Filed 7/14/14 Jones v. Turnage CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


RON JONES,
         Plaintiff and Appellant,
                                                                     A139533
v.
WAYNE TURNAGE,                                                       (Solano County
                                                                     Super. Ct. No. FCS039801)
         Defendant and Respondent.


         Ron Jones appeals from a judgment dismissing his breach of contract and
negligence action against Wayne Turnage. The trial court sustained a demurrer to
Jones’s second amended complaint (SAC), without leave to amend, on the grounds the
breach of contract action was barred by the statute of frauds (Civ. Code, § 1624)1 and
insufficient facts had been alleged to state a negligence cause of action. We affirm.
                         I.        FACTUAL AND PROCEDURAL BACKGROUND
         So far as we can discern from the convoluted allegations of Jones’s operative
pleading, aided by the documents he has referenced, the material facts are as follows:
         Wayne and Carol Turnage2 owned Universal Environmental, Inc. (U.E.): an
environmental cleanup company, for whom Jones worked at various times, beginning in


         1   All further undesignated statutory references are to the Civil Code.
         Wayne’s ex-wife, Carol Turnage, was also named as a defendant in Jones’s suit.
         2
Because Wayne and Carol share the same last name, we refer to each by first name only.
No disrespect is intended. Carol answered the operative complaint and is not involved in
this appeal.


                                                             1
1981. In 1984, to induce Jones to return to employment in California, Wayne
volunteered to help Jones buy a home. Wayne located a property in Fairfield, and they
agreed to split the down payment, mortgage payments, and costs of repair. Title to the
property in Fairfield was to be held by Wayne alone, but Jones was to live there. Wayne
and Jones would split any profit from sale. In 1985, Jones and Wayne entered into a
similar agreement with respect to real property at 8289 Shadi Lane in Winters (the
Winters Property). They would split the mortgage and down payments, each would own
50 percent of the Winters Property, but title was to be taken only in Wayne’s name.
Unbeknownst to Jones, title was actually “held jointly and equally by Carol and Wayne.”
       In 1990, U.E. was sold and bonuses were awarded to upper level management
employees. Wayne agreed to give Jones Wayne’s 50 percent of the Winters Property in
lieu of a cash bonus. However, Jones and Wayne agreed that “title was to remain
temporarily in Wayne’s name so Wayne could use its value for loans if needed.” In
1997, Carol quit claimed her community property interest to Wayne. In 2000, during
dissolution proceedings, Carol reasserted her community property interest in the Winters
Property. In 2003, Jones sued Carol and Wayne to quiet title.
       The parties settled Jones’s quiet title action in June 2007, and “[t]he terms of the
settlement between the parties included: (i) Jones was to pay Carol $350,000 for the
[Winters Property] in the form of a $75,000 down payment and a loan secured by a deed
of trust. Interest during the 1st three (3) years on the balance due of $275,000 at five
percent (5%) per annum and eight percent (8%) per annum in a one year extension if
needed; (ii) Wayne was to deed his 50% share of title to Jones without further
consideration; (iii) Carol was to grant her 50% titled interest to Jones; (iv) Title was to be
clear. [¶] . . . On 4/17/2007, Wayne grant deeded his 50% titled interest in [the Winters
Property] to Jones; in April 2007 Jones took out a loan for $75,000 and paid the required
down payment; on 4/17/2007 Jones signed a Straight Note to Carol for the $275,000
balance due[,] . . . Carol executed a deed of trust to Jones[,] who thereby became the fully
titled owner of [the Winters Property].”



                                              2
       Jones attaches to his SAC, as an exhibit, a document titled “Settlement
Agreement,” which was filed in Solano County Superior Court on June 14, 2007. The
Settlement Agreement provides in relevant part: “[Wayne] is dismissed from this case as
he has deeded his interest in the [Winters Property] to [Jones.] [¶] . . . [¶] [Jones] will
purchase the interest of [Carol] in the [Winters Property] for the sum of $350,000. Said
sum shall be paid as follows: [¶] a. [Jones] will pay the sum of $75,000 within sixty (60)
days by taking out a new loan in that amount. [Carol] shall submit a deed in favor of
[Jones] through the escrow for that loan. [¶] b. The balance of the $275,000 shall be due
and payable in three years with interest at five percent (5%) per annum until paid. [¶] . . .
[¶] e. [Carol] shall execute a grant deed in favor of [Jones] and [Jones] shall execute a
note and deed of trust in favor of [Carol], for the sum of $275,000 plus interest as stated
above. [Carol] agrees this note and deed of trust shall be in second position to any note
and deed of trust [Jones] executes to secure the initial payment of $75,000 noted above.
[¶] . . . [¶] [Wayne] and [Carol] agree that this settlement removes this property from any
further consideration in their dissolution of marriage proceedings.” (Italics added.) The
Settlement Agreement is signed by Jones, Wayne, Carol, and their respective attorneys.
       In 2010, Jones attempted to take out a loan secured by the Winters Property “in
order to pay off his note to Carol.” However, he was unable to obtain a loan “because
Winchester Mortgage Co. held an active lien on [the Winters Property] against Wayne
and Carol.” That same year, Wayne paid Jones $125,000, purportedly for the down-
payment made by Jones on the Winters Property plus accumulated interest on the note to
Carol. In late 2011, Jones was informed by Carol that foreclosure for nonpayment on the
note was in process. Jones told Wayne that “Wayne needed to take care of it.” Wayne
refused to make any further payments. Ultimately, Carol foreclosed on the Winters
Property.
       Jones’s SAC attempts to state breach of contract, negligent misrepresentation, and
negligence causes of action.3 In his breach of contract cause of action, Jones alleges:


       3   Jones has abandoned his negligent misrepresentation cause of action on appeal.


                                               3
“Wayne promised to satisfy all [Jones’s] monetary obligations to Carol under the Straight
Note. Wayne has not done so, thereby defaulting in performance on his part of the
bargain.” Jones also alleges: “Writings establishing an express contract between Wayne
and Carol . . . and [Jones] exist. . . . [T]he contract must be considered in light of the
circumstances under which it was made, especially with respect to Wayne’s originally
offering full title to Jones without additional consideration from Jones following Wayne
and Carol’s sale of U.E. [¶] . . . [¶] Those stated circumstances include both: (i) the terms
of the Settlement Agreement of June 14, 2007 . . . and (ii) that as an-lieu [sic] of the
bonus otherwise offered to Jones by Wayne and Carol after Wayne and Carol had sold
U.E. in 1990; (iii) Jones was to receive clear title to the [Winters Property] . . . . [¶] . . .
The writing between Jones and both Wayne and Carol . . . establish[es] the following:
(i) Jones was to make a specified down payment and sign a Straight Note to Carol for the
balance; the interest rate and time period for payment for the property were specified in
the note and agreed upon between the parties; (ii) Carol was to Convey her 50% titled
interest in [the Winters Property] to Jones via a Deed of Trust; (iii) Wayne was to deed
his 50% titled interest in [the Winters Property] without further consideration[,] within
the allotted repayment period of Jones’s note to Carol; (c) Performance: (i) Wayne
deeded his titled interest to Jones; (ii) Jones made his down payment to Carol and
executed a note to Carol for the balance due under the agreement; (iii) Carol gave title of
her 50% interest in [the Winters Property] to Jones in a Deed of Trust; (iv) As a
precondition that led to the written settlement agreement[,] Wayne agreed to provide
Jones with funds sufficient to totally clear the note to Carol so that Jones would be made
whole and none of his resources would be used to pay; (iv) Evidence of this lies in the
fact that Wayne paid Jones $125,000 in partial payment of his responsibility under that
precondition to the written agreement; subsequently Wayne refused to pay the balance to
[Jones] when [Jones] requested Wayne to do so.” (Boldface & underlining omitted.)
       As the basis for his negligence cause of action, Jones alleges that, beginning in
1997 or 1998, Wayne stored hazardous wastes, which leaked or spilled, at the Winters
Property. Jones further contends: “A legal duty was owed by Wayne to Jones on the


                                                 4
basis of the express contract made between the parties. [¶] . . . A major part of that duty
was to avoid acts that would jeopardize the value of their commonly owned property . . . .
[¶] . . . Wayne’s storing hazardous waste materials on [the Winters Property] constituted
a breach of the duty Wayne owed to Jones who was a co-owner of the property and
member of the class of parties for whom the hazardous waste regulations of the state of
CA were enacted. [¶] . . . [¶] . . . Jones would have faced difficulty in getting a loan
because of the costs involved in decontaminating the polluted areas. [¶] . . . Eventually,
after she had foreclosed against Jones, Carol had all hazardous waste contaminated areas
decontaminated.” (Italics added.)
       Wayne filed a demurrer, contending that the Settlement Agreement contradicted
Jones’s contract allegations and that any oral agreement was unenforceable under the
statute of frauds. With respect to the negligence cause of action, Wayne argued that
Jones had failed to allege a duty or damage.
       The trial court agreed that Jones’s allegations were insufficient to state a cause of
action and sustained the demurrer without leave to amend. The court explained:
“[Jones’s] first cause of action for breach of contract fails to state adequate facts
supporting the cause of action. [Jones] refers to the existence of ‘[w]ritings establishing
an express contract between [Wayne, Carol, and Jones], specifically identified as the
settlement agreement dated June 14, 2007 attached as Exhibit 1 of the complaint, and
claims that the contract was breached when [Wayne] failed ‘to satisfy all [Jones’s]
monetary obligations to Carol under the Straight Note.’ . . . The settlement agreement
attached to the [SAC] contains no terms or duties requiring [Wayne] to pay [Jones’s] debt
to [Carol]. It merely acknowledges that, having already deeded his interest in the
property to [Jones], [Wayne] was dismissed from [Jones’s] prior action. . . . Therefore,
[Jones’s] breach of contract claim can only be understood as being based on some oral
agreement for [Wayne] to pay [Jones’s] debt to another, which is subject to the statute of
frauds. [¶] [Jones’s] sole allegation attempting to plead around the statute of frauds is that
[Wayne] ‘paid Jones $125,000 in partial payment of his responsibility under that
precondition to the written agreement.’ . . . The payment of money to [Jones] by [Wayne]


                                               5
at some unspecified date after the execution of the 2007 settlement agreement does not
clearly relate to the terms of the agreement and does not satisfy the evidentiary function
of the statute of frauds. In addition, [Jones] fails to allege how he might have
substantially changed his position in reliance on the alleged oral agreement such that he
suffered some unjust and unconscionable loss. [¶] . . . [¶] . . . [Jones’s] claim of the
existence of some duty owed by [Wayne] to [Jones] to refrain from storing the
‘hazardous waste’ or from reducing the value of the property relies entirely on [Jones’s]
unenforceable oral agreements for the conveyance of the property to [Jones.] . . . In any
case, [Jones] fails to allege that there was any agreement between the parties prohibiting
[Wayne] from storing the alleged ‘hazardous waste’ on the real property or that [Wayne]
owed some other statutory or common law duty to [Wayne] to refrain from storing the
‘hazardous waste’ on the property.” A judgment of dismissal was entered. Jones filed a
timely notice of appeal.
                                     II.    DISCUSSION
       On appeal, Jones argues that his SAC is sufficient to state causes of action for both
breach of contract and negligence. He also maintains that the trial court abused its
discretion by denying leave to amend. His arguments are without merit.
A.     Standard of Review
       “On appeal from an order of dismissal after an order sustaining a demurrer, the
standard of review is de novo: we exercise our independent judgment about whether the
complaint states a cause of action as a matter of law. [Citation.] First, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in their context.
Next, we treat the demurrer as admitting all material facts properly pleaded. Then we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or
conclusions of law. [Citation.]” (Stearn v. County of San Bernardino (2009)
170 Cal.App.4th 434, 439–440.) We are “not bound by the trial court’s construction of
the complaint . . . .” (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)



                                               6
Rather, we independently evaluate the complaint, construing it liberally. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
       “[T]he plaintiff bears the burden of demonstrating that the trial court erred.
[Citation.] . . . [¶] To establish that he adequately pleaded even one of his causes of
action, [the plaintiff] must show that he pleaded facts sufficient to establish every element
of that cause of action. [Citation.] Thus, if the defendants negate any essential element
of a particular cause of action, this court should sustain the demurrer to that cause of
action. [Citation.] As a consequence, [the plaintiff] bears the burden of overcoming all
of the legal grounds on which the trial court sustained the demurrers . . . .” (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880, italics & fns. omitted.)
“[W]e are not limited to the grounds specified by the trial court for sustaining the
demurrer. [Citation.] . . . ‘[It] is the validity of the court’s action, and not the reason for
its action, which is reviewable.’ [Citation.]” (Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1190.) “If another proper ground for sustaining
the demurrer exists, this court will still affirm the demurrer[] even if the trial court relied
on an improper ground, whether or not the defendants asserted the proper ground in the
trial court. [Citation.]” (Cantu, at p. 880, fn. 10.)
       On appeal from a demurrer we search the facts to see if they make out a claim for
relief under any theory, regardless of whether the theory was raised before the trial court.
(Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629–630.)
“This consideration of facts includes those evidentiary facts found in recitals of exhibits
attached to a complaint. [Citation.]” (Satten v. Webb (2002) 99 Cal.App.4th 365, 375.)
“If the allegations in the complaint conflict with the exhibits, we rely on and accept as
true the contents of the exhibits. However, in doing so, if the exhibits are ambiguous and
can be construed in the manner suggested by plaintiff, then we must accept the
construction offered by plaintiff. [Citations.]” (SC Manufactured Homes, Inc. v. Liebert
(2008) 162 Cal.App.4th 68, 83.)




                                               7
B.     Breach of Contract
       In his breach of contract cause of action, Jones alleges that Wayne breached the
Settlement Agreement by refusing to “provide Jones with funds sufficient to totally clear
the note to Carol.”
       Jones contends that the trial court erred in concluding that the contract was
unenforceable under the statute of frauds. Specifically, he argues: “The [trial] court
misapplied the Statute of Frauds, first finding application and secondly in not finding an
exception.” The statute of frauds provides, in relevant part: “The following contracts are
invalid, unless they, or some note or memorandum thereof, are in writing and subscribed
by the party to be charged or by the party’s agent: [¶] (1) An agreement that by its terms
is not to be performed within a year from the making thereof. [¶] (2) A special promise to
answer for the debt, default, or miscarriage of another, except in the cases provided for in
Section 2794. [¶] (3) An agreement for the leasing for a longer period than one year, or
for the sale of real property, or of an interest therein . . . .” (§ 1624, subd. (a).)
       The trial court focused its attention on section 1624, subdivision (a)(2). “A special
promise to answer for the debt, default, or miscarriage of another” is invalid unless it is in
writing and subscribed by the party to be charged. (§ 1624, subd. (a)(2).) Jones takes
issue with the court’s characterization of his claim “as being based on some oral
agreement for [Wayne] to pay [Jones’s] debt to another.” Jones maintains: “Wayne was
not paying Jones’ debt to Carol. Wayne’s payments were to be made to Jones and Jones
alone.”
       It is true that “there is not a contract to answer for the debt of another within the
statute of frauds where the alleged guarantor promises the debtor, rather than the creditor
to pay the former’s debt.” (King v. Smith (1948) 33 Cal.2d 71, 74.) And, although
Jones’s SAC is somewhat confusing and ambiguous, Jones alleges that “Wayne agreed to
provide Jones with funds sufficient to totally clear the note to Carol so that Jones would
be made whole and none of his resources would be used . . . .” (Italics added.) However,
we are not bound by the trial court’s reasoning.



                                                8
       The statute of frauds also applies to “[a]n agreement for the . . . sale of real
property, or of an interest therein.” (§ 1624, subd. (a)(3).) With respect to section 1624,
subdivision (a)(3), Jones only submits, “One can argue that once Wayne deeded his
interest in the Winters property to Jones, the agreement no longer involved real estate.”
This argument is flatly contradicted by the Settlement Agreement itself. Although the
Settlement Agreement used the past tense to indicate that Wayne had already “deeded his
interest in the [Winters Property] to [Jones],” it also provided that Jones would “purchase
the interest of [Carol], in the [Winters Property] for the sum of $350,000.” Clearly, the
Settlement Agreement was “[a]n agreement for the . . . sale of real property, or of an
interest therein.” (§ 1624, subd. (a)(3).)
       In order to satisfy the statute of frauds, a writing must state, with reasonable
certainty, (1) each party to the contract; (2) the subject matter of the contract; and (3) the
terms and conditions of all the promises constituting the contract. (Rivers v. Beadle
(1960) 183 Cal.App.2d 691, 696.) Jones alleges that Wayne breached the written
Settlement Agreement. But, the Settlement Agreement contained no reference to
Wayne’s purported promise to pay the $350,000 Jones was to pay to Carol. The promise
is therefore unenforceable under the statute of frauds. (See Casa Herrera, Inc. v.
Beydoun (2004) 32 Cal.4th 336, 345 [“[t]he statute of frauds ‘demands that every
material term of an agreement within its provisions be reduced to written form, whether
the parties desire to do so or not’ ”]; Lombardo v. Santa Monica Young Men’s Christian
Assn. (1985) 169 Cal.App.3d 529, 539 [“[w]here a writing discloses no promise or
agreement and cannot be made clear as to its significance without resort to parol
evidence, it is inadequate to satisfy the statute of frauds”]; Rivers, at p. 695 [“[t]he statute
of frauds . . . requires that the writing evidence the contract exclusively”].) Jones has not
met his burden to show that the statute of frauds is inapplicable.4



       4 We need not reach Wayne’s contention that the Settlement Agreement is also
unenforceable because it is a contract “not to be performed within a year.” (§ 1624,
subd. (a)(1).)


                                               9
       Instead, Jones contends that “Wayne’s execution of a deed and payment of
[$125,000] was sufficient partial performance on . . . Wayne’s part, to be an exception to
the Statute of Frauds.” “[The statute of fraud’s] requirement of a basic writing is subject
to an implied exception for ‘part performance’ of the contract’s terms.” (In re Marriage
of Benson (2005) 36 Cal.4th 1096, 1100.) “[T]o constitute part performance, the relevant
acts either must ‘unequivocally refer[]’ to the contract [citation], or ‘clearly relate’ to its
terms. [Citations.] Such conduct satisfies the evidentiary function of the statute of frauds
by confirming that a bargain was in fact reached. [Citation.]” (Id. at p. 1109.) Jones’s
argument fails because the mere payment of money is not sufficient part performance to
take an oral agreement out of the statute of frauds.5 (Secrest v. Security National
Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555; Anderson v. Stansbury
(1952) 38 Cal.2d 707, 715–716; Francis v. Colendich (1961) 193 Cal.App.2d 128, 131;
Maddox v. Rainoldi (1958) 163 Cal.App.2d 384, 389.)
       Next, Jones contends that his reliance—in the form of dismissing his quiet title
action—estopped application of the statute of frauds because otherwise “unconscionable
injury would result.” “The doctrine of estoppel to assert the statute of frauds has been
consistently applied by the courts of this state to prevent fraud that would result from
refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the
unconscionable injury that would result from denying enforcement of the contract after
one party has been induced by the other seriously to change his position in reliance on the
contract [citations], or in the unjust enrichment that would result if a party who has
received the benefits of the other’s performance were allowed to rely upon the statute.
[Citations.] In many cases both elements are present. Thus not only may one party have
so seriously changed his position in reliance upon, or in performance of, the contract that
he would suffer an unconscionable injury if it were not enforced, but the other may have


       5The cases relied on by Jones are not inconsistent with this rule. (Nesson v. Moes
(1963) 215 Cal.App.2d 655 [plaintiff performed by providing services to defendant in
medical practice]; Dean v. Davis (1946) 73 Cal.App.2d 166 [plaintiff performed by
securing employment for defendant].)


                                               10
reaped the benefits of the contract so that he would be unjustly enriched if he could
escape its obligations.” (Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623–624.)
        “First, equitable estoppel may apply where the promisor had induced the promisee
to make a serious change of position in reliance on the oral agreement, commonly known
as ‘detrimental reliance,’ and a failure to enforce the oral agreement would have caused
an unconscionable injury to the promisee. Alternatively, equitable estoppel may apply
where the promisor would be unjustly enriched by receiving the benefit of the promisee’s
performance if the promisor were allowed to invoke the statute of frauds.” (Estate of
Housley (1997) 56 Cal.App.4th 342, 351.) “Before a party can be estopped to assert the
statute due to the other’s part performance, it must appear that a sufficient change of
position has occurred so that the application of the statutory bar would result in an unjust
and unconscionable loss, amounting in effect to a fraud. [Citations.]” (Anderson v.
Stansbury, supra, 38 Cal. 2d at p. 715.) Estoppel to assert the statute of frauds will not
arise unless the unconscionable injury or unjust enrichment goes beyond mere monetary
loss or loss of the benefit of the contractual bargain. (Estate of Baglione (1966)
65 Cal.2d 192, 197–198.) “Whether or not the elements of estoppel exist depends on the
particular factual context. [Citation.]” (Ward v. Wrixon (1959) 168 Cal.App.2d 642,
655.)
        Jones maintains, in his opening brief, that he dismissed his quiet title action and
promised to pay Carol $350,000 in reliance on Wayne’s oral promise.6 However, his
allegations in the SAC are not so clear. In fact, Jones alleges that in 2010 he “attempted
to take out a loan on the property in order to pay off his note to Carol.” It was not until
2011 that Wayne refused to “take care of” payments on the note to Carol. Jones does not




        6
        Jones also refers to improvements he made to the Winters Property. However,
Jones did not allege in his SAC that he made improvements in reliance on Wayne’s
promise to pay him $350,000. The record suggests that the improvements were made
between 1986 and 1990 and, therefore, could not have been made in reliance on Wayne’s
2007 promise.


                                              11
explain why he attempted to obtain a loan from a third party, if he had relied on Wayne’s
promise to provide the funds.
       Jones’s reliance on Monarco v. Lo Greco, supra, 35 Cal.2d 621 is misplaced. In
Monarco, estoppel was shown when decades of labor on a family farm was performed
without wages in reliance on an oral agreement to leave property by will. (Id. at pp. 623–
627.) Here, unlike in Monarco, Jones has merely alleged that he lost the benefit of the
bargain from the unenforceable contract. Jones has not alleged unconscionable injury or
unjust enrichment. The trial court did not err in concluding that Jones had failed to allege
facts sufficient to state a breach of contract cause of action.
C.     Negligence
       The “ ‘well-known elements of any negligence cause of action [are] duty, breach
of duty, proximate cause, and damages.’ [Citation.]” (Lockheed Martin Corp. v.
Superior Court (2003) 29 Cal.4th 1096, 1106, fn. omitted.) In his SAC, Jones alleges
that Wayne’s storage of hazardous waste on the Winters Property fell below the standard
of care expected of a co-owner of real property. However, Jones also alleges that, after
Carol foreclosed, she paid for decontamination. Jones attempts to plead damages by
asserting he “would have faced difficulty in getting a loan because of the costs involved
in decontaminating the polluted areas.” (Italics added.) Jones essentially concedes that
he has suffered no actual damage as a result of the hazardous waste storage. The trial
court did not err in concluding that Jones had failed to allege facts sufficient to state a
negligence cause of action.
D.     Leave to Amend
       “[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the
plaintiff shows there is a reasonable possibility any defect identified by the defendant can
be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 967.) “The plaintiff has the burden of proving that an amendment would cure the
defect. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Jones argues that he should have been granted leave to amend because “deficiencies [in
his damages allegations] are curable,” “[a] third amended complaint could emphasize the


                                              12
independence of the obligations to [Wayne and Carol],” and because he could “clarify the
dismissal of the Quiet Title action and the additional reliance.” Beyond these conclusory
assertions, Jones does not explain how the trial court abused its discretion in denying
leave to amend. In his opposition to the demurrer below, Jones stated that “[a] draft
Amendment . . . of the [SAC] is provided for the court’s review . . . .” However, no
proposed amendment was attached. Jones has failed to meet his burden to show that it is
reasonably possible he could amend his complaint to state a viable cause of action.
                                   III.   DISPOSITION
       The judgment is affirmed. Wayne is entitled to his costs on appeal.




                                                 _________________________
                                                 Bruiniers, J.


We concur:


_________________________
Simons, Acting P. J.


_________________________
Needham, J.




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