Filed 10/17/14 Portillo v. Lilval Properties CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


ARMANDO PORTILLO,                                                                            C071665

                   Plaintiff and Appellant,                                          (Super. Ct. No.
                                                                               39200900209980CUBCSTK)
         v.
                                                                                 ORDER MODIFYING
LILVAL PROPERTIES, LTD. et al.,                                                 OPINION AND DENYING
                                                                               REHEARING [NO CHANGE
                   Defendants and Respondents.                                      IN JUDGMENT]




THE COURT:
         It is ordered that the opinion filed herein on September 24, 2014, be modified as
follows:
         1.        Following the second full paragraph which begins on page 13 with
“Because no triable issues of material fact . . .” insert the following text:




                                                             1
                                             IV

                                   Petition for Rehearing

       On October 8, 2014, plaintiff filed a petition for rehearing arguing that our
previous opinion erroneously relied on evidence from his own deposition that the trial
court purportedly found inadmissible. According to plaintiff, the trial court sustained an
objection to his deposition testimony, which plaintiff asserts was attached as an exhibit to
the Declaration of Dan Keyser. The record belies his argument. We therefore deny the
petition for rehearing.
       While the trial court sustained an objection to the Keyser declaration and its
exhibits, the record is devoid of any evidence showing plaintiff’s deposition testimony
was actually an exhibit to the Keyser declaration. The Keyser declaration itself never
references plaintiff’s deposition testimony. Nor does the Keyser declaration ever cite to
the deposition testimony as being one of its five listed exhibits--Exhibits A through E.
The fact that the trial court ruled the Keyser declaration and its exhibits were
inadmissible does not mean that the ruling applied to plaintiff’s deposition testimony.
       As defendants pointed out in their respondent’s brief, “[t]he trial court sustained
objections to the declaration of Dan Keyser, but no objections were made to the
deposition testimony of Armando Portillo. Mr. Portillo’s deposition testimony was
accepted without objection.” Notably, plaintiff never disputed respondent’s contention
that the deposition testimony was before the court below for consideration.
       Other documents in the record also lead to the conclusion that plaintiff’s
deposition testimony was not an exhibit to the Keyser declaration. For example,
defendants filed a document entitled “Index of Evidence in Support of Motion for
Summary Judgment or in the Alternative for Summary Adjudication.” Defendant’s
evidence index lists the following items of evidence in support of their summary
judgment motion: “1. Declaration of Dan Keyser with exhibits[;] [¶] 2. Deposition


                                              2
Testimony of Armando Portillo (cited portions underlined)[; and] [¶] 3. Request for
judicial notice of three exhibits.” This document plainly shows the plaintiff’s deposition
testimony as being separate from the Keyser declaration and not as an attachment to the
declaration as plaintiff now argues.
       Similarly, plaintiff filed a document entitled, “Objections to Evidence Offered in
Support of Defendant’s Motion.” The document specifically objects to each and every
paragraph in the Keyser declaration as well as to Exhibits A through E of the declaration.
The document, however, never mentions plaintiff’s deposition testimony, nor specifically
objects to that evidence. If plaintiff had intended to object to the deposition testimony as
part of the Keyser declaration, he arguably would have included such an objection in this
document. The absence of a specific objection to the deposition testimony is telling.
       It is also noteworthy that in opposing the motion for summary judgment,
plaintiff’s separate statement of facts admitted that material facts based on his deposition
testimony were undisputed. Had plaintiff truly objected to the deposition testimony as
part of the Keyser declaration, it is unlikely plaintiff would have conceded that various
facts based on the deposition testimony were undisputed.
       While plaintiff did sometimes object to the deposition testimony as irrelevant, the
objection at most preserved the issue for appeal since it does not appear that the trial
court ever expressly ruled on the objection. (Reid v. Google, Inc. (2010) 50 Cal.4th 512,
534 [when a trial court ruling on a summary judgment motion “fails to rule expressly on
specific evidentiary objections, it is presumed that the objections have been overruled . . .
and the objections are preserved on appeal”].) That does not mean, however, that the trial
court did not consider the evidence (ibid. [trial court presumed to have considered the
evidence where the court fails to rule expressly on a specific evidentiary objection]), or
that plaintiff’s relevancy objections were meritorious. (Id. at pp. 534-535 [appellate court
may consider evidentiary objections on the merits in reviewing summary judgment].)



                                              3
       Finally, rule 3.1116 of the California Rules of Court governs the use of deposition
testimony as an exhibit to a motion. Under the rule, “[t]he first page of any deposition
used as an exhibit must state the name of the deponent and the date of the deposition.”
(Cal. Rules of Court, rule 3.1116 (rule 3.1116).) “Other than the title page, the exhibit
must contain only the relevant pages of the transcript.” (Rule 3.1116.) The testimony
upon which the party is relying must also be marked in a manner that calls attention to
the testimony. (Rule 3.1116.) A review of the record reveals defendants complied with
the requirements of rule 3.1116. And, at this late stage, any purported objection based on
lack of authentication has been waived since plaintiff never objected below that the
deposition transcript was not properly authenticated. (People v. Sims (1993) 5 Cal.4th
405, 448 [failure to raise objection to lack of authentication of transcript in trial court
waived objection on appeal].)
       Given the record and plaintiff’s failure to counter respondents’ claim that the
deposition testimony was properly before the court, we rightfully considered the evidence
of plaintiff’s deposition in reaching our conclusion. The petition for rehearing is denied.
This modification does not change the judgment.


THE COURT:




      HULL                   , Acting P. J.



      MAURO                  , J.



      MURRAY                 , J.


                                               4
Filed 9/24/14 Portillo v. Lilval Properties CA3 (unmodified version)
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


ARMANDO PORTILLO,                                                                            C071665

                   Plaintiff and Appellant,                                          (Super. Ct. No.
                                                                               39200900209980CUBCSTK)
         v.

LILVAL PROPERTIES, LTD., et al.,

                   Defendants and Respondents.




         Plaintiff Armando Portillo appeals from a final judgment entered following an
order granting a motion for summary judgment filed by defendants Lilval Properties, Ltd.
(Lilval) and Grupe Management Company (Grupe) (collectively, defendants). Plaintiff’s
first amended complaint alleged promissory estoppel, fraud, and breach of contract. The
underlying dispute stems from plaintiff’s loss of a gas station business when a lease for
the real property on which the station sat was not renewed after plaintiff believed there
was no need to exercise an option to extend the lease because defendants had promised to
sell him the real property for $850,000. We conclude no triable issues of material fact
remain as to any of plaintiff’s causes of action and affirm.


                                                             1
                                 FACTS AND PROCEEDINGS

       Consistent with basic rules of appellate procedure, we construe the evidence and
reasonable inferences therefrom in the light most favorable to plaintiff, the party who
opposed summary judgment. (Sellery v. Cressey (1996) 48 Cal.App.4th 538, 541, fn. 1.)

       A.     The Lease Agreement

       Defendant Lilval owned real property at the intersection of Benjamin Holt Drive
and Interstate 5 in Stockton. Defendant Grupe managed the property for Lilval.
       In 1971, Lilval leased the property to Shell Oil Company (Shell) to operate a gas
station, which Lilval agreed to build under the terms of the lease. The gas station was
completed in 1972.
       In 1990, Shell and Lilval amended the lease agreement to give Shell options to
extend the lease for five additional periods of three years each. To extend the lease, Shell
was required to notify Lilval in writing at least 45 days prior to the expiration of the then-
current extension period.
       Shell later assigned the amended lease to Equilon Enterprises, LLC. Equilon
Enterprises, in turn, assigned the amended gas station lease to John Kendrick (Kendrick)
in November 2004. At the time, the lease was set to expire on May 31, 2006, unless
renewed for an additional three years under the lease’s extension provisions. Notice of
the intent to extend the lease was due no later than April 16, 2006.

       B.     Plaintiff’s Agreement with Kendrick to Purchase the Gas Station Business

       Sometime in 2004, plaintiff learned Kendrick was selling the gas station business.
Plaintiff originally testified in his deposition that he formed APO Enterprises, Inc., to
purchase the gas station business from Kendrick and that he personally did not acquire
any interest in the business. He later claimed in his declaration opposing the motion for
summary judgment that he purchased the business individually. As discussed below, this
factual dispute is not material to the outcome of this appeal. (Hanson v. Lucky Stores,


                                              2
Inc. (1999) 74 Cal.App.4th 215, 223, fn. 5 [“ ‘[S]ummary judgment may be appropriate
even if there are disputed factual issues; if the defendant’s showing negates an essential
element of the plaintiff’s case, no amount of factual conflict upon other aspects of the
case will preclude summary judgment’ ”].)
       Considering the evidence in the light most favorable to plaintiff (Sellery, supra, 48
Cal.App.4th at p. 541, fn. 1), since APO Enterprises is a suspended corporation that is not
a party to the lawsuit, we will assume for purposes of this appeal that plaintiff purchased
the gas station business individually.
       Kendrick agreed to sell plaintiff the business for approximately $300,000. In
addition to paying for equipment and inventory, plaintiff paid Kendrick $150,000, and
then began making monthly installment payments on the remaining $150,000. The men
agreed that Kendrick would assign plaintiff his interest in the lease agreement once
plaintiff made the final payment on the $300,000 total purchase price. Plaintiff never
made the final payment; according to plaintiff, he still owes Kendrick approximately
$150,000.

       C.     Negotiations to Purchase the Real Property from Lilval

       In March 2006, plaintiff and Kendrick spoke with a representative of Grupe who
told them Lilval was willing to sell the property for $850,000. On April 14, 2006, two
days before the lease extension notification was due, plaintiff prepared a document
entitled “Option to Purchase Building.” The agreement as drafted was between Lilval
and Kendrick “or assignee.” Neither plaintiff nor APO Enterprises are mentioned
anywhere in the option agreement. Instead, plaintiff claimed Kendrick had agreed to
transfer the land to him after Kendrick purchased it from Lilval.
       After Kendrick signed the Option to Purchase Building document on April 14,
2006, plaintiff forwarded “the proposed written agreement” to Grupe together with a
check for $100. Lilval never signed the proposed option agreement.


                                             3
       The April 16, 2006, deadline for exercising the option to extend the lease
subsequently passed. Lilval never received a notice to extend the lease by that date.
       On April 25, 2006, Lilval caused a document to be prepared entitled Agreement of
Sale of Real Property and Joint Escrow Instructions. The proposed agreement was
between Lilval and Kendrick; it does not reference either plaintiff or APO Enterprises.
The agreement lists the price for the property as $1,000,000, and recites that the
agreement is effective upon being executed by both parties. Kendrick signed the
agreement on May 16, 2006, but Lilval did not sign the agreement.

       D.     Unlawful Detainer to Remove Plaintiff from the Property

       In late May 2006, defendants notified Kendrick and plaintiff that the option to
renew the lease had not been exercised. Plaintiff attempted to contact Grupe to discuss
the issue, but no representative would speak to him about the matter. Later, Grupe
notified Kendrick and plaintiff that Lilval was now willing to sell the property for
$1,500,000; otherwise, Lilval required a higher lease rate in order to continue the now
expired lease. Plaintiff who, at the time, was operating the gas station business, lost the
gas station business after defendants initiated an unlawful detainer action and he was
evicted from the property.

       E.     The Complaint and Motion for Summary Judgment

       Plaintiff filed a first amended complaint against defendants alleging promissory
estoppel, fraud, and breach of contract. The complaint alleged as follows: On or about
March 1, 2004, plaintiff purchased an interest in the gas station from Kendrick and
Kendrick assigned him an interest in the lease after which plaintiff operated the business.
Under the terms of the lease, plaintiff was entitled to two options to extend the lease for
three years each.
       In March 2006, plaintiff spoke with a Grupe representative about buying the gas
station. Plaintiff and the Grupe agent agreed that plaintiff would purchase the property


                                              4
for $850,000. Plaintiff prepared a written “Option to Purchase Land” whereby plaintiff
could purchase an option to buy the property by forwarding a signed copy of the Option
to Purchase Land document along with $100. The Option to Purchase was signed on
plaintiff’s behalf and plaintiff forwarded the document and check to Grupe. Plaintiff did
not exercise his option under the lease agreement to extend the lease, which was due
April 16, 2006, because he believed he would own the real property.
       In May 2006, defendants informed plaintiff that they refused to sell the property to
him for $850,000, and instead demanded $1,000,000. Plaintiff agreed to the new price.
In a letter dated May 25, 2006, defendants forwarded a letter to plaintiff contending he
had failed to exercise his option to renew the lease and that plaintiff should contact
defendants immediately if he wished to continue the lease. Plaintiff immediately called
defendants and visited their business office but he was unable to speak with them. In
early June 2006, defendants refused to extend the lease and refused to sell him the
property for $1,000,000. Instead, defendants demanded $1,500,000 for the property, or
they wanted to negotiate a higher lease rate.
       Defendants successfully moved for summary judgment. Based on the admissible
evidence presented on the motion, the court concluded summary judgment was proper on
defendant’s promissory estoppel cause of action because there was no clear promise by
Lilval to sell the property to plaintiff. The court found the correspondence and
communications amounted to nothing more than negotiations to possibly sell the
property.
       The court also concluded the element of reliance was lacking. Based on the
evidence presented, the court found plaintiff was not a party to the lease agreement
between Lilval and Kendrick. As a result, plaintiff could not have detrimentally relied on
Lilval’s purported promise to sell the property when not renewing the lease because he
never had the ability or authority to extend the lease.



                                                5
       As for plaintiff’s fraud cause of action, the court determined discussing the
possible sale of property for a certain sum did not qualify as a misrepresentation, and that
even if it did, the misrepresentation was to Kendrick, not plaintiff. For reasons similar to
the promissory estoppel claim, the court found plaintiff had not justifiably relied on
Lilval’s purported promise to sell the property for $850,000.
       The court concluded plaintiff’s cause of action for breach of contract based on the
lease agreement could not withstand summary judgment because plaintiff was not a party
to the lease. And, the court found that even if the purported option agreements could be
construed as contracts to purchase the property, they were between Kendrick and Lilval
and not plaintiff.
       The court entered judgment in favor of defendants. Plaintiff’s timely appeal
followed.

                                   STANDARD OF REVIEW

       Summary judgment is proper only when the moving party establishes that there is
no triable issue of material fact and that he is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); further section references are to the Code of Civil
Procedure unless otherwise specified.) To do so, the moving party “must show either that
one or more essential elements of the plaintiff’s cause of action cannot be separately
established or that there is an affirmative defense which bars recovery.” (Couch v. San
Juan Unified Sch. Dist. (1995) 33 Cal.App.4th 1491, 1498.) If the plaintiff fails in
response to set forth specific facts showing a triable issue of material fact as to that cause
of action or defense, summary judgment must be granted. (Ibid.; § 437c, subds. (n),
(o)(2).)
       “To determine whether triable issues of fact do exist, we independently review the
record that was before the trial court when it ruled on defendants’ motion.” (Martinez v.
Combs (2010) 49 Cal.4th 35, 68.) “We apply the same three-step analysis required of the


                                              6
trial court. We begin by identifying the issues framed by the pleadings since it is these
allegations to which the motion must respond. We then determine whether the moving
party’s showing has established facts which justify a judgment in movant’s favor. When
a summary judgment motion prima facie justifies a judgment, the final step is to
determine whether the opposition demonstrates the existence of a triable, material factual
issue.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274,
1279.)
         In reviewing an order granting summary judgment, we consider the evidence
submitted, “except that to which objections have been made and sustained by the court,
and all inferences reasonably deducible” therefrom. (§ 437c, subd. (c).) We view the
evidence in the light most favorable to plaintiff as the party opposing the motion,
“resolving evidentiary doubts and ambiguities in [his] favor.” (Martinez, supra, 49
Cal.4th at p. 68.)
         Defendants have not challenged the trial court’s order sustaining an objection to
the declaration of Dan Keyser. Therefore, we shall not consider the Keyser declaration or
the evidence attached to it. (American Continental Ins. Co. v. C & Z Timber Co. (1987)
195 Cal.App.3d 1271, 1281 [“in reviewing a summary judgment, the appellate court must
consider only those facts before the trial court”].)

                                         DISCUSSION

                                               I

                                     Promissory Estoppel

         We first consider plaintiff’s claim that the court erred in granting summary
judgment on his first cause of action for promissory estoppel. We conclude summary
judgment was warranted.
         Under the doctrine of promissory estoppel, “ ‘[a] promise which the promisor
should reasonably expect to induce action or forbearance on the part of the promisee or a


                                               7
third person and which does induce such action or forbearance is binding if injustice can
be avoided only by enforcement of the promise.’ ” (Toscano v. Greene Music (2004) 124
Cal.App.4th 685, 692.) “The elements of promissory estoppel are (1) a clear promise, (2)
reliance, (3) substantial detriment, and (4) damages ‘measured by the extent of the
obligation assumed and not performed.’ ” (Ibid.)
       The crux of plaintiff’s promissory estoppel claim is that in reliance on defendants’
promise to sell him the property for $850,000, he did not exercise the option to extend the
lease within the mandated time frame because he believed he would eventually own the
property thus making an extension unnecessary. Based on this reliance, the lease was not
timely extended, the lease later expired and plaintiff was eventually evicted causing him
to lose the gas station business.
       Even if we assume that the price negotiations as described by plaintiff qualified as
a sufficiently clear promise to sell him the property for $850,000, we conclude plaintiff
cannot establish the necessary element of justifiable reliance. As the trial court correctly
noted, the undisputed evidence in the record shows plaintiff was not a party to the lease
agreement with Lilval.
       Plaintiff’s own declaration opposing the motion attested to the fact that Kendrick
agreed to assign him an interest in the lease only after plaintiff made the final payment
under their agreement. Plaintiff’s declaration provides: “Mr. Kendrick remained
involved in the service station business, and we agreed that he would assign the lease
agreement to me, individually, after a final payment on the business was made.” Plaintiff
also conceded under oath in his deposition that he never fully paid Kendrick for the gas
station business. Indeed, plaintiff admitted to owing Kendrick approximately $150,000.
At best, plaintiff could have asked Kendrick to exercise the option to extend the lease
period which plaintiff did not do.
       One can reasonably infer that Kendrick never assigned plaintiff any interest in the
lease because plaintiff never finished paying Kendrick for the gas station business as

                                              8
required by their agreement. (§ 437c, subd. (c) [court considers evidence submitted and
all reasonably deducible inferences from such evidence].) A necessary corollary to this
reasonable inference is that plaintiff was never a party to the lease -- meaning he never
had a right to exercise the option to extend the lease. Plaintiff, then, could not have
reasonably relied on defendants’ purported promise to sell the property as an excuse for
the lease expiring without a proper extension notification.
       We would reach the same conclusion even assuming the agreement to purchase
the gas station business was between Kendrick and APO Enterprises as plaintiff
originally testified in his deposition. (Jacobs v. Fire Ins. Exchange (1995) 36
Cal.App.4th 1258, 1270 [“A court may disregard a declaration, prepared for purposes of
a summary judgment motion, which conflicts with deposition testimony of the
declarant”].) Regardless of whether APO Enterprises or plaintiff individually had the
contract with Kendrick, it is undisputed that Kendrick was never fully paid under the
agreement and that Kendrick agreed to assign his interest in the lease once final payment
had been made. The result is the same.
       Moreover, any reliance on Grupe’s purported representation that Lilval was
willing to sell the property for $850,000--without more--was inherently unreasonable.
Simply put, there was no basis to believe that an unsigned “proposed” option to purchase
the property in Kendrick’s name, delivered to Lilval only two days before the lease
period expired, meant that plaintiff did not have to take any steps to protect whatever
interest he may have had in the lease, including asking Kendrick, the actual party to the
lease, to exercise the option to extend. The record is devoid of any evidence that plaintiff
did or would have asked Kendrick to extend the lease and that Kendrick would have done
so.
       “[A] party plaintiff’s misguided belief or guileless action in relying on a statement
on which no reasonable person would rely is not justifiable reliance. . . . ‘If the conduct
of the plaintiff in the light of his own intelligence and information was manifestly

                                              9
unreasonable, . . . he will be denied a recovery.’ ” (Kruse v. Bank of America (1988) 202
Cal.App.3d 38, 54 [discussing justifiable reliance in fraud context].) A mere “hopeful
[expectation]” that plaintiff could potentially buy the property from Kendrick at some
unknown future date assuming Kendrick exercised the proposed written option that Lilval
never signed “cannot be equated with the necessary justifiable reliance.” (Id. at p. 55.)
       We briefly address plaintiff’s contention on appeal that he and Kendrick “acted
together in matters relating to the lease.” Plaintiff impliedly argues that he and Kendrick
were somehow partners and that by virtue of this purported partnership, plaintiff actually
did have the right to extend the lease contrary to the trial court’s findings.
       Nowhere in plaintiff’s first amended complaint, however, does plaintiff allege that
he and Kendrick were partners or that such a partnership, even assuming it existed, was
ever a party to the lease agreement. Instead, plaintiff’s complaint alleges he was assigned
an interest in the lease, that he agreed to buy the property from defendants for $850,000,
and that he did not exercise the option to extend the lease because he believed he would
eventually own the property out right.
       Plaintiff’s pleadings, and not his subsequent appellate arguments, determine the
scope of issues on a summary judgment motion. (Hernandez, supra, 40 Cal.App.4th at p.
1279 [the pleadings determine the scope of the issues on summary judgment because the
motion must respond to the allegations of the pleadings].) Although a party may raise
other matters in opposing a motion for summary judgment and seek leave to amend the
complaint accordingly, plaintiff failed to do so here. (Laabs v. City of Victorville (2008)
163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the
motion for summary judgment. . . .If a plaintiff wishes to expand the issues presented, it
is incumbent on the plaintiff to seek leave to amend the complaint either prior to the
hearing on the motion for summary judgment, or at the hearing itself”].) Plaintiff’s
implicit argument that he had the right to extend the lease because he and Kendrick were
acting together in all lease matters is therefore forfeited for purposes of appeal. (Ibid.

                                              10
[“To allow a party to expand its pleadings by way of opposition papers creates, as it
would here, an unwieldy process”].)

                                                II

                                             Fraud

       Plaintiff next contends summary judgment on his fraud claim was unwarranted.
We disagree.
       A cause of action for fraud requires a “(1) misrepresentation; (2) knowledge of
falsity; (3) intent to defraud, i.e., induce reliance; (4) justifiable reliance; and (5) resulting
damage.” (Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565.)
Plaintiff’s second cause of action alleges that defendants’ promise to sell him the
property for $850,000 was fraudulent because they never intended to sell him the
property for that amount, and that he justifiably relied on this false promise in not
exercising his option to extend the lease.
       Like the trial court, we conclude the record does not disclose evidence which
creates a triable and material issue of fact on plaintiff’s fraud claim. First, the undisputed
evidence shows plaintiff was never a party to the lease, and, hence, never had any right to
extend the lease. Plaintiff’s reliance on defendants’ purported promise to sell as an
excuse for the lease term expiring without a proper extension notice was therefore
unreasonable.
       Second, as noted above, plaintiff’s reliance on the promise to sell the property was
unreasonable given that the unsigned option agreement represented nothing more than a
hopeful expectation that he could one day potentially buy the property. (Kruse, supra,
202 Cal.App.3d at pp. 54-55.) Plaintiff’s misguided belief that he need not take any
precautionary actions to protect the lease, such as having Kendrick submit a written
notification to Lilval exercising the option to extend the lease, was simply unjustified.




                                               11
       And, for the reasons set forth above, any implied argument on appeal that plaintiff
and Kendrick were somehow acting in concert and that together they had the right to
extend the lease is forfeited as plaintiff never amended his complaint to allege such a
theory. (Laabs, supra, 163 Cal.App.4th at p. 1258 [plaintiff could not raise placement or
location of luminaire as basis for dangerous condition liability in opposing summary
judgment where her complaint only alleged that a dangerous condition resulted from
inadequate sight distance and lack of warning signs at an intersection and she did not
amend her complaint prior to summary judgment hearing].)

                                              III

                                    Breach of Contract

       Plaintiff finally contends the trial court erred in granting summary judgment on his
breach of contract claim. Plaintiff argues a material factual dispute exists regarding
whether there was an oral or written contract for Lilval to sell the real property to him for
$850,000. We disagree.
       Plaintiff’s third cause of action for breach of contract alleges that Lilval breached
the lease agreement not that Lilval breached some purported contract to sell the property
to plaintiff. As noted above, the scope of the issues on a summary judgment motion are
determined by the pleadings. (Hernandez, supra, 40 Cal.App.4th at p. 1279.) Plaintiff
never sought to amend his complaint to allege breach of an agreement to sell him the real
property for $850,000. The issue, therefore, is forfeited for purposes of this appeal.
(Laabs, supra, 163 Cal.App.4th at p. 1258.)
       To prevail on his breach of contract claim as alleged in the first amended
complaint, plaintiff had to demonstrate a contract, his performance or excuse for
nonperformance, the defendants’ breach, and damages. (Amelco Electric v. City of
Thousand Oaks (2002) 27 Cal.4th 228, 243.) The first step in proving his claim, then,
was establishing that a contract in fact existed between himself and Lilval. Although


                                              12
plaintiff’s complaint alleges he too was a party to the lease between Lilval and Kendrick
because Kendrick assigned him the lease in March 2004, the undisputed evidence in the
record proves otherwise.
       Plaintiff’s declaration opposing the motion conceded Kendrick was to assign him
the lease only after plaintiff paid him in full for the gas station business. Plaintiff
conceded he never finished paying Kendrick for the business. As discussed above, the
trial court could reasonably infer that Kendrick never assigned the lease to plaintiff given
plaintiff’s failure to fully pay for the business. (§ 437c, subd. (c).) Because plaintiff was
never assigned an interest in the lease and was never a party to the lease with Lilval,
plaintiff’s breach of contract cause of action fails for want of an enforceable contract
between plaintiff and defendants.
       Because no triable issues of material fact remain as to any of plaintiff’s causes of
action, the trial court properly granted summary judgment in favor of defendants.

                                         DISPOSITION

       The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)



                                                          HULL                   , Acting P. J.



We concur:



      MAURO                  , J.



      MURRAY                 , J.



                                              13
