an alternative claim for breach of
the implied covenant of good faith and fair dealing.
E. Intentional Interference with Contractual Relations (Fourth Cause of
Action)
Intel’s fourth cause of action against Greystar for intentional
interference with contractual relations pairs with its claim for breach of the
implied covenant of good faith and fair dealing. Intel pleaded intentional
inference against Greystar in the alternative to its breach of contract claim.
The trial court sustained the demurrer as to the fourth cause of action
after concluding that, because the contract between the parties did not
require Freedom Circle Venture to pursue the mixed-use office and
residential development, Greystar could not have caused a breach or
disruption of the contractual relationship if it caused Freedom Circle Venture
not to pursue the predefined “project approvals.”
“[C]onsistent with its underlying policy of protecting the expectations of
contracting parties against frustration by outsiders who have no legitimate
social or economic interest in the contractual relationship, the tort cause of
action for interference with contract does not lie against a party to the
contract.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7
Cal.4th 503, 514.) “ ‘The elements which a plaintiff must plead to state the

44
cause of action for intentional interference with contractual relations are (1) a
valid contract between plaintiff and a third party; (2) defendant’s knowledge
of this contract; (3) defendant’s intentional acts designed to induce a breach
or disruption of the contractual relationship; (4) actual breach or disruption
of the contractual relationship; and (5) resulting damage.’ ” (Quelimane,
supra, 19 Cal.4th at p. 55.)
Greystar’s demurrer challenged the sufficiency of the intentional
interference with contract claim on three grounds. Greystar reasserts only
the second and third reasons in its respondent’s brief on appeal.
Consistent with the trial court’s conclusion in sustaining the demurrer
to the fourth cause of action, Greystar argues it cannot be liable for
intentional interference with contract because it did not interfere with any
performance to which Intel was entitled. More specifically, Greystar asserts
that because Freedom Circle Venture was under no contractual agreement to
seek any particular approval for rezoning the property, Greystar could not
have interfered with Intel’s benefits under the agreement by causing
Freedom Circle Venture not to seek the stated project approvals.
Our conclusion that Intel adequately pleaded breach of the implied
covenant of good faith and fair dealing against Freedom Circle Venture leads
us to reject this contention. The facts alleged in the complaint, taken as true
in reviewing the demurrer order (Yvanova, supra, 62 Cal.4th at p. 924), plead
that Greystar’s actions induced Freedom Circle Venture to abandon the
intended project approvals in such a way as to frustrate the expectations of
the parties at the time of contracting and impede Intel’s receipt of any
potential benefit under the second amendment. This is sufficient to
satisfactorily plead Greystar intentionally acted “ ‘to induce a . . . disruption

45
of the contractual relationship’ ” (Quelimane, supra, 19 Cal.4th at p. 55), as
required to state a tortious interference claim.
Greystar also contends the complaint fails to state a cognizable claim
because Intel has not alleged that Greystar used wrongful means to cause
Freedom Circle Venture not to seek the defined project approvals. Intel
counters that the “wrongful means” argument pertains to an affirmative
defense of privilege, which falls on Greystar to assert and prove and does not
affect the pleading standard applicable to Intel’s claim on demurrer. We
agree.
In support of its position, Greystar relies on case authority holding that
“owners or officers of a business entity [may] be held liable for interfering
with that entity’s contracts, subject to the defense of certain privileges.”
(Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 353; see
Collins v. Vickter Manor, Inc. (1957) 47 Cal.2d 875, 883.) The existence of the
privilege is a fact specific issue that “depends on whether the defendant used
improper means and acted to protect the best interests of his own company.”
(Woods, at p. 351, fn. 7.) Where a claim for contractual interference is
asserted against the noncontracting owners, officers, or directors of the
company subject to the contract, the noncontracting defendants may attempt
to prove their conduct was privileged by showing “that they did not ‘use
improper means.’ ” (Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222
Cal.App.4th 945, 959.)
Under these circumstances, Greystar—not Intel—bears the burden to
establish the defense of privilege. (See Evid. Code, § 500.) We conclude Intel
need not have alleged facts that Greystar employed wrongful means, which
comprises none of the elements required for intentional interference with
contractual relations. (See Quelimane, supra, 19 Cal.4th at p. 55.) Intel has

46
therefore stated facts sufficient to plead a cause of action against Greystar for
intentional interference with contractual relations.
F. Declaratory Relief (Third Cause of Action)
The trial court sustained Freedom Circle Venture’s demurrer as to the
third cause of action for declaratory relief based on its determination that the
complaint failed to state a claim for breach of contract or breach of the
implied covenant of good faith and fair dealing. Intel does not challenge that
ruling on appeal. Freedom Circle Venture and Greystar separately assert
that Intel has abandoned or waived its claim for declaratory relief by failing
to raise the issue in its appellate briefing. (See Reyes v. Kosha (1998) 65
Cal.App.4th 451, 466, fn. 6 [“Issues not raised in an appellant’s brief are
deemed waived or abandoned.”].)
As our Supreme Court has explained, “ ‘ “waiver” means the intentional
relinquishment or abandonment of a known right.’ ” (Lynch v. California
Coastal Com. (2017) 3 Cal.5th 470, 475.) By contrast, “ ‘forfeiture results
from the failure to invoke a right . . .; the two are not the same.’ ” (Id. at
p. 476.) Here, Intel has failed to invoke its right to challenge the trial court’s
ruling on the declaratory relief cause of action or otherwise raise the issue on
appeal to preserve it for consideration on remand. Nevertheless, we decline
to deem forfeited the viability of the third cause of action.
Our determination that, considering the agreement, amendments, and
well pleaded factual allegations of the complaint, the second amendment “is
‘reasonably susceptible’ to the meaning ascribed to it in the complaint” (Klein,
supra, 202 Cal.App.4th at p. 1384), requires the trial court to overrule the
demurrer on the central issue in this case as to the alleged breach of contract.
In the third cause of action, Intel has alleged a present and actual
controversy between Intel and Freedom Circle Venture with respect to

47
Freedom Circle Venture’s obligation to pay Intel the post-closing payment
under the second amendment. As these allegations are wholly derivative of
Intel’s breach of contract cause of action, which we have deemed cognizable,
we shall direct the trial court to overrule the demurrer as to Intel’s claim for
declaratory relief.
III. DISPOSITION
The judgment as to Freedom Circle Venture, LLC is reversed. The trial
court is directed to vacate the order sustaining the demurrer as to Freedom
Circle Venture, LLC and to enter a new order overruling the demurrer as to
the first, second, and third causes of action.
The judgment as to GS Freedom Circle Holdings, LLC, Greystar
Investment Group, LLC, and Greystar Real Estate Partners, LLC is reversed.
The trial court is directed to vacate the order sustaining the demurrer as to
GS Freedom Circle Holdings, LLC, Greystar Investment Group, LLC, and
Greystar Real Estate Partners, LLC and to enter a new order overruling the
demurrer as to the first, second, and fourth causes of action.
Appellant is entitled to recover its reasonable costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(2).)

48
 ______________________________________
Danner, J.

WE CONCUR:

____________________________________
Greenwood, P. J.

____________________________________
Bromberg, J.

H053201
Intel Corporation v. Freedom Circle Venture, LLC, et al.