Filed 8/5/26 Carde v. Endeavor Group Holdings CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DAVID CARDE, B335338
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV07817)
v.
ENDEAVOR GROUP
HOLDINGS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Keosian, Judge. Affirmed.
Early Sullivan Wright Gizer & McRae, Devin A. McRae and
Jeremy Gray for Plaintiff and Appellant.
Latham and Watkins, Marvin S. Putnam and Jessica
Stebbins Bina for Defendant and Respondent.
_______________________
The trial court granted summary judgment to Endeavor
Group Holdings, Inc. (Endeavor) in this implied contract action
filed by David Carde. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2019, Carde’s attorney e-mailed a document
(Carde labels it the “Analysis”; Endeavor calls it the “Essay”)
Carde had written about Endeavor’s business to the chief
executive officer of Endeavor and to the president of one of
Endeavor’s subsidiaries, William Morris Endeavor
Entertainment (WME). No one at Endeavor had requested that
Carde create the document or send it to Endeavor personnel, and
neither recipient responded to the e-mail.
In March 2022, Carde sued Endeavor, alleging Endeavor
breached an implied contract between the parties by using the
document and a proprietary diagram within it without
compensating him.1 Endeavor moved for summary judgment on
multiple grounds, one of which was that Carde did not clearly
condition disclosure of the document on the expectation of
payment for its use. (Spinner v. American Broadcasting
Companies, Inc. (2013) 215 Cal.App.4th 172, 184 (Spinner) [first
element of implied contract in this context is that the party
“clearly conditioned the submission of their ideas on an obligation
to pay for any use of their ideas”].) In support of this argument,
Endeavor asserted in its separate statement of material facts
that neither of the e-mails accompanying the Analysis asked
Endeavor to pay for the information contained therein.
1 Carde also alleged a cause of action for unjust enrichment,
but Endeavor’s demurrer to this cause of action was sustained
without leave to amend and the ruling is not raised on appeal.
2
In opposition to the motion for summary judgment, Carde
argued, inter alia, that a triable issue of material fact existed as
to the “clearly conditioned” element. Carde contended Endeavor
had unsuccessfully demurred to the complaint on this basis and
he argued the trial court was “require[d to]. . . reach the same
conclusion it did at demurrer, the circumstances here give rise to
an implied contract that Endeavor would pay if it used the
Analysis (or at a minimum this question is in dispute precluding
summary judgment).” In his responsive separate statement,
Carde disputed Endeavor’s alleged material fact that the e-mails
sent by Carde’s counsel did not contain a request for payment,
arguing the fact was disputed because the “expectation of
payment was implicit in the transmittal of the Analysis, based on
the customs and practices of the entertainment industry and,
separately, the relationship between consultants and clients.” As
evidentiary support for this assertion, Carde cited to three
paragraphs of the declaration he filed in opposition to the
summary judgment motion.
Endeavor submitted extensive evidentiary objections to
portions of Carde’s declaration. The court sustained Endeavor’s
objections to the entirety of two of the three paragraphs on which
Carde relied to demonstrate a genuine dispute of material fact as
to the asserted implicit expectation of payment.2 Most relevant
here, the court sustained objections to Carde’s assertions in his
2 The third paragraph, although listed as evidentiary
support for Carde’s contention about implicit payment
expectation, described Carde’s reading for and preparation of his
analysis and did not include any content pertaining to payment
or to custom or practice about payment for submitted ideas in
any field.
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declaration that (1) “[i]n the entertainment industry, it is
axiomatic and a custom and practice that when ideas and
intellectual property are submitted through representation, those
materials may not be used by the recipient for free, but rather
compensation will be required for any use;” (2) he is “well aware
of how submissions work in the industry”; (3) “Following all of
Endeavor’s ‘rules’ for submission, it is undisputable that the
submission of my Analysis was clearly an offer to make a deal,
should Endeavor be interested in using my work”; and (4) “in
general, the submission of ideas with the expectation of payment
for use is entirely consistent with common practice in the
business world.”
After a hearing, the trial court granted summary judgment,
concluding there was no triable issue of material fact on the first
element of breach of an implied contract—whether Carde had
conditioned the submission of his analysis on an obligation to pay
for its use—and Endeavor was entitled to judgment as a matter
of law. The court explained neither Carde’s document nor the e-
mails sent by his attorney “contained anything indicating to their
recipients that the analysis was submitted in the expectation of
payment.”
The court observed that once the moving party met its
initial burden on summary judgment, the party opposing
summary judgment bears the burden of producing substantial
responsive evidence demonstrating a triable issue of material fact
exists, and it concluded Carde had not met his burden. Carde’s
complaint had alleged, “In the entertainment industry, it is
axiomatic and a custom and practice that when ideas and
intellectual property are submitted through representation, those
materials may not be used by the recipient for free, but rather
4
compensation will be required for any use.” Carde stated in his
complaint that he would “present expert testimony about this
custom and practice and that these circumstances give rise” to an
implied contract that Endeavor would compensate Carde for the
use of his ideas. However, the court noted that in opposition to
the motion for summary judgment, “the only evidence that
Plaintiff has presented of this custom and practice is the very
same allegation of his complaint, copied and pasted into his
declaration.” Carde had “offer[ed] no foundation in his own
knowledge, skill, experience, training, or education that would
qualify him to testify to the custom that he claim[ed],” which was
why the court sustained Endeavor’s evidentiary objections to this
portion of Carde’s declaration. As there were no triable issues of
material fact as to the existence of an implied contract based on
Carde’s submission of his Analysis to Endeavor, the court
granted summary judgment in Endeavor’s favor.
DISCUSSION
I. Summary Judgment
A. Applicable Law
“[T]he California Supreme Court held in Desny [v. Wilder
(1956) 46 Cal.2d 715,] 733–734 that an idea can be the subject of
an express or implied contract, and its disclosure and submission
can be consideration for a promise to pay compensation.
Plaintiffs may therefore have a cause of action in contract for
disclosing an idea to a defendant that uses that idea without
compensation. [¶] In an idea submission case such as this, to
prevail on a cause of action for breach of implied-in-fact contract,
plaintiffs must show (1) they clearly conditioned the submission
of their ideas on an obligation to pay for any use of their ideas;
5
(2) the defendants, knowing this condition before the plaintiffs
disclosed the ideas, voluntarily accepted the submission of the
ideas; and (3) the defendants found the ideas valuable and
actually used them—that is, the defendants based their work
substantially on the plaintiffs’ ideas, rather than on their own
ideas or ideas from other sources.” (Spinner, supra,
215 Cal.App.4th at p. 184.) As Desny explained, the law requires
specific evidence that payment is contemplated. (Desny, at
p. 738.) “The law will not imply a promise to pay for an idea from
the mere facts that the idea has been conveyed, is valuable, and
has been used for profit; this is true even though the conveyance
has been made with the hope or expectation that some obligation
will ensue.” (Id. at p. 739.)
To prevail on a motion for summary judgment, a defendant
must show that one or more elements of the plaintiff’s cause of
action cannot be established or that there is a complete defense to
the cause of action. (Code Civ. Proc.,3 § 437c, subd. (p)(2).)
A defendant moving for summary judgment bears the initial
burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the
defendant meets that initial burden, the burden shifts to the
plaintiff to show a triable issue of fact exists as to that cause of
action. (§ 437c, subd. (p)(2).) The plaintiff “ ‘may not rely upon
the mere allegations or denials of its pleadings . . . but, instead,
shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action.’ ” (Merrill v.
3 Undesignated statutory references are to the Code of Civil
Procedure.
6
Navegar, Inc. (2001) 26 Cal.4th 465, 476–477; § 437c,
subd. (p)(2).)
“ ‘An issue of fact can only be created by a conflict of
evidence. It is not created by “speculation, conjecture,
imagination or guess work.” [Citation.] Further, an issue of fact
is not raised by “cryptic, broadly phrased, and conclusory
assertions” [citation], or mere possibilities.’ ” (Spinner, supra,
215 Cal.App.4th at p. 183; see also Roberts v. Assurance Co. of
America (2008) 163 Cal.App.4th 1398, 1404 [plaintiff cannot “rely
on assertions that are ‘conclusory, argumentative[,] or based on
conjecture and speculation,’ but rather [is] required to ‘make an
independent showing by a proper declaration or by reference to
a . . . discovery product that there is sufficient proof of the
matters alleged to raise a triable question of fact’ ”].)
We review the trial court’s summary judgment decision de
novo. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) We liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party. (Ibid.) “Although we independently review the grant
of summary judgment to determine the existence of triable issues
of fact [citation], our inquiry is subject to two constraints. First,
we assess the propriety of summary judgment in light of the
contentions raised in [the appellant’s] opening brief. [Citation.]
Second, to determine whether there is a triable issue, we review
the evidence submitted in connection with summary judgment,
with the exception of evidence to which objections have been
appropriately sustained.” (Frittelli, Inc. v. 350 North Canon
Drive, LP (2011) 202 Cal.App.4th 35, 41.)
7
B. Material Issues of Fact Regarding Implied in
Fact Contract
Carde contends material issues of fact exist regarding an
implied in fact contract. First, he states the “trial court’s finding
that an ‘expert opinion’ is required to establish an implied
contract between Carde and Endeavor misstates the law and is a
red herring.” (Italics omitted.) Rather than providing a citation
to the specific location in the record where this alleged finding
may be found, Carde unhelpfully directs this court to the entire
summary judgment ruling. “ ‘Any statement in a brief
concerning matters in the appellate record—whether factual or
procedural and no matter where in the brief the reference
occurs—must be supported by a citation to the record.’ ” (Pagan v.
City of San Rafael (2026) 119 Cal.App.5th 853, 865.) Citations to
the record must include “the volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule
8.204(a)(1)(C).) Citing to an entire document is insufficient.
(In re Marriage of Barth (2012) 210 Cal.App.4th 363, 366, fn. 4.)
“The claimed existence of facts that are not supported by
citations to pages in the appellate record, or not appropriately
supported by citations, cannot be considered by this court.”
(Mueller v. County of Los Angeles (2009) 176 Cal.App.4th
809, 816, fn. 5.)
Moreover, in the course of our review we have not located
any finding or ruling by the trial court that expert testimony is
required in order to establish an implied contract between Carde
and Endeavor. As we understand the trial court’s ruling, the
court granted summary judgment in Endeavor’s favor because
the only evidence Carde had presented to support his claim of an
implicit expectation of payment when he submitted his analysis
8
was his own expert testimony about custom and practice. Once
that evidence was ruled inadmissible, Carde had not presented
any admissible evidence to support his contention that there
existed a disputed issue of material fact as to the existence of an
implicit request for payment in the transmission of his analysis
to the Endeavor and WME executives. Accordingly, Carde had
not demonstrated the existence of a triable issue of material fact
as to whether the submission was clearly conditioned on an
expectation of payment for its use. Nowhere in the court’s
analysis or ruling do we divine a general finding that expert
testimony is required to establish the existence of an implied
contract.
Carde next makes a multi-page argument that includes
many factual assertions and discusses the content of three
different exhibits, a declaration, and discovery responses,
culminating in the conclusion that “[t]he reasonable conclusion
from these facts is that the trial court was wrong when it ruled
that the submission was unsolicited.” None of Carde’s factual
assertions or document references is supported by a citation to
“the volume and page number of the record where the matter
appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “Statements
of fact that are not supported by references in the record are
disregarded by the reviewing court.” (McOwen v. Grossman
(2007) 153 Cal.App.4th 937, 947.)
Carde also argues that four cases upon which Endeavor
relied in its briefing in the trial court differ in significant ways
from the present matter. He summarizes each case and then
describes how the facts of the present matter diverge. Again,
none of the alleged facts to which Carde refers is supported by a
reference to the record on appeal. “[D]e novo review does not
9
obligate us to cull the record for the benefit of the appellant in
order to attempt to uncover the requisite triable issues. As with
an appeal from any judgment, it is the appellant’s responsibility
to affirmatively demonstrate error and, therefore, to point out the
triable issues the appellant claims are present by citation to the
record and any supporting authority. In other words, review is
limited to issues which have been adequately raised and briefed.”
(Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116,
disapproved on other grounds in Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 41–42.) Carde has not demonstrated the
existence of any triable issue of material fact regarding an
implied contract.
C. Absence of Expert Opinion
Carde argues if this court concludes “an expert opinion is
required, Carde is qualified in two respects. First, the foundation
established in the evidentiary ruling in the MTQ [motion to
quash] proceedings.” In support of this sentence fragment, Carde
directs this court to a 2022 ruling on his motion to quash a
subpoena in which the trial court ruled Carde had shown he had
an attorney-client relationship with the attorney who sent the
analysis to Endeavor and WME. Carde offers no argument how
this ruling established Carde’s foundation or qualification as an
expert witness. To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error. (In
re M.V. (2025) 109 Cal.App.5th 486, 518.) “It is not our
responsibility to develop an appellant’s argument.” (Alvarez v.
Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206,
fn. 11.)
10
Carde continues: “Second, Carde laid proper foundation in
his Declaration. He described his long career in the
entertainment industry.” He claims the trial court “weighed [his]
credibility despite facts establishing his work in the industry”
and faults the court for not explaining “how Carde was incapable
of testifying regarding well known” and long-recognized
entertainment industry customs. Finally, he states he set forth a
foundation for his expertise “as a consultant in general” and
testified to the custom and practice for consultants and work
based on a referral, an issue he claims the trial court did not
address.
We find no merit to these contentions. Carde’s references
to “foundation” seem to suggest a position that the trial court
made erroneous evidentiary rulings, but at no point in his
opening brief does Carde directly acknowledge the trial court’s
rulings on the evidentiary objections, much less present a distinct
and developed claim of error in any of these rulings. To the
extent this passage is an attempt to assert the trial court erred in
sustaining certain of Endeavor’s evidentiary objections, a general
claim that excluding evidence was “error,” without any “reasoned
analysis in their opening brief, regarding why, in this case, the
trial court was acting outside the bounds of reason,” is
insufficient to present an issue for review. (Mansur v. Ford
Motor Co. (2011) 197 Cal.App.4th 1365, 1387; see Hernandez v.
First Student, Inc. (2019) 37 Cal.App.5th 270, 279 [claim of
“flawed evidentiary rulings” is “forfeited by appellant[’s] failure
to provide record or legal citations or develop supporting legal
authority and by their failure to include this claim in the heading
of their brief”]; DeLuca v. State Fish Co., Inc. (2013)
217 Cal.App.4th 671, 681, fn. 13 [“DeLuca does not address any of
11
the specific grounds on which the objections were sustained,
including relevance, hearsay, and lack of foundation. Any
argument that the objections were improperly sustained is
therefore considered waived”].)
To the extent these statements are intended to assert other
error, they likewise fall short. Carde’s claim the trial court
“weighed [his] credibility despite facts establishing his work in
the industry” is not supported by record citations to either this
alleged credibility determination or facts establishing his
industry work. His assertion that the court did not explain how
he was “incapable of testifying” about entertainment industry
customs is belied by the court’s detailed explanation of its rulings
on Endeavor’s evidentiary objections, including why it
determined Carde had not established he had the special
knowledge, skill, experience, training, or education sufficient to
qualify him to testify as to entertainment industry custom and
practice. (Evid. Code, § 720, subd. (a).) Finally, Carde’s claim
that the court failed to address his expertise as a consultant and
his testimony to the custom and practice for compensating
consultants for submitted work from a referral is not supported
with citations to the record. “We are entitled to disregard such
unsupported factual assertions even on de novo review of a
summary judgment.” (Falcon v. Long Beach Genetics, Inc. (2014)
224 Cal.App.4th 1263, 1267.)
In conclusion, Carde states that if this court “still finds
[his] testimony unacceptable,” we should “reverse the trial court’s
failure to grant the plaintiff appropriate time to obtain such an
opinion under Civil Procedure Code section 437c[, subdivision]
(h).” This conclusory assertion, not supported by argument or
authority, is insufficient to demonstrate error. When an
12
appellant raises a point “but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.” (Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852.)
D. Substantial Similarity
Again without citations to the record, Carde argues triable
issues of material fact exist as to similarities between his
analysis and Endeavor’s materials in conjunction with
Endeavor’s 2021 initial public offering. As Carde has not
demonstrated error in the court’s grant of summary judgment
due to the absence of a triable issue of material fact on the first
element of an implied in fact contract, there is no need to
consider whether disputed issues of material fact exist with
respect to other elements.
II. Continuance of the Summary Judgment Hearing
Section 437c, subdivision (h) provides, “If it appears from
the affidavits submitted in opposition to a motion for summary
judgment . . . that facts essential to justify opposition may exist
but cannot, for reasons stated, be presented, the court shall deny
the motion, order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may
be just. The application to continue the motion to obtain
necessary discovery may also be made by ex parte motion at any
time on or before the date the opposition response to the motion
is due.”
Carde complains the trial court did not grant him a
continuance for further discovery. He describes this as a
“SECTION 437C(H) CONTINUANCE” (boldface and
underscoring omitted), sets forth the standard of review for a
13
“continuance under section 437c, subdivision (h),” and advises
that continuances are “virtually mandated,” citing cases where
continuances were requested in compliance with section 437c,
subdivision (h). What Carde does not do in this argument is
direct this court to where in the record he made a request for a
continuance that complied with section 437c, subdivision (h) but
was denied by the trial court. Instead, Carde states vaguely that
he submitted “not just a declaration in support of his position
that a continuance was warranted under section 437c(h) but also
his entire motion to compel which further elaborated upon the
need for additional evidence in support of his opposition to
Endeavor’s [Motion for Summary Judgment].”
Carde provides no record citation for this alleged
“declaration in support of his position that a continuance was
warranted under section 437c(h),”4 violating California Rules of
Court, rule 8.204(a)(1)(C). “ ‘The reviewing court is not required
to make an independent, unassisted study of the record in search
of error or grounds to support the judgment.’ [Citations.] It is
the duty of counsel to refer the reviewing court to the portion of
the record which supports appellant’s contentions on appeal.
[Citation.] If no citation ‘is furnished on a particular point, the
court may treat it as waived.’ ” (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115.) Carde instead discusses his
motion to compel compliance with a subpoena, concluding a
“short continuance” of the hearing on the summary judgment
4 The only declaration in support of a request to continue the
summary judgment hearing that we have been able to locate in
this massive record is the one Carde’s counsel filed in support of a
request to continue the hearing that the trial court granted in
September 2023.
14
motion to allow his motion to compel to be heard and further
discovery to be obtained “was completely reasonable.” As Carde
has not demonstrated he made a request for a continuance of the
summary judgment hearing that complied with section 437c,
subdivision (h) and made the showing the statute requires, Carde
has not established a continuance was “virtually mandated” here
or that the court erred when it failed to grant a continuance
under that provision. (See Fadeeff v. State Farm General Ins. Co.
(2020) 50 Cal.App.5th 94, 103–104 [“ ‘[A] continuance (normally a
matter within the court’s discretion) is “virtually mandated”
where the nonmoving party makes the requisite showing’ ” under
§ 437c, subd. (h)].)
A party who cannot make the showing required under
section 437c, subdivision (h) may seek a continuance under the
ordinary discretionary standard applied to continuance requests,
which requires a showing of good cause. (Hamilton v. Orange
County Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 765 (Hamilton).)
This Carde did: at the summary judgment hearing, Carde’s
counsel stated that if the trial court did not find sufficient Carde’s
declaration as to industry custom and practice with respect to
submissions, and if the absence of an independent expert witness
declaration was dispositive, counsel wanted additional time to
obtain and submit a declaration from an outside expert witness.
“A court’s denial of an oral request to continue a summary
judgment hearing is reviewed for abuse of discretion.” (Menges v.
Department of Transportation (2020) 59 Cal.App.5th 13, 19.) A
trial court abuses its discretion when it exercises that discretion
in an arbitrary, capricious, or patently absurd manner that
results in a manifest miscarriage of justice. (People v. Johnson
(2022) 12 Cal.5th 544, 605–606.) Carde’s entire argument with
15
respect to good cause for this continuance request is that it “was
reasonable given the early disposition of the case and the trial
court’s position that expert testimony was needed to support his
opposition.” That a request may have been reasonable does not
mean denying it was an abuse of discretion. “ ‘To establish an
abuse of discretion, defendants must demonstrate that the trial
court’s decision was so erroneous that it “falls outside the bounds
of reason.” [Citations.] A merely debatable ruling cannot be
deemed an abuse of discretion.’ ” (Id. at p. 605.) Carde has failed
to demonstrate error.
Carde’s final contention is that the trial court failed to
exercise its discretion because it did not explain at the hearing or
in its written ruling “why a continuance was not warranted.”
Carde provides no argument or authority that supports imposing
on the trial court a requirement to find a continuance was “not
warranted” rather than making the usual determination of
whether the moving party has shown good cause for a requested
continuance. (See Hamilton, supra, 8 Cal.App.5th at p. 765
[continuance requests require a showing of good cause].)
Moreover, the failure to expressly rule on a request for a
continuance does not signify a failure to exercise discretion.
Although the record does not indicate an explicit ruling on
Carde’s request for a continuance, “the grant of summary
judgment implies a denial.” (Frazee v. Seely (2002)
95 Cal.App.4th 627, 634.)
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DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
17
