Filed 8/25/14 Chalal v. Syprasert CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

SUKHA SINGH CHAHAL et al.,
                                                                                           F066992
         Plaintiffs and Appellants,
                                                                             (Super. Ct. No. VCU247413)
                   v.

ARICH SYPRASERT et al.,                                                                  OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L.
Hicks, Judge.
         Law Offices of William L. Cowin, William L. Cowin and Cathleen A. Cowin for
Plaintiffs and Appellants.
         Sullivan & Sullivan, Ryan P. Sullivan and Josh T. Fox for Defendants and
Respondents Arich and Boualiene Syprasert.
         Ward R. Stringham and Zachary W. Stringham for Defendants and Respondents
Balwant Singh Dhaliwal, Baljinder Kaur Dhaliwal and BBP Market, Inc.
                                                        -ooOoo-
         Sukha Singh Chahal and Satvir Kaur (collectively the Chahals) leased property
from Arich and Boualiene Syprasert (collectively the Sypraserts) to operate a
convenience store business they were buying from the former tenant. At that time, the
Sypraserts allegedly told the Chahals that they would sell the property to them if they
ever decided to sell. Thereafter the Chahals invested a significant amount of money into
the business and improvements to the property. Three years later, the Sypraserts decided
to sell the property and offered it the Chahals. Negotiations ensued; eventually the
parties orally agreed to a price and the Sypraserts opened an escrow, but they never
signed a purchase agreement or escrow instructions. Before the escrow closed, the
Sypraserts sold the property to a third party, BBP Market, Inc., which is owned by
Balwant Singh Dhaliwal and Baljinder Kaur Dhaliwal (collectively the Dhaliwals).
       The Chahals sued the Sypraserts and Dhaliwals alleging five causes of action
based essentially on breach of contract and fraud. The Sypraserts and Dhaliwals
demurred to the complaint, contending the claims were uncertain and failed to state facts
sufficient to constitute causes of action. The trial court sustained the demurrers with
leave to amend. After the Chahals filed a first amended complaint (FAC) which included
17 causes of action, the Sypraserts and Dhaliwals again demurred. The trial court agreed
no causes of action were stated, primarily because the contracts upon which the claims
were based were unenforceable as they were uncertain and violated the statute of frauds.
After giving the Chahals an opportunity to show how they could remedy the FAC’s
defects, the trial court sustained the demurrers without leave to amend.
       On appeal, the Chahals contend their claims are adequately stated and, if not, they
should be given leave to amend. We disagree and affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       On appeal from a judgment of dismissal after a demurrer is sustained without
leave to amend, we assume the truth of all facts properly pleaded in order to determine
whether a cause of action is stated. (Howard Jarvis Taxpayers Assn. v. City of La Habra
(2001) 25 Cal.4th 809, 814; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 579.)
Facts appearing in exhibits attached to the complaint are also accepted as true and given

                                             2.
precedence over inconsistent allegations in the complaint. (Barnett v. Fireman’s Fund
Ins. Co. (2001) 90 Cal.App.4th 500, 505; Holland v. Morse Diesel Internat., Inc. (2001)
86 Cal.App.4th 1443, 1447.) We do not assume the truth of contentions, deductions or
conclusions of fact or law. (Moore v. Regents of University of California (1990) 51
Cal.3d 120, 125 (Moore).) In accordance with these rules, we recite the facts as taken
from the FAC.
       In January 2008, the Chahals learned that a convenience store business in Visalia,
called Som’s Market, was for sale. The Chahals met with the business’s owner, Mr.
Somcast, who told them he was closing the business, which generated income of only
about $50 per day and had inventory of less than $2,000. He showed them the lease
space, which was in a “terrible, run down condition.” The business had no coolers, but
did have a cash register and some shelving that was in poor condition. After the Chahals
expressed an interest in the business, Somcast met with the building’s owners, the
Sypraserts, who provided Somcast with a proposed monthly property lease form.
       The Chahals do not speak, read or write English very well, so they reviewed the
proposed lease with family and friends. Somcast was informed that the lease was
unacceptable to the Chahals for a number of reasons, including that a month-to-month
lease made no business sense since the business required significant improvements, the
lease would need to be for at least 15 years comprised of three sets of five-year intervals,
and the Chahals should have the right to purchase the property if the Sypraserts were
going to sell it in the future. Somcast relayed these concerns to the Sypraserts. Arich
Syprasert and Somcast met with the Chahals and presented a revised lease, which
changed the lease to three five-year renewable terms, with a monthly rental increase at
the end of each five year term. The Chahals signed the lease only after “various further
promises” to protect their “planned investment of substantial funds and time.”
Specifically, the Sypraserts promised the Chahals that if they “would purchase the Som’s
Market business from Mr. Somcast, make the required improvements, and develop a

                                             3.
viable business and then later, if the Syprasert defendants decided in the future to sell the
property, the Syprasert defendants would sell the property to the Plaintiffs.” The first
five-year term began on March 1, 2008, and was to end on February 28, 2013.
       “Based on the written agreement, the promises and the verbal agreements of the
Syprasert defendants and the modified written lease contract,” the Chahals purchased the
business, goodwill, liquor license, personal property, cash register and shelving from
Somcast for approximately $15,000. Immediately after escrow closed, the Chahals
“invested huge and substantial sums of their money and their time into making long term
improvements to the property,” including installing an eight-door walk-in cooler, new tile
flooring, new counters and shelving, an office, camera surveillance systems, and
bathrooms. The Chahals invested nearly $100,000 in improvements and increased the
business income from $1,500 per month to over $60,000 per month.
       In October 2011, the Sypraserts told the Chahals they were thinking of selling the
property and asked if they wanted to purchase it; the Chahals said they did. Negotiations
ensued; Arich would stop by the store to discuss the purchase price and terms with the
Chahals, who usually had family members and friends function as interpreters in
negotiations. At first, the parties could not agree on the price, with the Sypraserts asking
for $300,000 and the Chahals offering $250,000. The Sypraserts’ lender, Mid Valley
Financial Services, Inc., held a first trust deed on the property. In January 2012,1 the
parties agreed to split the different in price and the Sypraserts agreed to sell the property
to the Chahals for $270,000. Arich told the Chahals, “‘We have a deal and I will get an
escrow opened and make arrangements with Mid Valley.’”
       The Sypraserts opened an escrow with First American Title Company and “made a
deal with Mid Valley to allow [the Chahals] to assume financing of $235,000 plus cash to
the purchase price for the property.” This would require the Chahals to advance a
       1   Subsequent references to dates are to dates in 2012, unless otherwise stated.



                                               4.
$35,000 cash down payment. Immediately after escrow opened, the Chahals signed an
authorization allowing First American Title to discuss the escrow and the Chahals’
business with Mid Valley. The Sypraserts provided the Chahals with a copy of a March
2009 lease with the owner of a Chinese food restaurant located on the property the
Chahals were purchasing.
       In April, the escrow was ready to close; only the Sypraserts’ signature was
required on the closing documents. Arich, however, informed First American Title, Mid
Valley and the Chahals that his wife, Boualiene Syprasert, was not available to sign the
closing documents because she had gone on a month long trip to India with an Indian
friend. Arich asked the parties to wait until his wife’s return to execute the closing
documents. Unbeknownst to the Chahals, the Indian friend that accompanied Boualiene
on the trip was the best friend of the wife of Balwant Singh Dhaliwal, the Chahals’
business competitor. When Balwant was informed of the Chahals’ pending purchase of
the Sypraserts’ property, he contacted Arich and negotiated a higher purchase price for
the property. The Dhaliwals and Sypraserts secretly opened escrow with Chicago Title
and went forward with the transaction. On May 18, a grant deed was recorded in which
the Sypraserts granted the property to BBP Market, Inc. The “Document Date” on the
deed is April 30, and the Sypraserts signatures were notarized on May 1. The deed
reflects that Chicago Title Company handled the escrow between the Sypraserts and
Dhaliwals.
       On or about May 22, Arich told the Chahals that he was going to sell the property
to Balwant Singh Dhaliwal and they should start paying him rent in June. While the
Chahals alleged they were financially qualified by Mid Valley to assume the $235,000
financing, they signed a final set of escrow purchase instructions, dated May 23, which
estimated a closing date of June 30 and required the Chahals to pay a $35,000 down
payment and obtain a “First New Loan” of $235,000. The instructions state that the



                                             5.
escrow was contingent on the buyer and property qualifying for the new loan. The
Sypraserts did not sign the instructions.
       On May 24, the Chahals deposited the $35,000 down payment with First
American. They also completed and executed a Preliminary Change of Ownership
Report. An amendment to the escrow instructions, dated May 23, required the Sypraserts
to deliver a copy of their promissory note and deed of trust with Mid Valley to the
Chahals and provided that Mid Valley would prepare an All-Inclusive Note and Deed of
Trust, to be executed by the parties, which would “result in the existence of a creditor-
debtor relationship” between the Sypraserts and Chahals respectively. The instructions
further provided that First American had not obtained an assumption package, statement
of condition or any other approval from Mid Valley. First American was instructed not
to contact Mid Valley regarding the existing loan, and to close escrow without a formal
assumption or consent or approval from Mid Valley. None of the parties signed the
amendment.
       In early June, the Chahals timely paid their June rent to the Sypraserts. Arich,
however, told them he no longer owned the property and the rent needed to be paid to
Balwant Singh. Arich agreed to sign the rent check over to Balwant Singh and provide it
to him immediately. This did not occur, and the Dhaliwals immediately commenced an
unlawful detainer action against the Chahals in an effort to terminate their leasehold
rights. The action failed.
       The Original Complaint
       On May 25, the Chahals filed a verified complaint against the Sypraserts and
Balwant Singh. The Chahals alleged that while it appeared the Sypraserts were
attempting to sell the property to Balwant, they did not know Balwant’s intentions or
what he knew about their purchase rights. The complaint alleged five causes of action:
(1) fraud; (2) negligent misrepresentation; (3) breach of contract; (4) specific
performance; and (5) request for temporary restraining orders and injunctive relief.

                                             6.
       In the fraud claim, the Chahals alleged that from February 2008 to May 21, 2012,
the Sypraserts “continually represented” to them that if and when the Sypraserts decided
to sell the property, they would sell it to the Chahals if the Chahals made substantial
improvements to the property and increased the business; in reliance on those
representations, they purchased the business and made improvements; the representations
were false, as the Sypraserts told them they intended to sell the property to a different
party; and when the Sypraserts made the representations, they knew them to be false.
The negligent misrepresentation claim was based on the same representations.
       In the breach of contract claim, the Chahals alleged that from January 2008 to
May 21, 2012, the Sypraserts “entered into both verbal and written agreements” with the
Chahals. The Chahals alleged they obviously entered into the lease only because of the
Sypraserts’ promise to sell the property to them if they decided to sell and while the
Chahals “should have been protected by a written option agreement, . . . these
deficiencies and the Syprasert defendants’ obvious taking advantage of the Plaintiffs by
virtue of the Plaintiffs’ lack of knowledge and, in effect, blind trust, is overcome by
virtue of all the exceptions to the statute of frauds governing land contracts.”
       The Chahals further alleged that “[a]t a point in time between October, 2011 and
March, 2012, the Syprasert defendants and the Plaintiffs entered into a fully enforceable
purchase contract[,]” which the Chahals had fully performed and the Sypraserts had
partially performed by opening escrow, dictating its terms, and making loan
arrangements. The Chahals asserted the Sypraserts were in breach of the contract with
them because they refused to sign the documents needed to close escrow. The Chahals
asked for specific performance of the purchase contract as set forth in the various escrow
documents attached to the complaint, including the final escrow sale agreement. The
Chahals also asked for temporary restraining orders and injunctive relief to prevent the
defendants from changing title of the property to anyone other than themselves.



                                             7.
       The Sypraserts and Dhaliwal filed separate demurrers to the complaint. They
demurred on grounds of uncertainty and failure to state facts sufficient to constitute a
cause of action. They also argued the alleged contracts were unenforceable because they
were barred by the statute of frauds.
       In opposition to Dhaliwal’s demurrer, the Chahals asserted that after they filed the
complaint they learned facts that justified making additional allegations against Dhaliwal.
Accordingly, they asked the trial court to overrule the demurrer and allow them to file an
amended complaint. The Chahals filed a doe amendment which substituted BBP Market
Inc. in place of Doe 1, and corrected the name of defendant Balwant Singh to Balwant
Singh Dhaliwal.
       On August 9, the trial court sustained Dhaliwal’s demurrer as to all causes of
action with leave to amend, giving the Chahals 10 days from service of the order to file
an amended complaint. The trial court noted that while the Chahals’ opposition did not
address the complaint’s deficiencies as asserted by Dhaliwal, they suggested there were
additional facts that could be alleged to support their claims. Accordingly, the trial court
determined that leave to amend was appropriate.
       In their opposition to the Sypraserts’ demurrer, the Chahals asserted they would be
filing an amended complaint before the August 23 hearing on the Sypraserts’ demurrer
and asked the court to overrule the demurrer. The Chahals agreed the original complaint
would benefit from clarification and an amendment would correct any alleged
deficiencies as to uncertainty and the statute of frauds. With respect to the breach of
contract claim, the Chahals argued they were offered a “Right of First Offer,” or ROFO,
“on whatever terms the business would otherwise be sold to a third party[,]” and the
Sypraserts’ failure to honor the ROFO after the Chahals made significant improvements
represented an actionable claim. The Chahals argued the statute of frauds was not a bar
to their claims because the equitable estoppel exception to the statute applied and the oral
contract had been partially performed.

                                             8.
       On August 23, the trial court sustained the Sypraserts’ demurrer to the complaint
with leave to amend. The court ordered the Chahals to file the first amended complaint
within seven days of service of the order. The court noted that although the Chahals were
granted 10 days to file an amended complaint when it sustained Dhaliwal’s demurrer,
they had not done so. The court explained it was granting leave to amend because, while
the Sypraserts had shown the complaint was uncertain and insufficient to state causes of
action against them, it might be possible for the Chahals to asserts facts sufficient to state
some cause of action.
       The First Amended Complaint
       The Chahals subsequently filed a First Amended Complaint (FAC) which alleged
17 causes of action labeled as follows: (1) breach of contract; (2) specific performance;
(3) fraud and deceit; (4) fraud in the inducement; (5) promise without intent to perform;
(6) good faith improvements; (7) misrepresentation; (8) interference with prospective
business advantage; (9) interference with contact; (10) alter ego; (11) conspiracy;
(12) aiding and abetting; (13) constructive trust; (14) negligence; (15) restraining orders;
(16) injunctive relief; and (17) declaratory relief. Balwant Singh Dhaliwal’s wife,
Baljinder Kaur Dhaliwal, was added as a defendant.
       The Chahals’ claims can be divided essentially into the following categories:
(1) contract-based claims comprised of the first and second causes of action;
(2) misrepresentation claims comprised of the third, fourth, fifth, seventh and fourteenth
causes of action; (3) claims of tortious interference with contract and prospective
relations comprised of the eighth and ninth causes of action; (4) claims seeking to
attribute liability to all defendants comprised of the tenth, eleventh and twelfth causes of




                                              9.
action; and (5) requests for equitable and declaratory relief, i.e. the thirteenth, fifteenth,
sixteenth and seventeenth causes of action.2
       In the contract claims, the Chahals continue to allege that the Sypraserts entered
into both verbal and written agreements with them from January 2008 to May 21, 2012.
They further allege the agreement between themselves and Somcast was entered into
based on the Sypraserts’ verbal promises and representations that if the Chahals “invested
huge sums of money into the real property and the business and inventory, the [Chahal]s
would be sold the property if and when the Syprasert defendants decided to sell.” The
Chahals add that “there was partial performance of the parties’ purchase agreement by
both parties, which supports an equitable estoppel against any statute of frauds issues
raised” by the Sypraserts. The Chahals also continue to allege that between October
2011 and February 2012, they entered into a “fully enforceable purchase agreement” with
the Sypraserts, which the Chahals had fully performed. The Chahals allege the
Sypraserts’ “breach of their agreements with the plaintiffs” would cause them to incur
substantive past and future damages.
       In the second cause of action, the Chahals ask the court to “order specific
performance of the purchase agreement as set forth in the various escrow
documentation,” including the final escrow sale agreement. The Chahals assert the
consideration set forth in that document is $270,000, with the Sypraserts receiving
$270,000 in cash comprised of a $35,000 down payment from the Chahals and a
$235,000 loan from Mid Valley to the Chahals.
       The misrepresentation claims allege the Sypraserts falsely promised,
“[c]ommencing in February, 2008 to May 21, 2012,” that they would sell the property to


       2 The Chahals conceded the sixth cause of action for good faith improvements did
not state a viable claim. They do not contend otherwise on appeal. Accordingly, we do
not discuss this claim.



                                              10.
the Chahals who, in reliance upon this promise, incurred expenses improving the
property. The FAC alleges that the Sypraserts “may or may not have originally intended
to keep their promise that, when they decided to sell the property they would sell it to
their tenants,” but based on the Sypraserts’ subsequent conduct, it was “now obvious” the
Sypraserts “did not intend to perform on their promise.”
       In the interference claims, the Chahals allege the Dhaliwals interfered with their
purchase of the property by contacting the Sypraserts and offering to purchase the
property at a higher price, thereby causing the Sypraserts to breach their agreements with
the Chahals and refuse to close the transaction with them. In the claims seeking to
impose liability, the Chahals allege (1) BBP is the Dhaliwals’ alter ego, (2) all defendants
participated in a civil conspiracy regarding the Chahals’ right to purchase the property
from the Sypraserts, and (3) all defendants “participated via aiding and abetting each
other respecting the frauds, interference and breaches of agreements referenced” in the
FAC. Finally, in the equitable claims the Chahals seek to (1) impose a constructive trust
on the property, (2) obtain an order restraining all defendants from changing title of the
property or allowing liens to be placed on the property, (3) obtain a permanent injunction
incorporating the restraining order prohibitions, and (4) obtain declaratory relief to
“preserve the status quo for all the parties.”
       The Demurrers to the FAC
       The Sypraserts and Dhaliwals each demurred both specially and generally to the
FAC on the grounds that each cause of action was uncertain and failed to state facts
sufficient to constitute a cause of action. (Code Civ. Proc., §§ 430.10, subds. (f) & (e),
430.30, subd. (a).) The Dhaliwals also demurred on the grounds no cause of action was
stated against them and the causes of action were unintelligible.
       The Sypraserts argued the entire FAC was uncertain because it failed to specify
the party against whom each cause of action is asserted. They specially demurred to the
contract claims on the grounds they (1) were uncertain, since the Chahals failed to clearly

                                                 11.
allege the existence of the contract upon which their claims for relief were based, (2)
were ambiguous, as the allegations regarding the alleged agreement’s material terms were
uncertain and contradictory, and (3) failed to state whether the alleged contract was oral,
written or implied by conduct. The Sypraserts also argued the contract claims failed as a
matter of law because the alleged terms of the contract were too vague to be enforceable,
depended on an illusory, invalid contract, and the alleged contracts were unenforceable
under the statute of frauds.
       As to the misrepresentation claims, the Sypraserts argued there was no cause of
action stated because (1) the alleged misrepresentation related to a future event, and
(2) there is no allegation that the Sypraserts did not intend to perform their alleged
promise to sell the property to the Chahals at the time the promise was made. The
Sypraserts contended the civil conspiracy and aiding and abetting claims were not
actionable because the Chahals failed to allege the Sypraserts committed any tortious act.
Finally, the Sypraserts asserted the claims for equitable relief were not actionable because
the Chahals failed to state any valid cause of action against them.
       The Dhaliwals argued that the interference claims alleged against them did not
state facts sufficient to constitute a cause of action because there is no allegation that their
actions amounted to wrongful conduct and the alleged contracts did not satisfy the statute
of frauds. They asserted the claims for alter ego, conspiracy and aiding and abetting,
were theories of liability, not causes of action.
       In opposition to the Sypraserts’ demurrer, the Chahals asserted the breach of
contract claims adequately identified the contracts upon which they are based: (1) an oral
ROFO which states that the Sypraserts promised the Chahals that if they purchased the
Som’s Market business, made the “required improvements,” and developed a “viable
business[,]” and if the Sypraserts decided to sell the property in the future, they would
sell it to the Chahals; and (2) a legally enforceable agreement for sale of the property at
the agreed-upon purchase price of $270,000. The purchase agreement was evidenced in

                                              12.
the written escrow purchase instructions, the Sypraserts’ signed agreement allowing the
Chahals to negotiate with Mid Valley, and the Chahals’ signing of the final set of escrow
instructions, deposit of their purchase funds and being fully prepared to close the sale.
       The Chahals asserted a “ROFO is merely an agreement to negotiate[,]” and the
Sypraserts’ acceptance of the negotiated price ripened the ROFO into a full option. They
further asserted a ROFO does not fall under the statute of frauds and, even if it does, “it
has numerous exceptions, including but not limited to partial performance,” which they
alleged in the FAC. The Chahals urged the court not to decide the statute of frauds issue
on demurrer, as they believed additional writings would be uncovered in discovery to
show its satisfaction or an exception thereto.
       With respect to the misrepresentation claims, the Chahals asserted (1) the ROFO is
an actionable representation, (2) the Sypraserts’ present lack of intent to actually honor
the promise of future performance is sufficient to support their claim of fraud in the
inducement, and (3) while the Sypraserts may have intended to keep the original ROFO
promise when made, they made other fraudulent misrepresentations which support this
claim and led them to believe the Sypraserts were going to honor the ROFO and sell the
property to them. The Chahals requested leave to amend should the demurrer be
sustained.
       In their opposition to the Dhaliwals’ demurrer, the Chahals conceded that the first
seven causes of action were not alleged against them. The Chahals explained that their
interference claims were based on allegations that the Dhaliwals convinced the Sypraserts
to ignore the ROFO and sell the property to them, and they interfered with the ROFO as
the Sypraserts had not signed the final escrow documents. The Chahals acknowledged
both the alter ego and conspiracy claims do not stand on their own, but are dependent on
the prior causes of action incorporated by reference.
       The trial court issued a tentative ruling overruling the demurrers. Only the
Sypraserts’ counsel requested oral argument. At the hearing on the demurrers, the

                                             13.
Sypraserts’ counsel asked the court to decline to adopt its tentative ruling in full, while
the Chahals’ counsel argued the ruling was correct. After taking the matter under
submission, the trial court issued a written ruling sustaining the demurrers. With respect
to the contract claims, the trial court found there was no cause of action stated for any
contract based on the 2008 representation that if the Sypraserts decided to sell, they
would sell to the Chahals because (1) there was no allegation of a price, terms or time,
and the representation was not an option, a right of first refusal or a ROFO, but at most
was a promise to negotiate with the Chahals if and when they decided to sell; (2) the
statement was “too vague and contingent” to be enforced as a contract; (3) the alleged
contract was invalid because, to be enforceable, it must be in writing signed by the
Sypraserts; and (4) the Chahals’ asserted exception to the statute of frauds, namely that
they spent money buying the business and making improvements in reliance on the
promise, did not apply because it “would be utterly unreasonable to rely on so vague and
conditional a statement” since there was no promise they would ever sell.
       With respect to the second alleged oral agreement to sell the property for
$270,000, the trial court found: (1) by virtue of the statute of frauds, it was not a valid,
enforceable contract; and (2) the Chahals claimed exception of full performance failed
because tendering money toward an oral contract to purchase real property is not the full
performance needed to take a contract out of the statute of frauds, and the allegations and
attached exhibits show the Chahals did not in fact tender the performance called for by
them under their alleged contract. The court noted that while the sale escrow instructions
state the price was $270,000, comprised of $35,000 cash from the Chahals and $235,000
from a new loan, and the FAC alleges the Chahals qualified to assume the existing loan,
there is nothing in the escrow documents attached to the FAC that show they did and
documents that show they did not. Specifically, the proposed amended escrow
instruction, dated May 23, shows that the Chahals will take subject to the existing loan,



                                              14.
on which the Sypraserts would still be liable, and these instructions, as well as the
$35,000 deposit, were not put in escrow until after the property was sold to Dhaliwal.
       The trial court determined the interference claims could be actionable only if the
interference alleged was wrongful and there is nothing wrongful about out-bidding
someone for a piece of property. In addition, the court found there was no prospective
economic advantage to be interfered with because the Sypraserts were under no
obligation to sell to the Chahals.
       With regard to the fraud claims, the court found (1) the claimed promise to sell to
the Chahals related only to possible future action, and therefore was not an actionable
representation, and (2) no present damages based on that promise were alleged. With
respect to the claimed 2012 promise to sell for $270,000, the representation was required
by the statute of frauds to be in writing and could not be evaded by labeling it a tort. The
court further found there was no basis for injunctive relief because no cause of action was
stated for specific performance, and no basis for declaratory relief to preserve the status
quo.
       The trial court found that while there was a sufficient basis to sustain the demurrer
without leave to amend, it would allow the Chahals to submit a statement regarding what,
if anything, they believed they could truthfully allege which would remedy the FAC’s
defects. The Chahals submitted a brief in which they suggested only two factual
amendments: (1) the promise to sell to the Chahals, characterized as a ROFO, was
limited to the lease term, and (2) the financing terms of the purported sales contract were
that they could either assume the existing loan or obtain a new loan. They further
asserted that while the ROFO was an oral agreement, it was not an agreement for an
interest in land that is subject to the statute of frauds, and “the contract alleged to have
been breached is the ROFO, which ripened into a full option contact upon acceptance of
the $270,000 purchase price, which is not contested in this demurrer. The question is



                                              15.
whether the option was substantially performed.” The Chahals claimed they adequately
pled substantial performance.
          The trial court subsequently issued a written ruling confirming its prior ruling
sustaining the demurrers without leave to amend. The trial court determined the
proposed factual changes did not affect the failure of the alleged agreements to be in
writing and signed by the Sypraserts. The trial court determined the ROFO was subject
to the statute of frauds and therefore, even if the proposed amendment constituted a
ROFO, it was unenforceable because it was not in writing and signed by the party to be
charged. Noting that the entire case depended on there being at least one enforceable
contract, and none of the alleged oral contracts were enforceable because they fell under
the statute of frauds, the Chahals failed to show how they could amend to cure the basic
defect.
                                         DISCUSSION
          A general demurrer presents the same question to the appellate court as to the trial
court, namely, whether the plaintiff has alleged sufficient facts in the complaint to justify
relief on any legal theory. (Service by Medallion, Inc. v. Clorox Co. (1996)
44 Cal.App.4th 1807, 1811-1812.) The “complaint must be liberally construed to afford
plaintiff [his or] her day in court and render substantial justice between the parties.”
(Cooper v. National Railroad Passenger Corp. (1975) 45 Cal.App.3d 389, 393,
disapproved on other grounds in Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 401,
fn. 8.) A demurrer is properly granted when the pleadings fail to state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Regardless of the
label attached to the cause of action, the court must examine the complaint’s factual
allegations to determine whether they state a cause of action on any available legal
theory. (Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 560.)
          An appellate court presumes that the judgment appealed from is correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and

                                               16.
inferences to affirm the judgment unless the record expressly contradicts them. (See
Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) An appellant has the burden of
overcoming the presumption of correctness. (Hearn v. Howard (2009) 177 Cal.App.4th
1193, 1207.) Even when the appellate court is required to conduct a de novo review,
review “is limited to issues which have been adequately raised and supported in [the
appellant’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) It is the
appellant’s burden to demonstrate the trial court sustained the demurrer erroneously.
(Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829-1830.)
       The Chahals begin by requesting that we review the FAC, the briefs in support and
opposition to the demurrers, and the trial court’s rulings, so we may exercise our
independent judgment “with a minimum of repetition of prior argument” in their opening
brief. In essence, the Chahals are inviting us to examine the parties’ trial court papers as
a means of determining whether the trial court erred in sustaining the demurrers. It is
well settled, however, that it is not appropriate to incorporate by reference into an
appellate brief points and authorities contained in trial court papers, even if they are part
of the appellate record. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
294, fn. 20; Garrick Development Co. v. Hayward Unified School Dist. (1992) 3
Cal.App.4th 320, 334.) Instead, California Rules of Court, rule 8.204(a)(1)(B) requires
that appellate briefs “support each point by argument and, if possible, citation to
authority.” Accordingly, we disregard the purported incorporation by reference and
consider only those arguments properly raised in the Chahals’ briefs.
       The Contract Claims
       “A cause of action for breach of contract requires proof of the following elements:
(1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance;
(3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF
Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) Specific performance is
an equitable remedy available for breach of contract. (Blackburn v. Charnley (2004) 117

                                             17.
Cal.App.4th 758, 766; Golden West Baseball Co. v. City of Anaheim (1994) 25
Cal.App.4th 11, 49; Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143
Cal.App.3d 571, 575 (Tamarind).) In addition to proving the contract has been breached,
a plaintiff seeking specific performance must demonstrate that: (1) the legal remedy is
inadequate; (2) the underlying contract is reasonable and supported by adequate
consideration; (3) a mutuality of remedies exists; (4) the contractual terms are sufficiently
certain such that the court knows what it is to enforce; and (5) the requested performance
is substantially similar to that promised in the contract. (Tamarind, supra, at p. 575.)
       The Chahals assert there are two contracts at issue that are alleged in the FAC:
(1) an oral ROFO, and (2) a written purchase agreement. They claim they entered into
the lease based on the oral promises regarding the ROFO and they have a “legally
enforceable agreement for sale of the property at the agreed-upon purchase price of
$270,000” based on the ROFO and the “well-documented substantial performance.”
       We begin with the asserted 2008 oral ROFO, which the Chahals claim is based on
the allegation in the FAC that the Sypraserts promised that if the Chahals would purchase
the Som’s Market business, make the “required improvements” and “develop a viable
business,” then if the Sypraserts later decided to sell the property, they would sell it to the
Chahals. This, however, is not a ROFO. A ROFO is one type of preemptive purchase
right by which a landowner gives the grantee the first opportunity to purchase the
property if the landowner decides to sell. (Bill Signs Trucking, LLC v. Signs Family
Limited Partnership (2007) 157 Cal.App.4th 1515, 1522 (Bill Signs Trucking);
Greenwald & Bank, Cal. Practice Guide: Real Property Transactions (The Rutter Group
2013) ¶’s 8:200, 8:204, pp. 8-40 – 8-41 (hereafter Greenwald & Bank).) The other type
of preemptive purchase right is a “right of first refusal.” (Greenwald & Bank, supra,
¶ 8:204, p. 8-41.)
       The two preemptive purchase rights differ. Under a “right of first refusal,” the
landowner seller first procures an offer to purchase from a third party on terms and

                                              18.
conditions acceptable to the seller, and then presents that offer to the grantee of the right
of first refusal, who has a limited period of time to either match the offer or reject it. (Bill
Signs Trucking, supra, 157 Cal.App.4th 1515, 1523; Greenwald & Bank, supra, ¶ 8:206,
p. 8-41.) Under a ROFO, the seller, upon deciding to market its property, must first make
an offer to the grantee of the ROFO; if the grantee does not accept the offer, the seller is
free to sell to anyone else on the terms the grantee rejected or on terms which are better,
but not worse, for the seller. (Bill Signs Trucking, supra, 157 Cal.App.4th at p. 1523.)
“‘[I]n other words, no other buyer can get a better deal than that which was presented to
the grantee.’” (Ibid.)
       The advantage of using a ROFO instead of a right of first refusal “‘is that once the
grantee has rejected the seller’s offer, the seller is free to proceed with a sale to another
buyer without having to go back to the grantee (provided the sale is on terms no better
than those offered to the grantee). Also, once the grantee elects not to accept the seller’s
offer, brokers are more willing to undertake a listing on the property. [¶] On the other
hand, the seller will (at least theoretically) have to present to the grantee its “rock-
bottom” price (and best terms), since the seller will not be able to accept any price lower
than that offered to the grantee.’” (Bill Signs Trucking, supra, 157 Cal.App.4th at
p. 1523.)
       Contrary to the Chahals’ assertions, the FAC did not allege terms that comprise a
ROFO, as it does not state that the Sypraserts must first offer the property to the Chahals
if they decided to sell, give the Chahals a time within which to accept the offer, or
provide that the Sypraserts are free to sell to a third party should the Chahals fail to
accept the offer. Instead, the FAC alleges that the Sypraserts promised to sell the
property to the Chahals if they decided to sell. The trial court correctly found that by its
stated terms, this was not an option, a right of first refusal, or a ROFO; at most, it was a
promise to negotiate with the Chahals if and when the Sypraserts decided to sell.



                                              19.
       Citing to the trial court’s finding, the Chahals misconstrue Bill Signs Trucking to
claim that a ROFO can be an agreement to negotiate because a “ROFO merely obliges
the owner to undergo exclusive good faith negotiations with the rights holder before
negotiating with other parties.” But that is not how a ROFO is defined in Bill Signs
Trucking or explained in Greenwald & Bank. Both sources explain that a ROFO merely
requires the landowner to present an offer to the right holder; if the right holder rejects
the offer, the landowner is then free to sell to anyone else on terms that are equal or better
for the seller. (Bill Signs Trucking, supra, 157 Cal.App.4th at p. 1523; Greenwald &
Bank, supra, ¶ 8:208, p. 8-44.) There is no requirement to negotiate with the right
holder, either when the offer is first presented or when an offer is received from a third
party following the right holder’s rejection of the original offer.
       Under California law, a contract is enforceable only if it is sufficiently definite for
the court to ascertain the parties’ obligations and determine whether those obligations
have been performed or breached. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th
199, 209.) Here, the 2008 promise to sell to the Chahals if (1) the Sypraserts decide to
sell, (2) the Chahals make the “required improvements” or “invest[] huge sums of money
into the real property and the business and inventory,” and (3) the Chahals “develop a
viable business[,]” is too vague and contingent to be enforced as a contract. This is
because the court could not ascertain the conditions that would trigger the Sypraserts’
obligation to sell to the Chahals, namely what constitutes required improvements, what
constitutes a “huge” sum of money, and when the business is “viable.”
       Even if the 2008 oral promise is construed as a ROFO and is sufficiently certain, it
is unenforceable under the statute of frauds. Pursuant to Civil Code section 1624,3
subdivision (a)(3), a contract “for the sale of real property, or of an interest therein[,]” is
invalid unless it is “in writing and subscribed by the party to be charged or by the party’s
       3   Undesignated statutory references are to the Civil Code unless otherwise noted.



                                              20.
agent[.]” The issue here is whether a ROFO is an interest in real property that is subject
to the statute of frauds as stated in section 1624, subdivision (a)(3).
       The law characterizes property interests as a bundle of rights, which includes the
right to alienate property. (In re Forchion (2011) 198 Cal.App.4th 1284, 1308.) A
landowner has a legally recognized right to sell a preemptive right in his or her property.
(Gregory v. City of San Juan Capistrano (1983) 142 Cal.App.3d 72, 89 (Gregory),
disapproved on another point by Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 686,
fn. 43.) “It is well established that a preemptive right is a valuable property right which
may be bought, sold, and enforced in a court of law.” (Gregory, supra, 142 Cal.App.3d
at p. 89.) An oral agreement restricting a landowner’s right to alienate property is an
agreement affecting title to real property and within the statute of frauds. (Pellerito v.
Dragna (1940) 41 Cal.App.2d 85, 89; see also Estate of Baglione (1966) 65 Cal.2d 192,
197 [“Agreements restricting the right to alienate real property . . . are within the statute
of frauds.”]; Woods v. Bradford (1967) 254 Cal.App.2d 501, 505 [“an option to purchase
real property falls within the statute of frauds and therefore must be in writing”]; Ganiats
Constr., Inc. v. Hesse (1960) 180 Cal.App.2d 377, 383-384 [same].) Since a ROFO is a
preemptive right that alienates a landowner’s property rights, it is an interest in land and
invalid unless it is “in writing and subscribed by the party to be charged.” (§ 1624,
subd. (a)(3).) Here, the Chahals admit the ROFO is oral. Accordingly, the statute of
frauds precludes enforcement unless an exception applies.
       The Chahals, however, assert that a ROFO is not subject to the statute of frauds
because it is not technically an interest in land. The only authorities they cite for this
proposition are three out-of-state cases, Stenke v. Masland Dev. Co. (1986)
152 Mich.App. 562 [394 N.W.2d 418] (Stenke), A.S. Reeves & Co., Inc. v. McMickle
(2004) 270 Ga.App. 132 [605 S.E.2d 857] (Reeves), and Stuart v. D’Ascenz
(Colo.Ct.App. 2000) 22 P.3d 540 (Stuart). None of the cases, however, support their
position.

                                             21.
       Stenke involved a lessee’s action to specifically enforce an option to purchase
commercial property that was part of a written lease agreement. (Stenke, supra, 394
N.W.2d at p. 420.) The Michigan appellate court rejected the appellant landowner’s
argument that the option constituted an unreasonable restraint on alienation and also
concluded the lease did not violate that state’s common-law rule against perpetuities
because, under that law, the holder of an option to purchase land does not have a legal or
equitable interest in the premises. (Stenke, supra, 394 N.W.2d at p. 422-423.)
       Significantly, the Michigan court did not address the statute of frauds. Moreover,
to the extent the Chahals are relying on the Michigan court’s statement regarding whether
options are property interests subject to the rule against perpetuities to show they are not
property interests under the statute of frauds, the holding is directly contrary to California
case law, which has held that “[a] right of first refusal is a property interest subject to the
[r]ule [against perpetuities].” (Taormina Theosophical Community, Inc. v. Silver (1983)
140 Cal.App.3d 964, 977; see also Strong v. Theis (1986) 187 Cal.App.3d 913, 920
[noting both options and preemptive rights are property interests subject to the rule
against perpetuities].)
       In Reeves, the Georgia appellate court held that a written option contract for the
purchase of realty was void and unenforceable because it violated the statute of frauds as
it was vague and lacked essential terms. (Reeves, supra, 605 S.E.2d at pp. 858-859.) In
so holding, the court rejected the option holder’s argument that its tender of the entire
purchase price cured the inadequate terms, noting that a mere tender or attempt at
performance by one party, without acceptance by the other, cannot cure a violation of the
statute of frauds in a real estate contract. (Id. at pp. 859-860.) Finally, in the Colorado
case of Stuart, the court merely interpreted the language in a written lease and concluded
it only granted the lessee a right of first refusal, rather than an option. (Stuart, supra, 22
P.3d at p. 541-542.)



                                              22.
       Since a ROFO is a property interest subject to the statute of frauds, and the ROFO
here is oral, not written, it is unenforceable unless it falls within an exception to the
writing requirement. The Chahals assert they have alleged facts that trigger the “part
performance” exception to the statute based on the substantial improvements they made
to the property. This doctrine is a well-recognized exception to the statute of frauds as
applied to contracts for the sale or lease of real property. (Sutton v. Warner (1993) 12
Cal.App.4th 415, 422 (Sutton).) “‘Under the doctrine of part performance, the oral
agreement for the transfer of an interest in real property is enforced when the buyer has
taken possession of the property and either makes a full or partial payment of the
purchase price, or makes valuable and substantial improvements on the property, in
reliance on the oral agreement.’ [Citation.] Payment of the purchase price alone,
without the buyer obtaining possession or making substantial improvements to the
property, is not sufficient part performance to preclude application of the statute of
frauds. [Citation.] The part performance by the buyer must clearly relate to, and must be
pursuant to, the terms of the oral agreement. [Citations.] It is well recognized ‘that the
part performance doctrine rests on estoppel and virtual fraud rather than on livery of
seisin or on evidentiary considerations. [Citations.] Two distinct elements underlie
application of the part performance exception: ‘first, the extent to which the evidentiary
function of the statutory formalities [of the statute of frauds] is fulfilled by the conduct of
the parties; second, the reliance of the promisee, providing a compelling substantive basis
for relief in addition to the expectations created by the promise.”’” (Sutton, supra, 12
Cal.App.4th at p. 422, fn. omitted.)
       The Chahals’ claim fails on both elements. As the Sypraserts assert, the buyer’s
performance “must clearly and unequivocally relate to, and must be made pursuant to, the
terms of the oral agreement.” (1 Miller & Starr, Cal. Real Estate (3d ed. 2011), § 1:71,
p. 228; see also Baker v. Bouchard (1932) 122 Cal.App. 708, 711 [explaining that in
order to take a contract out of the statute of frauds, “the acts relied upon as establishing

                                              23.
part performance must be unequivocally referable to the contract[,]” and even if such acts
were “in truth done in performance of a contract,” if they “admit of an explanation
without supposing a contract, they do not generally constitute such part performance as to
remove the case from the operation of the statute.”].)
       Here, the alleged expenditures on improvements to the property can be fully
explained by the allegation that the Chahals obtained a long-term lease in order to reap
the benefits of such investments. Their actions, as alleged, are not inconsistent with their
status as long-term lessees or the Sypraserts’ ownership interest at the time. The Chahals
specifically alleged they required a 15-year lease to protect such investments, and that
their business income had increased as a result of such improvements. Thus, the FAC’s
allegations demonstrate the alleged improvements are completely consistent with the
Chahals’ long-term leasehold interest in the property and do not unequivocally relate to
the purported oral ROFO.
       Moreover, any reliance on the 2008 oral promise, whether characterized as a
ROFO or a promise to negotiate, was unreasonable as a matter of law. (Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [while the question of whether a
plaintiff’s reliance is reasonable is a question of fact, it may be decided as a matter of law
“‘if reasonable minds can come to only one conclusion based on the facts’”].) We agree
with the trial court’s finding that it would be “utterly unreasonable” to rely on the vague
and conditional statement that, if the Sypraserts decided to sell in the future, they would
sell to the Chahals, since there was no promise they would ever sell. Instead, the reliance
was on the 15-year lease term, “which would certainly amortize the expenditures.”
       Since the 2008 oral promise does not satisfy the statute of frauds, it is
unenforceable and cannot be the basis for the Chahals’ contract claims. This leaves the
alleged 2012 agreement to purchase the property. The FAC alleges that, in January 2012,
the Chahals orally accepted the Sypraserts’ oral offer to sell the property for $270,000;
the Sypraserts then opened an escrow, and the parties further agreed the Chahals would

                                             24.
satisfy their obligation through a $35,000 down payment and assumption of a $235,000
loan from Mid Valley secured by a first trust deed. The FAC alleges that various
attached exhibits were related to the escrow, which include escrow instructions signed by
the Chahals, but not the Sypraserts.
       An agreement to purchase real property is subject to the statute of frauds.
(§§ 1091, 1624, subd. (a)(3); Code Civ. Proc., § 1971.) Therefore, the alleged 2012
agreement for the sale of real property was required to be in writing signed by the party
to be charged, i.e. the Sypraserts. (§ 1624, subd. (a)(3).) There is no allegation in the
FAC that the Sypraserts signed anything, and the exhibits attached to the FAC do not
contain the Sypraserts’ signature. The Chahals assert that the allegation in the FAC that
they had entered into a “fully enforceable purchase agreement” pleads facts sufficient to
satisfy the statute of frauds. This allegation, however, is a legal conclusion, the truth of
which we do not assume. (Moore, supra, 51 Cal.3d at p. 125.) Instead, it is incumbent
on the Chahals to allege facts which show the statute of frauds has been satisfied or an
exception applies.
       The Chahals have not pled facts constituting a valid exception to the writing
requirement. The FAC alleges the Chahals fully performed the agreement by tendering
the purchase price. The payment of money, however, “‘is not “sufficient part
performance to take an oral agreement out of the statute of frauds” [citation], for the party
paying money “under an invalid contract . . . has an adequate remedy at law.”’” (Secrest
v. Security Nat. Mortg. Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555.)
       Furthermore, the exhibits attached to the FAC show the Chahals did not tender the
performance called for by them under the alleged contract. While the FAC alleges the
Chahals would assume financing of $235,000 from Mid Valley, and that Mid Valley
financially qualified the Chahals to assume the financing, the May 23 amendment to the
escrow instructions contradicts this claim. The May 23 amendment mandates the
execution of an all-inclusive promissory note to be secured by an all-inclusive deed of

                                             25.
trust, which would be taken subject to the pre-existing loan from Mid Valley to the
Sypraserts and “result in the existence of a creditor-debtor relationship” between the
Chahals and Sypraserts. This is contrary to both the Chahals obtaining a new loan and
assuming the existing loan. Instead, it shows that Chahals did not qualify for either.
          The Chahals assert the trial court exceeded its authority when it determined that
the May 23 amendment contradicted the allegations of the FAC. We disagree. “Under
the doctrine of truthful pleading, the courts ‘will not close their eyes to situations where a
complaint contains allegations of fact inconsistent with attached documents, or
allegations contrary to facts which are judicially noticed.’ [Citation.] ‘False allegations of
fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts
judicially noticed [citation], may be disregarded. . . .’” (Hoffman v. Smithwoods RV
Park, LLC (2009) 179 Cal.App.4th 390, 400.) The May 23 amendment shows that the
Chahals would not be obtaining a new loan or assuming the existing financing, and
expressly contradicts the allegation that the Chahals were to assume the existing loan.
Accordingly, we must rely on the amendment.
          In sum, the FAC does not allege the existence of an enforceable contract upon
which the Chahals’ claims for breach of contract and specific performance could be
based. Accordingly, the trial court properly sustained the demurrers to these causes of
action.
          The Remaining Causes of Action
          The only other causes of action the Chahals address in their opening brief are the
interference claims against the Dhaliwals and the fraud claims. With respect to the
interference claims, in an argument lasting precisely one sentence and without analysis or
citation to authority, the Chahals assert that “[t]here are two potential bases for the
interference: (1) interference with the ROFO, which obligated the Sypraserts to bring the
negotiation and (ripened) right of first refusal back to the Chahals[,] and (2) the purchase
agreement comprised of all the documents for the sale of the property.” As a

                                               26.
consequence of the Chahals’ affirmative burden to demonstrate reversible error based on
adequate legal argument (Yield Dynamics, Inc. v. TEA Systems Corp. (2007)
154 Cal.App.4th 547, 556-557), when points are perfunctorily raised, without adequate
analysis and authority, we pass them over and treat them as abandoned. (People v.
Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699-700.) We do so here.
       With respect to the fraud claims, the Chahals assert, again without citation to
authority or legal argument, that they adequately alleged fraud because (1) the ROFO
promised that the Sypraserts would refrain from selling to a third party during the term of
the lease without first offering the property to the Chahals, (2) a fraudulent
misrepresentation could have occurred because either (a) the Sypraserts never meant
what they said but merely offered the ROFO as a fraudulent inducement to convince
them to sign the lease and invest significant time and money into the property, or
(b) “somewhere along the line their intentions changed, but they let the Chahals continue
to act under false understanding of their true intentions[,]” i.e. while they told the Chahals
they were honoring the ROFO and would close escrow when Boualiene returned from
India, they instead “secretly” sold the property to the Dhaliwals; and (3) they suffered
present damages when they were deprived of the right to purchase the property, which
would have permitted them to operate the business in its current location indefinitely, and
it is unlikely their new landlords, the Dhaliwals, will negotiate additional lease
extensions.
       We decline to consider the Chahals’ contentions due to their failure to support
them with relevant legal authority and argument. The Chahals’ bare assertions that their
allegations sufficiently state a claim are wholly inadequate to satisfy their appellate
burden of showing reversible error. While the Chahals do make some legal arguments in
their reply brief with respect to the fraud claims, asserting that a fraud claim is not
necessarily nullified merely because the promise on which it is based is subject to the

                                             27.
statute of frauds, we do not consider arguments raised for the first time in a reply brief.
(Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106, fn. 6; Chicago Title Ins. Co. v. AMZ
Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428.)
       The Chahals do not make any arguments with respect to their other causes of
action. Since they have failed to demonstrate reversible error with respect to any of their
claims, we conclude the trial court did not err in sustaining the Sypraserts’ and
Dhaliwals’ demurrers in their entirety.
       Leave to Amend
       When a demurrer has been sustained properly and leave to amend the pleading has
been denied, “we decide whether there is a reasonable possibility that the defect can be
cured by amendment: if it can be, the trial court has abused its discretion and we reverse;
if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of
proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).)
       The Chahals contend the trial court abused its discretion in sustaining the
demurrers to the FAC without leave to amend. As noted above, it is their burden to show
how the complaint can be amended to state a cause of action. This showing, however,
need not be made to the trial court; the Chahals may make this showing for the first time
on appeal. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990)
222 Cal.App.3d 1371, 1386 (Careau); Code Civ. Proc., § 472c, subd. (a).) To meet this
burden, the Chahals must show in what manner the pleadings can be amended and how
such amendments will change the legal effect of their pleadings. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349; Careau, supra, 222 Cal.App.3d at p. 1388.) The assertion of
an abstract right to amend does not satisfy this burden. (McKelvey v. Boeing North
American, Inc. (1999) 74 Cal.App.4th 151, 161, superseded by statute on a different point
in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637, fn. 8.).) The
Chahals must set forth factual allegations that sufficiently state all required elements of a

                                             28.
cause of action. (McMartin v. Children’s Institute International (1989) 212 Cal.App.3d
1393, 1408.) Allegations must be factual and specific, not vague or conclusory. (Cooper
v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252, 1263-1264.) Where a plaintiff
offers no allegations to support the possibility of amendment, there is no basis for finding
the trial court abused its discretion when it sustained the demurrer without leave to
amend. (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992)
7 Cal.App.4th 1088, 1098; see HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513,
fn. 3.)
          Here, the Chahals make no attempt to explain how the FAC could be amended to
cure any defect and therefore fail to meet their appellate burden. They also argue the trial
court abused its discretion in sustaining the demurrers without leave to amend because in
so doing, the trial court deprived them of the opportunity to conduct discovery that would
provide further details, beyond those already alleged, regarding the oral promise and its
substantial performance. The Chahals, however, have not carried their burden to
demonstrate there is a reasonable possibility that such discovery would enable them to
properly state a cause of action. (See Blank, supra, 39 Cal.3d at p. 318.) Accordingly,
the trial court did not err in denying them leave to amend.
                                      DISPOSITION
          The judgment is affirmed. Costs on appeal are awarded to respondents.




                                             29.
                               _____________________
                                     Gomes, Acting P.J.
WE CONCUR:


 _____________________
Kane, J.


 _____________________
Detjen, J.




                         30.
