Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00098063-CU-FR-CTL Joan M. Lewis, Judge.
IRION, J.
This is an appeal from a summary judgment against plaintiff Joseph Sorge and in favor of defendant Theresa Gaasterland. After their personal relationship ended, Sorge sued Gaasterland on theories of money had and received, money lent, and fraud, to recover $80,000 his company had transferred to her several years earlier. The trial court ruled the first two claims were time-barred and Sorge had no evidence to support the third. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal is taken from the trial court's grant of summary judgment in favor of Gaasterland and against Sorge, we take the facts from the record before the trial court when it granted the motion, liberally construing the declarations and other evidence in favor of Sorge and resolving any doubts in his favor. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (Johnson); Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186; Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 990 (Kurokawa).) So viewed, the record reveals the following facts.
Sorge and Gaasterland met in early 2000 and carried on a "romantic" or "personal" relationship at various times until 2005 or 2006. In 2002, when Gaasterland moved from New York City to San Diego to start a new job as a professor at the University of California, San Diego (UCSD), the parties began a professional business relationship as well.
In connection with her professional relocation, Gaasterland decided to buy a house in Del Mar. On September 19, 2002, Sorge wired $80,000 from an account of an investment company he owned (Biosense Management, LLC; hereafter, Biosense) to Gaasterland's savings account to be used as part of the purchase price. According to Sorge, Gaasterland agreed the $80,000 either would give Biosense a 10 percent ownership interest in the Del Mar property or would be converted into a loan at a later date; Sorge agreed to postpone documentation of the transaction until they decided between these two options; Gaasterland assured him she would document the transaction when the decision was made; and throughout 2003 Gaasterland led Sorge to believe that she would obtain financing from UCSD and repay Biosense. The money transfer, however, was never documented.
Gaasterland disputes Sorge's characterization of the transaction. She denies she ever agreed to treat the $80,000 transfer as a loan and instead avers the money was a gift to induce her to move from New York City to San Diego so that she and Sorge could further their romantic relationship. Since we are reviewing a summary judgment against Sorge, however, we report his version of the facts. (See, e.g., Kurokawa, supra, 199 Cal.App.3d at p. 990 [on summary judgment, "the papers filed on behalf of the opponent [(Sorge)] are liberally construed" and "every reasonable doubt must be resolved in [his] favor"].)
In December 2003 the parties' personal relationship encountered serious problems. Despite joint counseling and other efforts throughout 2004, the parties were unable to repair their relationship, which ended at some point in 2005 or 2006. The business relationship survived for a longer period, however, as Gaasterland continued to consult for one of Sorge's companies.
In January 2007 the parties met at a scientific meeting held at a ski resort in Colorado. According to Sorge, they discussed "resolution" of what to do about the $80,000 Biosense had given Gaasterland to purchase the Del Mar property. Sorge contends Gaasterland then agreed they could "convert" Biosense's 10 percent ownership interest in the property into a promissory note, secured by a second deed of trust on the property, payable over a period of up to 10 years.
The next month, Sorge tried to contact Gaasterland regarding execution of a second deed of trust on the Del Mar property, but she refused to provide necessary documentation and refused to return his telephone calls. In June and July 2007, lawyers for both parties exchanged correspondence regarding the loan, but Gaasterland still refused to sign the deed of trust or to repay the $80,000. A year later, Biosense's lawyer sent Gaasterland a letter demanding repayment of the $80,000, with interest. Gaasterland's lawyer responded with a letter stating the demand had no merit.
Sorge subsequently obtained an assignment of Biosense's claims against Gaasterland and sued her on December 15, 2008. In his complaint, Sorge sought to recover the $80,000, plus interest from September 19, 2002, under three theories: money had and received, money lent, and fraud.
Gaasterland filed an answer in which she generally denied the allegations of Sorge's complaint and asserted several affirmative defenses, including the statute of limitations and the statute of frauds. She later moved for summary judgment, or in the alternative for summary adjudication, on the grounds that Sorge's claims were barred by the statute of limitations or the statute of frauds and that Sorge could not establish essential elements of the claims. The trial court granted the motion and entered judgment against Sorge.
DISCUSSION
On appeal from a summary judgment, we independently review the record before the trial court to determine whether there is any triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c); Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) When, as in this case, the defendant moves for summary judgment, the defendant bears the initial burden to show that the plaintiff cannot establish an essential element of the claim or that the defendant has a complete defense to the claim. (Code Civ. Proc., § 437c, subds. (a), (o), (p)(2); Saelzler, at p. 768; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar).) Once the defendant has met this burden, the burden shifts to the plaintiff to "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849-850.) The evidentiary materials must be viewed in the light most favorable to the party opposing summary judgment, and any doubts are resolved in that party's favor. (Johnson, supra, 43 Cal.4th at p. 64; Saelzler, at p. 768.) Applying these rules, we conclude that the trial court properly granted Gaasterland's motion for summary judgment because the record shows there was no triable issue of material fact regarding any of Sorge's three claims and Gaasterland was entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 ["A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail."].)
A. Sorge's Cause of Action for Money Had and Received Is Time-Barred
Sorge contends his claim for money had and received was timely because he filed his complaint less than two years after the parties "fully" agreed to a " 'loan' arrangement." We disagree.
As a threshold matter, Sorge cannot predicate his claim for money had and received on a loan arrangement with Gaasterland. To prevail on a common count for money had and received, the plaintiff must prove that the defendant is indebted to the plaintiff for money the defendant received for the use and benefit of the plaintiff. (Pike v. Zadig (1915) 171 Cal. 273, 276; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1622.) Sorge alleged that in exchange for the $80,000 that Biosense wired to Gaasterland's savings account, Gaasterland agreed to give Biosense a 10 percent ownership interest in the Del Mar property "or, alternatively, treat the funds as a personal loan." The purchase of an ownership interest in the Del Mar property with the $80,000 would be for Biosense's use and benefit and would support a claim for money had and received if Gaasterland did not so use the money. But if the $80,000 were used to fund a personal loan to Gaasterland, the money would be for her use and benefit and would not support such a claim. (See Jones v. Re-Mine Oil Co. (1941) 47 Cal.App.2d 832, 843 ["proof of a loan of money will not support a count for money had and received"].) We therefore disregard Sorge's allegations concerning a " 'loan' arrangement" and consider only those pertaining to a purchase of an ownership interest in the Del Mar property in determining whether his claim was timely.
So considered, the claim was not timely filed. A claim for money had and received is subject to a two-year limitations period. (Code Civ. Proc., § 339; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) The period commences when the defendant receives the money. (Orloff, at p. 489; Fall v. Lincoln Mortgage Co. (1931) 115 Cal.App. 651, 654; Whittle v. Whittle (1907) 5 Cal.App. 696, 699.) The parties agree Gaasterland received the $80,000 no later than September 20, 2002. Sorge thus had until September 20, 2004, to sue Gaasterland (Code Civ. Proc., § 339), but he did not do so until December 15, 2008. His claim for money had and received was therefore barred by the statute limitations and susceptible to summary adjudication on that ground. (See Code Civ. Proc., § 437c, subd. (o)(2) [claim has no merit if defendant has affirmative defense thereto]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-396 (Norgart) [statute of limitations "operates in an action as an affirmative defense, " and "a cause of action brought by a plaintiff outside such period is barred"]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly) [when undisputed facts show claim is untimely, "summary judgment is proper"].)
Because we conclude the trial court correctly ruled this claim was time-barred, we need not and do not address the parties' contentions regarding the statute of frauds (Civ. Code, § 1624, subd. (a)(3)), which afforded an alternative basis for the trial court's summary adjudication of this claim.
B. The Cause of Action for Money Lent Is Time-Barred
Sorge also contends his claim for money lent was timely because he filed his complaint less than two years after the parties "fully" agreed to a " 'loan' arrangement." Again, we disagree.
To determine whether this claim was timely filed, it is first necessary to understand the precise facts which purportedly establish the " 'loan' arrangement" upon which Sorge bases the claim. To state a common count for money lent, the plaintiff need only allege that the defendant is indebted in a certain sum for money loaned by the plaintiff and that the defendant has not repaid the money. (Pleasant v. Samuels (1896) 114 Cal. 34, 36-38.) In his complaint, Sorge alleged that (1) on or about September 19, 2002, Gaasterland became indebted to Biosense in the sum of $80,000 for money lent; (2) the parties subsequently agreed Gaasterland would repay the loan with interest upon demand; (3) Biosense demanded repayment on July 1, 2008; and (4) Gaasterland refused to repay the loan. In opposition to the motion for summary judgment, Sorge submitted a declaration attesting to these facts, and in his opening brief on appeal he concedes "the money transfer was never properly documented." Considering all of this material in the light most favorable to Sorge, as we must on appeal from a summary judgment against him (Johnson, supra, 43 Cal.4th at p. 64; Kurokawa, supra, 199 Cal.App.3d at p. 990), the record establishes at most an oral agreement by Gaasterland to repay the $80,000 she received from Biosense in September 2002, but without a specified time for repayment.
Sorge's claim for Gaasterland's breach of this oral agreement is barred by the statute of limitations. A claim based on "a contract, obligation or liability not founded upon an instrument of writing" must be filed within two years of accrual. (Code Civ. Proc., § 339.) With respect to an oral loan, when "[n]o time [is] specified within which [the loan] was to be repaid, the presumption of law is that it was to be repaid on demand; and that being so, the statute of limitations commenced to run from the time of the loan." (Dorland v. Dorland (1884) 66 Cal. 189, 190, italics added (Dorland); see also Leonard v. Gallagher (1965) 235 Cal.App.2d 362, 375 [loans and notes with no time fixed for payment "were payable on demand"]; Rains v. Arnett (1961) 189 Cal.App.2d 337, 344 [where a common count for money lent lies, "the law raises an implied promise and a legal liability on the part of the defendant to pay immediately on demand"].) No demand for payment is necessary to start the statute running. (Miguel v. Miguel (1920) 184 Cal. 311, 314 (Miguel) ["a cause of action for money payable on demand accrues... without the necessity for any demand"]; Carrasco v. Greco Canning Co. (1943) 58 Cal.App.2d 673, 675 [same].) Here, since the parties did not specify a repayment date, the limitations period began to run immediately when Biosense lent Gaasterland the $80,000 on September 19, 2002. Sorge's action against Gaasterland filed on December 15, 2008, therefore came more than four years too late. (Code Civ. Proc., § 339.)
Sorge's contention it was not until some unspecified time "[s]ubsequent" to September 19, 2002, that the parties expressly agreed the loan would be payable on demand does not allow him to overcome the limitations bar. "For purposes of the statute of limitations, loans payable on demand are deemed payable at their inception, and the statute begins to run from such time." (Buffington v. Ohmert (1967) 253 Cal.App.2d 254, 256; see also Tabata v. Murane (1944) 24 Cal.2d 221, 226 ["the obligation to repay would have arisen instanter upon advancement of the money by plaintiff"]; Miguel, supra, 184 Cal. at p. 314 ["a cause of action for money payable on demand accrues with the inception of the obligation"].) Hence, what matters for purposes of the statute of limitations is the date Gaasterland's obligation to repay arose, not some later date when the parties agreed the loan would be payable on demand.
In an effort to avoid this conclusion, Sorge points to the portion of the declaration he filed in opposition to Gaasterland's motion for summary judgment regarding the parties' discussion at a Colorado ski resort in January 2007. Based on that discussion, Sorge contends "[a] trier of fact could conclude that [he] and Gaasterland did not fully agree to a 'loan' arrangement until January 2007, when the ten percent interest in the Del Mar property was converted into a loan." The problem for Sorge is that his declaration contradicts the allegations of his complaint, and the law does not permit him to create a triable issue of fact to avoid summary judgment in this way.
In his complaint, Sorge alleged that (1) "[o]n or about September 19, 2002, " Gaasterland "became indebted to Biosense in the sum of $80,000 for money lent"; (2) in January 2007, Gaasterland "reassured [him] that she intended to repay the [l]oan"; and (3) despite written demand, Gaasterland has not repaid the loan and now owes Sorge (because of the assignment from Biosense) $80,000, plus $49,000 in interest "from September [19], 2002." (Italics added.) Reasonably construed, these allegations state that the loan was actually made in September 2002 (see Provident etc. Assn. v. Davis (1904) 143 Cal. 253, 255 ["term 'indebted' means that a complete and absolute liability exists"]) and that Gaasterland merely "reassured" Sorge she would repay that loan during their discussion in January 2007.
Sorge cannot escape the legal consequences of his allegations that the loan originated in September 2002. Those allegations constitute judicial admissions on which Gaasterland may rely in seeking summary judgment. (Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 148; Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324; St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248.) Sorge is bound by his own pleadings and cannot defeat Gaasterland's motion for summary judgment by submitting a declaration that contradicts them. (Joslin, at p. 148; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 871; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.) We therefore disregard the portion of Sorge's declaration stating the loan was not made until January 2007.
In any event, the additional promise Gaasterland purportedly made in 2007 would not save Sorge's claim. If viewed as a renewal of the promise she initially made in 2002, her "reassurance" in 2007 would revive the original promise only if it were contained in a writing signed by her. (Code Civ. Proc., § 360; Dorland, supra, 66 Cal. at p. 190; Kurokawa, supra, 199 Cal.App.3d at p. 990.) Sorge admitted, however, that Gaasterland's reassurance occurred as part of oral discussions they had at a ski resort in Colorado. If viewed instead as a new and independent promise, Gaasterland's "reassurance" in 2007 to repay the loan she received in 2002 would not be enforceable because the record contains no evidence that this new and independent promise was supported by any additional consideration. (Civ. Code, § 1550; Kurokawa, at p. 990; Wilmans v. Weissman (1940) 38 Cal.App.2d 693, 696.) The parties' discussion in January 2007 therefore would not remove the bar of the statute of limitations.
In sum, the record clearly established that Sorge's claim for money lent was barred because he did not file his complaint within two years of the date the loan was made. (Code Civ. Proc., § 339.) The trial court properly granted Gaasterland's motion for summary adjudication of this claim. (See Code Civ. Proc., § 437c, subd. (o)(2); Norgart, supra, 21 Cal.4th at pp. 395-396; Jolly, supra, 44 Cal.3d at p. 1112.)
We therefore need not and do not address the parties' contentions regarding the statute of frauds (Civ. Code, § 1624, subd. (a)(3)), which afforded an alternative basis for the trial court's ruling that this claim was barred.
C. The Cause of Action for Fraud Fails Because Sorge Has No Legally Sufficient Evidence That Gaasterland Ever Promised to Repay the $80,000 or to Execute a Second Deed of Trust on the Del Mar Property to Secure Repayment
Sorge contends triable issues of fact preclude summary adjudication of his cause of action for promissory fraud. He asserts he presented evidence from which a trier of fact could conclude that Gaasterland promised to repay the $80,000 and to execute a second deed of trust on the Del Mar property without any intention of ever keeping those promises. Once again, we disagree.
1. To Support a Promissory Fraud Claim, the Defendant's Promise Must Be Clear and Unequivocal
We begin by discussing the pleading and proof requirements for a promissory fraud claim because they are critical to our review of the trial court's summary adjudication of Sorge's fraud claim. The elements of a claim of promissory fraud are (1) a promise by the defendant (2) made without any intention of performance and (3) made with the intent to induce reliance by the plaintiff, followed by (4) reasonable reliance by the plaintiff that results in (5) injury to the plaintiff. (Civ. Code, §§ 1572, 1710; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar); Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 119.) The plaintiff must plead every element of the claim with particularity. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993; Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 783 (Goldrich); Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The plaintiff also ultimately must prove everything he is required to plead. (Evid. Code, § 500; Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1668.) Hence, "to establish a cause of action for fraud a plaintiff must plead and prove in full, factually and specifically, all of the elements of the cause of action." (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 156 (Conrad), italics added; see also Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159 [plaintiff "must specifically allege and prove" all elements of a claim "for deceit based on a false promise"].) In particular, to establish a promissory fraud claim, the plaintiff must specifically plead and prove a promise that is "clear and unequivocal." (Davis v. Rite-Lite Sales Co. (1937) 8 Cal.2d 675, 681 (Davis); see also Blake v. Paramount Pictures, Inc. (S.D.Cal. 1938)22 F.Supp. 249, 252 ["To be fraudulent as having been made without intention to perform, a promise must be specific, definite."]; Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 708 (Hills Trans. Co.) [allegations of false promise claim "should be clear, specific, and unequivocal"].)
2. There Is No Triable Issue of Material Fact on the Existence of the Promise Element of Sorge's Promissory Fraud Claim
With the above legal requirements in mind, we examine the record to determine whether there is a triable issue of material fact on Sorge's promissory fraud claim. Sorge based his claim on Gaasterland's allegedly false "reassurances and promises... leading up to and including those made in January 2007" that she would repay the $80,000 loan from Biosense and would execute a second deed of trust on the Del Mar property to secure her repayment obligation. As explained below, we conclude there is no triable issue of material fact because Sorge has no legally sufficient evidence that Gaasterland ever made such a promise.
a. Gaasterland Submitted Evidence That Negated the Promise Element of Sorge's Fraud Claim
As part of her motion for summary judgment, Gaasterland challenged Sorge's fraud claim on the ground that he could not establish essential elements of the claim. (See Code Civ. Proc., § 437c, subds. (o)(1), (p)(2).) She supported her motion with a declaration in which she generally denied she ever agreed to treat the $80,000 transfer as a loan and in which she specifically denied she promised in January 2007 to repay the money. She also stated in her declaration that the $80,000 was a "gift" from Sorge, which would be inconsistent with a promise by her to repay the money. (See Civ. Code, § 1146 ["A gift is a transfer of personal property, made voluntarily, and without consideration."]; Pacific Magnesium, Inc. v. Westover (S.D.Cal. 1949) 86 F.Supp. 644, 648 ["It is of the essence of any gift that there be no consideration."].) Gaasterland's declaration therefore negated the promise element essential to Sorge's promissory fraud claim and shifted the burden to Sorge to "set forth the specific facts showing that a triable issue of material fact exists" as to this element of his claim. (Code Civ. Proc., § 437c, subds. (o)(1), (p)(2), italics added; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Cheviot Vista Homeowners Assn. v. State Farm Fire & Casualty Co. (2006) 143 Cal.App.4th 1486, 1497.)
b. Sorge Did Not Submit Legally Sufficient Evidence to Support the Promise Element of His Fraud Claim
In an effort to raise a triable issue of fact to defeat Gaasterland's motion for summary judgment, Sorge submitted his own declaration and excerpts of testimony from the deposition of Dr. Jeffrey Jonas and contended a trier of fact could conclude from these materials that Gaasterland promised to repay the $80,000 and execute a second deed of trust on the Del Mar property to secure her repayment obligation. (See Code Civ. Proc., § 437c, subd. (p)(2).) For the reasons we discuss below, we are not persuaded.
i. Sorge's Declaration Does Not Contain Sufficient Evidence of a Promise by Gaasterland That Would Support His Fraud Claim
Sorge points to several paragraphs of his declaration as purported evidence of a promise by Gaasterland to repay the $80,000 and to secure her repayment obligation by executing a second deed of trust on the Del Mar property. As we explain, none raises a triable issue of fact sufficient to defeat summary judgment.
In his declaration, Sorge stated Gaasterland assured him she would document the transaction once it was determined whether the $80,000 would be used either to buy an ownership interest in the Del Mar property or to fund a personal loan to Gaasterland. According to Sorge, the exact form of the transaction depended on Gaasterland's "timing and ability to pay back such funds, " and the documentation would take place only "upon resolution of these unknowns." These contingencies "immediately place[d] [Sorge] on notice that finalization of the terms [would] undoubtedly require further negotiations" and did not constitute a "clear and unambiguous" promise to repay a loan or to execute a second deed of trust. (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 891 (Laks); see also Beck v. American Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1563 [mere " 'agreement to agree'... cannot be made the basis of a cause of action"].)
Although Laks, supra, 60 Cal.App.3d 885, 890-891, considered a claim of promissory estoppel and not promissory fraud, the claims are analogous in that both require proof of a clear and unambiguous promise by the defendant and reasonable reliance and resultant injury by the plaintiff. (See Helmer v. Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121, 1129 & fn. 3; Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.)
Sorge also stated in his declaration that (1) he "trusted" Gaasterland to "cooperate in documenting the investment"; (2) soon after the money was transferred, Gaasterland asked UCSD to increase her housing allowance from $51,000 to $81,000; and (3) throughout 2003 Gaasterland "continued to lead [him] to believe" that she would soon obtain financing from UCSD and repay the $80,000. These statements contain no specific facts about what Gaasterland actually said or did to cause him to "trust" her or "to lead him to believe" that she agreed to treat the $80,000 transfer as a loan secured by second deed of trust on the Del Mar property. From Sorge's declaration, "it is impossible to determine what was said or by whom or in what manner." (Goldrich, supra, 25 Cal.App.4th at p. 783.) To prove fraud, Sorge must state "facts which 'show how, when, where, to whom, and by what means the representations were tendered.' " (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) His generalized and conclusory assertions about what Gaasterland implied, what he understood her to mean, or what he subjectively believed or expected she would do, do not establish a promise by her of sufficient clarity and definiteness to support a promissory fraud claim. (See Lazar, supra, 12 Cal.4th at p. 645 ["general and conclusory allegations do not suffice" for fraud]; Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1389-1390, 1392 (Eisenberg) [plaintiff's "assertion that he understood respondents to imply he would not be terminated without good cause" and that he "subjectively believed he would have more job security" were " 'conclusory' " and did not support claim for false promise not to terminate plaintiff except for good cause]; Conrad, supra, 45 Cal.App.4th at p. 156 [plaintiff's "understanding or expectation that [the defendant] would extend a loan is not sufficient to establish an agreement to make a loan"].)
The e-mail exchange between the parties in January 2004 to which Sorge refers in his declaration contains no promise by Gaasterland to treat the $80,000 transfer as a secured loan. In a message to Gaasterland, Sorge wrote, "You will agree that if you [do certain things, ] you will refund the $80,000 plus interest to Biosense...." Responding nearly a year later, Gaasterland wrote, "We have agreed to develop a plan, along the lines of a 'contract', for moving forward in our relationship...." Gaasterland also copied the "terms" stated in Sorge's initial e-mail message, as he had requested her to do; invited Sorge to "revisit them and update as [he] wish[ed]"; and then proposed some additional "terms" of her own. In this e-mail exchange, Gaasterland did not agree to repay the $80,000 with interest; she made a counteroffer, which is "a refusal to perform in accordance with the terms of [Sorge's] offer." (Superior Bedding Co. v. Erenberg (1961) 193 Cal.App.2d 86, 90.) Further, neither party mentioned the execution of a second deed of trust on the Del Mar property. These e-mails are no more than an exchange of proposals; they did not create an enforceable promise by Gaasterland to repay the $80,000 or to execute a second deed of trust on the Del Mar property. (See Civ. Code, § 1550 [contract requires consent]; Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 60-61 [no enforceable agreement until parties consent to same terms].)
Sorge's further assertion in his declaration that while he and Gaasterland were at a Colorado ski resort in January 2007 she "agreed that [they] could convert" (italics added) Biosense's 10 percent ownership interest in the Del Mar property to a promissory note secured by the property also does not create a triable issue of fact on the promissory fraud claim. An assurance that Gaasterland could do something is not a promise to do that thing. (See Black's Law Dict. (9th ed. 2009) p. 1332, col. 1 [defining "promise" as "a person's assurance that the person will or will not do something" (italics added)].) That Gaasterland made no promise is confirmed by the subsequent communications Sorge had with his lawyer regarding the parties' discussion at the ski resort. Sorge informed his lawyer that he was "leaning toward making this an actual 2nd mortgage" rather than "an unsecured, personal loan" and that he would confer with Gaasterland and"get back [to his lawyer] with the exact details on the loan shortly." (Italics added.) Thus, while they were in Colorado skiing together, neither party made any promise to do anything regarding the $80,000 transfer. The parties' "exchange establishes nothing more than a willingness to consider future [transactions] and does not establish a fraudulent promise to [repay] a loan." (Conrad, supra, 45 Cal.App.4th at p. 156; cf. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 771 ["An amorphous promise to 'consider' [something] cannot rise to the level of a contractual duty."].)
ii. Dr. Jonas's Deposition Testimony Does Not Contain Sufficient Evidence of a Promise by Gaasterland That Would Support Sorge's Fraud Claim
Even less probative than anything contained in Sorge's declaration of a promise by Gaasterland to treat the $80,000 transfer as a secured loan is the deposition testimony of Dr. Jonas. In the excerpts Sorge submitted to the trial court, there was neither questioning nor testimony about a promise by Dr. Gaasterland to repay the $80,000 or to secure her repayment obligation by executing a deed of trust on the Del Mar property. The only portion of the testimony to which Sorge directs our attention is his question whether Gaasterland told Dr. Jonas the $80,000 transfer was "part of [the] business relationship" between Gaasterland and Sorge, and Dr. Jonas's response, "Yes." Sorge apparently contends that from this limited exchange, a reasonable trier of fact could infer that the $80,000 transfer was a secured loan and not, as Gaasterland testified, a gift. We disagree.
There are limits on what inferences may be drawn from circumstantial evidence in the context of a motion for summary judgment. The court must "determine what any evidence or inference could show or imply to a reasonable trier of fact." (Aguilar, supra, 25 Cal.4th at p. 856.) In particular, "[w]here, as here, the plaintiff seeks to prove an essential element of [his] case by circumstantial evidence, [he] cannot recover merely by showing that the inferences [he] draws from those circumstances are consistent with [his] theory. Instead, [he] must show that the inferences favorable to [him] are more reasonable or probable than those against [him]." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483; accord, Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.) Although a secured loan for $80,000 is consistent with a business relationship between the parties, a gift of that amount is also consistent with such a relationship, where, as here, the parties have a romantic or personal relationship as well. Without direct evidence of a promise by Gaasterland to repay the $80,000 or execute a second deed of trust on the Del Mar property as security for repayment, a trier of fact could not reasonably conclude the transfer was a secured loan simply because the parties had a business relationship. Dr. Jonas's testimony was therefore not sufficient to defeat Gaasterland's motion for summary judgment. (See Leslie G., at p. 483 [plaintiff "cannot survive summary judgment simply because it is possible" that defendant's negligence "might have" caused her injury]; Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161 ["When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork."].)
3. Gaasterland Was Entitled to Summary Adjudication of Sorge's Promissory Fraud Claim
Our independent review of the evidentiary materials submitted as part of the summary judgment motion reveals no legally sufficient evidence of promise by Gaasterland sufficient to support Sorge's fraud claim. We are aware, as Sorge reminds us, that "Sorge is entitled to have the evidence viewed in his favor, including all reasonable inferences from that evidence." (Code Civ. Proc., § 437c, subd. (c); Saelzler, supra, 25 Cal.4th at pp. 768-769; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 308, 324.) But we are also aware that we may reverse a summary judgment on the ground there is a triable issue of material fact "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850, italics added; see also McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 ["It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment."].) In this case, the applicable standard of proof requires evidence of a specific, clear, and unequivocal promise by Gaasterland to repay the $80,000 and to execute a second deed of trust on the Del Mar property to secure repayment. (Davis, supra, 8 Cal.2d at p. 681; Hills Trans. Co., supra, 266 Cal.App.2d at p. 708.) As we have explained, Sorge introduced no such evidence; he offered no direct evidence of a promise by Gaasterland to treat the $80,000 transfer as a secured loan and relied solely on inferences to be drawn from circumstantial evidence. A fraud claim, however, may not "be based on inference piled on inference." (Webb v. State Bar (1957) 47 Cal.2d 866, 871; see also Sheehan v. Adams (Tex.Ct.App. 2010) 320 S.W.3d 890, 893 [in fraud case, "a vital fact may not be established by piling inference upon inference"].)
We therefore disagree with Sorge that "[t]his court has reversed summary judgments in fraud cases based on similar showings." In Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, the parties submitted sharply conflicting direct evidence as to whether the defendants had made certain affirmative misrepresentations to the plaintiffs. (Id. at pp. 1491, 1505.) In Agosta v. Astor (2004) 120 Cal.App.4th 596, the defendant did not meet his initial burden on the fraud causes of action, and the burden never shifted to the plaintiff to raise a triable issue of material fact. (Id. at p. 606.) Here, by contrast, Gaasterland met her initial burden on the motion for summary judgment by negating the promise element of Sorge's fraud claim, and Sorge did not come forward with legally sufficient evidence of a promise.
In short, the evidence Sorge submitted in opposition to Gaasterland's summary judgment motion "is not the stuff of which a fraud claim is made." (Goldrich, supra, 25 Cal.App.4th at p. 782.) There was no triable issue of fact on the essential promise element of his fraud claim, and Gaasterland was entitled to summary adjudication. (Code Civ. Proc., § 437c, subd. (o)(1) [cause of action has no merit if essential element cannot be established]; Eisenberg, supra, 74 Cal.App.4th at pp. 1392-1393 [affirming summary judgment on promissory fraud claim when plaintiff had no evidence of promise].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.