                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1384


HELMUT F. PORKERT,

                Plaintiff - Appellant,

           v.

CHEVRON CORPORATION, a Delaware corporation,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.    Sol Blatt, Jr., Senior District
Judge. (9:07-cv-03940-SB)


Argued:   December 8, 2011                 Decided:   January 12, 2012


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote        the
opinion, in which Judge Wilkinson and Judge King joined.


ARGUED: Sean Michael Bolchoz, HALE & BOLCHOZ, LLC, Hilton Head
Island, South Carolina, for Appellant.    Lewis Joseph Loveland,
Jr., KING & SPALDING, LLP, Atlanta, Georgia, for Appellee.    ON
BRIEF: Bryson M. Geer, NELSON MULLINS RILEY & SCARBOROUGH, LLP,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

        In this breach of contract action, we consider whether the

district court erred in granting summary judgment in favor of

the   defendant,     Chevron   Corporation       (Chevron),   on   a   complaint

filed by a former Chevron employee, Helmut Porkert, contesting

the expiration of certain stock options.                The issues presented

are: 1) whether the district court correctly determined that

Porkert     failed    to    exercise    his   stock     options    within      the

applicable time period; and 2) whether there were genuine issues

of material fact relating to Porkert’s employment agreement or

stock    option    grants   that     precluded    the   district   court    from

awarding    summary    judgment.       Upon   our   review,   we   affirm      the

district court’s judgment.



                                        I.

        Because this appeal arises from the district court’s award

of summary judgment, we present the facts in the light most

favorable    to    Porkert,    the    non-moving    party.     See     Henry    v.

Purnell, 652 F.3d 524, 527 (4th Cir. 2011) (en banc).                          The




                                        2
record before us shows 1 that Porkert and Chevron entered into

negotiations in 1999 to employ Porkert as Chevron’s new Chief

Procurement Officer.                In the negotiations with Porkert, Chevron

was represented by its former Vice Chairman, David O’Reilly, and

former Chief Financial Officer, Martin Klitten.                         Several draft

terms       of   employment         were    considered     by    the   parties,    which

covered      matters         such   as     Porkert’s    salary,    benefits,      signing

bonus, and stock options.

        From the outset of the negotiations, Porkert indicated that

because he was 59 years old, he would not accept a position that

required a lengthy period of employment before he became vested

in Chevron’s retirement plan.                   In May 1999, Porkert received a

letter from Chevron proposing certain terms of employment (the

May   1999       letter),      which       included    a   provision    regarding    his

eligibility            for    stock      options      under     Chevron’s   “Long-Term

Incentive Plan” (LTIP).                  With regard to stock options, the May

1999 letter provided:

                 IV.    Long-Term Incentive Plan

                 Non-qualified stock options and Performance
                 Units awarded annually to E-1s under the


        1
       In addition to certain documents in the record, the
parties largely rely on Porkert’s deposition testimony to
establish the facts underlying his claims.



                                               3
               terms of the Long-Term Incentive Plan. This
               amount may vary from year-to-year. In 1998,
               E-1s were awarded 8,000 non-qualified stock
               options   (ten    year   term)   and   1,700
               Performance Units.

(Emphasis added.)            Because Porkert did not agree to all the

terms of the May 1999 letter, the parties continued to negotiate

to find acceptable terms for Porkert’s employment.

     In June 1999, Klitten sent Porkert a letter by facsimile,

which was signed by O’Reilly on behalf of Chevron (June 1999

letter).        The   June   1999   letter     also   addressed   the   terms   of

Porkert’s employment, including his annual compensation, signing

bonus, benefits, terms of severance, and a provision regarding

his eligibility for stock options under the terms of the LTIP,

which    was    virtually     identical   to    the   stock   option    provision

contained in the May 1999 letter.                 Although Chevron contends

that the June 1999 letter embodied the final terms of Porkert’s

employment, we assume for summary judgment purposes, as argued

by Porkert, that the parties agreed upon the final terms of his

employment in a later agreement.

        Porkert testified that in a final version of his employment

agreement, later in June 1999, it was agreed that he would be

fully vested in the retirement plan after two years’ employment

with Chevron, and that he could exercise stock options for up to

ten years from the date he received them.                     Porkert did not

                                          4
receive a copy of this final written agreement, and neither the

agreement, nor any documentation relating to the agreement, is

contained in the record before us.

     Porkert       began   working       as       Chief    Procurement          Officer      of

Chevron on July 15, 1999.              In August 1999, he received a letter

from Chevron regarding his eligibility for stock option grants

under the LTIP (the August 1999 letter).                       The August 1999 letter

identified as attachments and enclosures the full plan documents

comprising the LTIP, and also provided a website link through

which     Porkert     could    obtain      access         to    the    plan     documents.

Porkert     testified      that     he     did       not       remember     reading         the

attachments or enclosures to the August 1999 letter, and that he

was preoccupied with his work at the time.

     The LTIP rules included a provision regarding the effect of

an employee’s retirement on the right to exercise vested stock

options.      In    addition      to    the       circumstance        of   an    employee’s

retirement,     the     provision        also      addressed       the     event       of    an

employee’s     termination,            death,       or     disability           (the        LTIP

termination    rule). 2       The      LTIP       termination      rule    provided,         in

relevant part, as follows:



     2
       A materially-identical provision was contained in the 2002
and later versions of the Chevron LTIP.


                                              5
               D.      Effect of Termination of Employment

               1.   Upon   termination   of  employment   for
               reasons other than death, Disability or
               termination   of   employment  at   or   after
               Eligibility for Retiree Welfare Benefits or
               at age 65 pursuant to the Corporation’s
               mandatory retirement policy, vested options
               may be exercised within three months from
               the date of termination (but in no case
               later than ten years from the date of
               grant).     However, if the optionee has
               engaged in Misconduct, all options are
               canceled   effective   as  of  the   time   of
               termination of employment.

(Emphasis added.)

        Porkert was 64 years old when he retired from Chevron, and

he    does     not    argue    that    his    employment       was   terminated        under

circumstances falling within the above exceptions to the LTIP

termination rule, namely, “death,” “[d]isability,” termination

after    “[e]ligibility         for     [r]etiree       [w]elfare        [b]enefits,”      or

termination “at age 65 pursuant to the Corporation’s mandatory

retirement          policy.”      As    a     result,    the      terms    of    the     LTIP

applicable to Porkert provided that Porkert’s “vested options

may     be     exercised       within       three   months        from     the    date     of

termination (but in no case later than ten years from the date

of grant).”

        From    1999    through       2004,    during      each    year    of    Porkert’s

employment at Chevron, he received annual stock option grants

under     the       LTIP.      Beginning       in   1999    through       2001,    Porkert

                                               6
accepted and signed each stock option grant, as required by the

terms    of   those   grants.   Porkert   also   accepted   stock   option

grants annually, from 2002 until 2004, even though these grants

did not require his signature.

     All stock option grants were subject to the LTIP and its

rules, and contained specific language to that effect.              While

Porkert understood that the LTIP and its rules were incorporated

into the stock option grants and were available upon request, he

did not read those documents because he “didn’t have time for

that.”

    Porkert worked as Chevron’s Chief Procurement Officer until

his retirement on February 15, 2005.         As of that date, almost

72,000 of Porkert’s 110,000 stock options were vested.          However,

Porkert did not attempt to exercise any of his options until May

2007.     At that time, he was informed that all 110,000 of his

stock options 3 had been cancelled by Chevron three months after

his retirement.



     3
       This figure excludes the stock options Porkert received as
a signing bonus that he was able to exercise in May 2007. The
stock option agreement under which these stock options were
granted expressly provided that “[a]t termination, the vested
shares under this Grant will be exercisable for the remainder of
the 10-year term.” The stock option agreements at issue in this
case do not include similar language.



                                    7
       After    attempting      to     resolve   this     issue   directly       with

Chevron, Porkert filed suit in a South Carolina state court,

asserting      claims   including      breach    of   contract    and    promissory

estoppel.       After Chevron filed a notice of removal, the case was

removed to the district court.

       In the district court, Chevron moved for summary judgment.

The district court requested additional briefing on the breach

of contract claim, but granted summary judgment to Chevron on

the remaining claims.          The district court later granted summary

judgment to Chevron on the breach of contract claim, holding

that Porkert failed to exercise his stock options within three

months of his retirement as required under the LTIP and its

rules.     The district court held that, even assuming Porkert and

Chevron reached an express employment agreement as described by

Porkert,    the     stock     option    grants    effectively     modified      that

original agreement because Porkert agreed to the terms of the

LTIP   incorporated      in    each    grant.     After    the    district      court

denied    his     request     for    reconsideration,      Porkert      filed   this

appeal.



                                         II.

       We review de novo the district court’s award of summary

judgment.       S.C. Green Party v. S.C. State Election Comm’n, 612

                                          8
F.3d 752, 755 (4th Cir. 2010).                         We view the facts, and all

reasonable inferences that may be drawn from those facts, in the

light most favorable to the non-moving party.                            Bonds v. Leavitt,

629   F.3d       369,      380    (4th    Cir.       2011).          Summary      judgment     is

appropriate       only      when    “there   is       no     genuine     issue     as   to    any

material fact and the movant is entitled to judgment as a matter

of law.”         Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

      We begin by considering the language of the termination

provision        to     determine        whether       the       LTIP    termination         rule

required that Porkert’s vested stock options be exercised within

three     months      of    his    retirement.             As    set    forth     above,     this

termination rule stated that “vested options may be exercised

within three months from the date of termination (but in no case

later     than    ten      years   from    the       date       of   grant).” 4      (Emphasis

added.)      Porkert argues that the word “may” in this provision is

used as a “permissive term,” rather than as a “mandatory term.”

He further contends that this language in the LTIP termination



      4
       The termination rule included in the LTIP terms in 2002
and later years similarly provided that under such circumstances
of termination, “vested Stock Options may be exercised within 90
days from the date of termination (but in no case later than ten
years from the date of grant).” (Emphasis added.)



                                                 9
rule was ambiguous and, therefore, should have been construed

against the drafter, Chevron, to the effect that vested stock

options could have been exercised outside the stated three-month

window.   We disagree with this argument.

     Under   California     law, 5   the   interpretation   of   a   contract

presents an issue of law when the language of the contract is

unambiguous.   See F.B.T. Prods., LLC v. Aftermath Records, 621

F.3d 958, 963-64 (9th Cir. 2010) (citing City of Hope Nat’l Med.

Ctr. v. Genentech, Inc., 181 P.3d 142, 156 (Cal. 2008)).                   Any

interpretation of a contract that effectively reads a word or

clause out of the contract must be avoided whenever possible.

See Cal. Civ. Code § 1641.           Courts interpreting a contract are

instructed to “give significance to every word of a contract,

when possible, and [to] avoid an interpretation that renders a

word surplusage.”    In re Tobacco Cases I, 111 Cal. Rptr. 3d 313,

318 (Cal. Ct. App. 2010); see also Transp. Guar. Co. v. Jellins,

174 P.2d 625, 628 (Cal. 1946).

     We   conclude   that   Porkert’s      proposed   construction    of   the

LTIP termination rule, permitting stock options to be exercised


     5
       The parties do not dispute that California law governs
issues concerning the existence, modification, or interpretation
of the LTIP, its rules, and all stock option agreements at issue
in this case.



                                      10
both within three months of his date of termination as well as

outside that three-month window, would render the clause mere

surplusage.       Thus, we decline to give this contractual language

such an implausible interpretation.             To the extent that Porkert

sought    to   exercise     his    vested    stock   options      following     the

termination of his employment, the plain language of the LTIP

termination rule required that it be done “within three months

from the date of termination (but in no case later than ten

years from the date of grant).” 6

     We    next    consider      Porkert’s    contention    that      there    were

genuine issues of material fact relating to the terms of his

final employment agreement, which precluded the district court

from granting summary judgment to Chevron.                Porkert argues that

irrespective      whether   the    LTIP     termination    rule    applied,     the

final version of his employment agreement provided that he would

become    fully    vested   in    Chevron’s    retirement      plan    after   two

years’ employment, and could exercise his stock options for up

to ten years after issuance regardless of his retirement date.



     6
       The use of the word “may” in the LTIP termination rule is
permissive to the extent that Porkert was not required to
exercise his stock options, but could have let them lapse after
termination of his employment if, for example, he found it
financially impracticable to exercise them.



                                       11
       In     considering       this     argument,            we     reiterate       that    the

district court assumed the veracity and accuracy of Porkert’s

alleged      final    employment       agreement         in    reaching        its    decision.

We    likewise       accord     Porkert’s       allegations            this    same     status.

Thus, Porkert’s arguments concerning the terms of his employment

agreement do not, without more, raise any issue of material fact

that     would      preclude        summary    judgment,             because    those       facts

already have been viewed in Porkert’s favor.

       We therefore turn to address the district court’s analysis

whether       the     stock      option       grants           under     the     LTIP        were

modifications of Porkert’s final employment agreement.                                  Porkert

argues that         the   issues      whether      the    stock       option     grants      were

modifications        of   his    final    employment           agreement,        and    whether

adequate      consideration         supported       any       such    modifications,         were

issues of material fact that should have been submitted to a

jury.       Porkert also contends that the stock option grants could

not    have    modified       his    final    employment           agreement,        because    a

valid    modification         requires    several         contractual          elements      that

were lacking in this case.                First, according to Porkert, there

was no “meeting of the minds” regarding the particular LTIP term

that    vested      stock     options    had       to    be    exercised       within       three

months       of     his     retirement        because,          under     his        employment

agreement, he was allowed ten years to exercise vested stock

                                              12
options.         Second,         Porkert       argues         that     the      adequacy     of

consideration       presented         a    question      of     material      fact   for    the

jury.      Third,    Porkert       contends         that      because    he     already     was

entitled to receive stock options under his final employment

agreement,     his    later        receipt         of    stock       options      could     not

constitute “new consideration” supporting a modification.

    We     address     each       of       Porkert’s       arguments       in    turn     under

applicable principles of California law.                         Under California law,

a written contract may be modified by another written contract.

Cal. Civ. Code § 1698(a).                   The valid modification of a written

contract     must    satisfy          the    same       criteria       essential     to    the

formation     of     the     original         contract,          including        offer     and

acceptance, or mutual assent, and adequate consideration.                                  See

Am. Bldg. Maint. Co. v. Indem. Ins. Co. of N. Am., 7 P.2d 305,

307 (Cal. 1932).           California law does not require that a court

weigh “the quantum of benefit received by a promisor or of the

detriment    suffered       by    a       promisee      where    the    consideration        is

plainly substantial.”             Winkelman v. City of Tiburon, 108 Cal.

Rptr. 415, 422 (Cal. Ct. App. 1973).                      Further, in the context of

stock   option      agreements,           California       law    provides       that     “[i]n

cases involving employee benefits, such as pension plans and

stock options, the rule has developed that the offer of such

bonuses constitutes an offer for a unilateral contract, which is

                                              13
accepted     if   the    employee     continues    in    employment     after   the

offer.”      DiGiacinto v. Ameriko-Omserv Corp., 69 Cal. Rptr. 2d

300, 303 (Cal. Ct. App. 1997) (emphasis added).                       Simply put,

“[c]onsideration is inherent where stock options are granted to

employees and the employee continues employment knowing of the

options.”     Id. at 303-04 (quoting Newberger v. Rifkind, 104 Cal.

Rptr. 663, 665 (Cal. Ct. App. 1972)).                   In some instances, the

adequacy of consideration may be a question of fact for the

jury, but when the facts underlying the purported consideration

are uncontested, a court may find consideration adequate as a

matter of law.       See In re Southland Supply, Inc., 657 F.2d 1076,

1081 (9th Cir. 1981); Garcia v. World Savings, FSB, 107 Cal.

Rptr. 3d 683, 690-91 (Cal. Ct. App. 2010).

      We find no merit in Porkert’s contention that the parties

did not reach a “meeting of the minds” regarding the particular

LTIP term that his vested stock options had to be exercised

within three months of his retirement.                    Porkert unequivocally

accepted each stock option grant on an annual basis from 1999

until 2004, and did so knowing that each grant was expressly

governed by the LTIP terms and rules.                    Indeed, Porkert admits

that he “naturally assumed” that his stock options were issued

pursuant to the LTIP.            At all times relevant to this dispute,

the   LTIP   terms      and   rules   required    that    in   the   circumstances

                                         14
under which Porkert left Chevron’s employ, Porkert was required

to exercise his vested stock options within the lesser of three

months from the date of termination, or ten years from the date

the options were granted.           Thus, in effect, Porkert’s argument

that the parties did not reach a “meeting of the minds” is based

on nothing more than the fact that Porkert did not read the LTIP

terms that governed his stock option grants.                    Manifestly, “one

who     assents   to    a   contract   is     bound   by     its    provisions,”

irrespective whether one reads them.                Madden v. Kaiser Found.

Hosps., 552 P.2d 1178, 1185 (Cal. 1976).

       Second,    we   reject   Porkert’s     argument     that    the    issue   of

adequacy of consideration presented a genuine issue of material

fact.       There is no dispute that, from 1999 until 2004, Porkert

annually accepted each stock option grant subject to the terms

of the LTIP, that he understood the grants were governed by the

terms of the LTIP, and that he continued his employment with

Chevron knowing of such grants.             Thus, under California law, we

may determine the adequacy of consideration as a matter of law.

See In re Southland Supply, 657 F.2d at 1081; Garcia, 107 Cal.

Rptr. 3d at 690-91.

       Third, we find no merit in Porkert’s argument that because

he    was   entitled   to   stock   options    as   part   of     his    employment

contract with Chevron, the stock option grants were not “new

                                       15
consideration”     sufficient     to    support       the      modification    of    a

contract.    As we already have stated, in cases of stock options,

the rule in California is that consideration is inherent when

stock options are granted to an employee who continues in that

employment    with     knowledge       of      that    stock       option     grant.

DiGiacinto, 69 Cal. Rptr. 2d at 303.                   Thus, because Porkert

unambiguously      accepted    grants       for   specific       and    substantial

numbers of stock options knowing that they were governed by the

LTIP, and because Porkert continued his employment with Chevron

thereafter, he cannot argue that the stock option grants lacked

the   consideration     necessary      to     modify     his    prior    employment

agreement.       See id.      Accordingly, we conclude that the stock

option grants modified any prior agreement to the contrary, and

that Porkert only was permitted to exercise his stock options

within three months of his retirement date.

      Finally,    we   disagree   with       Porkert’s      contention      that    the

district court erred in granting summary judgment to Chevron on

his promissory estoppel claim.               Under California law, when the

parties have entered into a written contract, a claim arising

under it is one for breach of contract and may not be asserted

on the separate ground of promissory estoppel.                         See Kliff v.

Hewlett Packard Co., Inc., 318 F. App’x 472, 477 (9th Cir. 2008)

(citing Youngman v. Nevada Irr. Dist., 449 P.2d 462, 469 (Cal.

                                        16
1969)).     Pursuant to Porkert’s testimony and his argument before

the district court, he entered into a final written employment

agreement    with   Chevron   in   June    1999,   which   established   the

contractual rights he asks us to enforce on appeal.             Therefore,

because Porkert claims that Chevron breached a written contract,

his claim of promissory estoppel based on those same contractual

terms is barred under California law, and the district court did

not err in granting summary judgment in favor of Chevron on the

promissory estoppel claim. 7        Accord Kajima/Ray       Wilson v. Los

Angeles Cnty. Metro. Transp. Auth., 1 P.3d 63, 69 (Cal. 2000)

(promissory estoppel developed for circumstances when “a party

lacking contractual protection relied on another’s promise to

its detriment”).

                                    III.

     For these reasons, we affirm the district court’s judgment.



                                                                  AFFIRMED



     7
       Although the district court disposed of the promissory
estoppel claim on the different ground that Porkert had not
shown the reasonable reliance element of promissory estoppel,
the district court’s analysis does not alter the result we reach
here. See Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996)
(en banc) (district court judgment may be affirmed on other
grounds).



                                     17
