                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BISNO DEVELOPMENT                               No. 14-57008
ENTERPRISE, LLC,
                                                D.C. No. 2:13-cv-07961-R-PJW
             Plaintiff - Appellant,

  v.
                                                MEMORANDUM*
BARRY LEVINE, et al.,

             Defendants - Appellees.




                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel J. Real, District Judge, Presiding

                     Argued and Submitted November 9, 2016
                              Pasadena, California

Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.

       Bisno Development Enterprise, LLC (“BDE”) appeals from summary

judgment granted to defendants Barry Levine, Ari Schottenstein, Protilus

Investors, LLC, Illus Investors, LP, Ilus GP US, LLC, Ridgemount Investments,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Inc., Alex Iscoe, and David Ulmer (collectively “Levine defendants”), which

rejected its California state law claims of intentional interference with contract and

quantum meruit. As the facts are known to the parties, we repeat them only as

necessary to explain our decision.

                                           I

       BDE contends that it had an agreement with Vineyard Development Inc.

(“VDI”) under which it was entitled to receive a share in the profits from the

development of certain property in Santa, Ana, California. BDE further argues that,

by causing the dissolution of a venture between VDI and the Levine defendants to

develop this property, the Levine defendants interfered with its agreement with

VDI.

       But, in order to bring an intentional interference with contract claim, BDE

must first demonstrate that it had enforceable contract with VDI. See Pac. Gas &

Elec. Co. v. Bear Stearns & Co., 791 P.2d 587, 589–90 (Cal. 1990). BDE

acknowledges that the record does not contain such a written agreement;

nonetheless it contends that various documents in the record demonstrate the

existence of an oral agreement. BDE points to the declaration of Ryan Ogulnick,

the owner of VDI, who stated that he made an oral agreement under which “BDE

might be eligible for a discretionary success bonus—at [his] sole and absolute


                                           2
discretion.” Such a discretionary agreement is unenforceable, however, because

there is no way to determine if there has been a breach. See Moncada v. W. Coast

Quartz Corp., 164 Cal. Rptr. 3d 601, 609–10 (Cal. Ct. App. 2013); Ladas v. Cal.

State Auto. Ass’n, 23 Cal. Rptr. 2d 810, 814–15 (Cal. Ct. App. 1993). Other

documents in the record also fail to provide the terms of an enforceable agreement.

Thus, BDE cannot recover for intentional interference with contract.

                                          II

      Alternatively, BDE argues that it should be entitled to recovery in quantum

meruit. Yet, BDE has failed to provide evidence of actual damages. The parties do

not dispute that BDE received $8,000/month under a separate contract with VDC

at The Met, LLC (“VDCATM”), the corporate entity created by VDI and the

Levine defendants to develop the property. BDE contends that its services

increased the value of the property, entitling it to further compensation. However,

under California law, plaintiffs cannot base recovery on the amount of the benefit

conferred on defendants. Maglica v. Maglica, 78 Cal. Rptr. 2d 101, 105–06 (Cal.

Ct. App. 1998).

      Further, BDE failed to confer a direct benefit upon the defendants, another

requirement of California law. See id. at 104. It was hired to provide services to

VDCATM, which is not a party to this litigation. BDE requests that we remand the


                                          3
case to allow it to amend its complaint to allege that the defendants were alter egos

of VDCATM. However, it has waived its ability to make this request by not

presenting it to the district court or raising it in its opening brief before our court.

See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011); Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Thus, BDE’s request for relief in

quantum meruit also fails.

      AFFIRMED.




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