Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS03165
HULL, J.This case involves a dispute between two brothers over an alleged breach of contract for the sale of a house. The trial court concluded that no contract existed because the parties never reached agreement on the terms of the sale, and it therefore granted summary judgment in favor of defendants Louis and Donna Hampton. Plaintiffs Gregory and Patricia Hampton appeal from the ensuing judgment. We affirm.
SUMMARY JUDJEMENT STANDARD
As this court succinctly described, “[s]ummary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. [Citations.] We construe the moving party’s papers strictly and the opposing party’s papers liberally. [Citation.] The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. [Citations.]
“However, ‘[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law. . . . There is a genuine 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.’ [Citation.] On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law.” (Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, 457; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.)
“For practical purposes, an issue of material fact is one which, in the context and circumstances of the case, ‘warrants the time and cost of factfinding by trial.’ [Citation.] In other words, not every issue of fact is worth submission to a jury. The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375.)
Facts and Proceedings
This case involves two couples, defendants Louis and Donna Hampton, who owned a house, and plaintiffs Gregory and Patricia Hampton, who wanted to buy it. Louis and Gregory are brothers.
Plaintiffs and defendants first executed a real estate lease, effective May 14, 1998, and signed May 17 and 18, 1998. Under this agreement, plaintiffs were to rent the house from defendants for $1,160.00 per month. The lease term ran from June 15, 1998 to June 30, 1999.
The parties discussed the possibility of plaintiffs buying the house from defendants. A “Purchase Option Addendum” was prepared, providing in part: “[Defendants] and [plaintiffs] acknowledge and agree that the property is currently valued at $160,000. [Defendants are] willing to sell property at a discount to [plaintiffs] at a price of $150,000.00. [Plaintiffs and defendants] agree to share 50/50% future equity in premises from the time of this agreement until [plaintiffs] refinance [the] property. [Plaintiffs] shall have approximately $100.00 per month of the Lease payment of $1160.00 credited towards the down payment.” The agreement set forth the procedures for exercising the option. However, this document was not dated and was never signed.
At some point, the parties signed another document, entitled “Real Estate Purchase,” (the Purchase Agreement) with the same effective date as the lease, May 14, 1998. Under this agreement, defendants agreed to sell plaintiffs the house, but the agreement did not specify a purchase price. It provided only that the purchase term would begin on June 13, 1998 and that plaintiffs were to pay monthly payments of $1,160, the same amount specified in the rental agreement. The agreement did not specify how long these payments were to continue.
This agreement also included a clause providing that “[t]his Purchase Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Purchase may be modified or amended in writing if the writing is signed by the party obligated under the amendment.”
Again at some unspecified point, the parties prepared an amortization schedule, showing payments of $1,100.65 per month for 360 months on a loan of $150,000 at an 8 percent interest rate. This document bears a fax date of May 17, 1998. This schedule is not referenced in the Purchase Agreement, nor is it signed by the parties.
Approximately six years later, the parties began to negotiate the sale of the house, and exchanged numerous e-mails. One document, undated but showing a fax date in June 2004, is signed by all parties, and states: “We Louis & Donna Hampton hereby offer the property . . . to Greg and Patricia Hampton ‘AS IS’ for the sum of $203,000. Greg and Patricia Hampton will be paying all closing cost[s].”
Plaintiffs opened escrow and had escrow/sale documentation prepared showing a purchase price not of $203,000, but of $268,000 with a credit to plaintiffs of $65,000 in gift equity. Defendants refused to sign these papers. Not only did this not comport with their understanding of the parties’ agreement, but they did not want to incur the increased capital gains and gift taxes associated with the higher purchase price and gift equity.
The escrow company prepared alternative versions of sales documents, with different sales amounts and/or credits. For example, one showed a purchase price of $211,000 with a gift equity credit to plaintiffs of $7,500. Defendants refused to execute these documents as well.
In their third amended complaint, plaintiffs sought to enforce a sale for $150,000. They alleged causes of action for breach of contract, specific performance and promissory estoppel. Two exhibits were attached to the complaint. Exhibit A included both the May 14 Purchase Agreement and the amortization schedule. Exhibit B was the signed document showing an agreed-to purchase price of $203,000.
The complaint alleged that the Purchase Agreement was “the culmination of an exchange of proposals back and forth from [defendants] to [plaintiffs]. The complaint continued: “In or around May 1998, Plaintiffs and Defendant[s] agreed to a purchase price of $150,000.00. Subsequently, Plaintiffs and Defendants, began drafting the Purchase Agreement. [¶] . . . The Purchase Agreement, Exhibit A attached hereto, is the result of several drafts between the parties. Exhibit A, including the Amortization Schedule, is a complete agreement of the parties. [¶] . . . The parties executed the Purchase Agreement sometime prior to Plaintiffs moving into the subject real property. Plaintiffs moved into the subject real property sometime in June 1998.”
The complaint’s first cause of action for breach of contract alleged that “[d]efendant[s] refused to sign the documents needed to consummate the sale, insisting, instead, that Plaintiff[s] execute a new agreement in escrow for $203,000.00.” Plaintiff referenced Exhibit B, the signed document indicating a purchase price of $203,000, and alleged, “Plaintiff[s have] requested that defendants perform their obligations under the purported new agreement and sign the documents necessary to sell the house and transfer title into Plaintiff[s’] name[s]. [¶] . . . Defendant[s have] repudiated both agreements by refusing to sign escrow documents to accept Plaintiff[s’] lump sum payment and refuse[] to transfer title into Plaintiff[s’] name[s].” The complaint continued: “Plaintiff[s] seek[] enforcement of the May 14, 1998 Purchase Agreement.”
A second cause of action for specific performance was based on the same facts.
The third cause of action for promissory estoppel alleged that “Defendant[s] promised and assured Plaintiff[s] that Defendant[s] would convey title of the property to Plaintiff[s] if Plaintiff[s] secured full payment of the agreed price of $150,000.00 less payments made based upon a thirty year amortization period at 8% interest.” Plaintiffs alleged that they relied on these assurances and that their reliance was reasonable.
They asked that “[d]efendants be ordered to accept payoff from Plaintiff[s] based upon the original installment agreement” and to complete the conveyance to plaintiffs.
Defendants moved for summary judgment, asserting there was no contract to be enforced. They noted that the Purchase Agreement did not include a purchase price or indicate when the sale would occur. Defendants argued that the amortization schedule was not part of the initial agreement and did not cure these deficiencies because the Purchase Agreement stated it represented the full agreement of the parties and could be modified only by written agreement. They pointed out that even if the amortization schedule was considered part of the contract, the agreement did not meet the requirements for an installment sales contract under Civil Code section 2985.5 because it did not indicate the number of years to complete payment or the basis for any tax estimates.
Defendants argued that the absence of necessary terms compelled summary adjudication in their favor on the causes of action for breach of contract and specific performance. They asserted that the same was true for the third cause of action for promissory estoppel. They contended that promissory estoppel cannot be utilized to create an agreement where there was never a meeting of the minds. They also noted that even if there had been agreements to sell the house for $203,000 or $150,000, the undisputed facts demonstrated that plaintiffs set up escrow on completely different terms, with a purchase price of $268,000 and a credit for $65,000 in gift equity. This conduct, according to defendants, demonstrated that plaintiffs had not relied on the agreement they were now seeking to enforce.
The trial court granted defendants’ motion, concluding there was no basis to enforce a sale for $150,000. The court commented, “Plaintiff does not dispute that the escrow papers, which he drew up, set the purchase price at $268,000. . . . This fact alone defeats his claim that the purchase price of $150,000 must be enforced. . . . Even if defendant agreed to a price of $268,000, this defeats plaintiff’s claim that the sales price was $150,000.”
The court noted that e-mails between plaintiffs and defendants that referred to “misunderstandings” between the parties demonstrated that there was no meeting of the minds on the material terms of any sale.
The court added: “Based on the undisputed facts that plaintiff demanded a purchase price of $268,000 in escrow (with a ‘gift equity’ of $63,000 bringing the price to $203,000), and his admission at his deposition that he never agreed to any equity split, he cannot prevail on any of his claims that the property should be sold for $150,000. The court cannot enforce an agreement to sell real property when there are three conflicting sales prices. The moving target nature in which plaintiff’s claims have developed through the pleadings and in opposing this motion do not raise any reasonable inference from which a trier of fact could infer that the sales price was $150,000. To the contrary, plaintiff’s evidence only further supports defendant’s defense that the brothers never reached an agreement to sell the property for $150,000.”
The court concluded: “The real dispute in this case appears to be over how the ultimate sales transaction was structured once the parties agreed on the second price of $203,000. However, the plaintiff’s pleadings are not framed as such and the court is confined to the pleadings in ruling on a motion for summary judgment. Even if the complaint were amended to seek to enforce a sales price of $203,000, the motion would be granted since it is undisputed Plaintiff set the sales price in escrow of $268,0000 (the appraised value), which finds no support in any written agreement of the parties and constitutes a material breach of any agreement to sell for $203,000, thereby excusing defendants from performing.”
The court also concluded specific performance was unavailable to plaintiffs because there was no valid and binding agreement to be enforced.
The court entered judgment in favor of defendants, and plaintiffs appeal.
Discussion
I
Breach of Contract
Plaintiffs’ first cause of action was for breach of contract. Under this theory, “the plaintiff must demonstrate a contract, the plaintiff’s performance or excuse for nonperformance, the defendant’s breach, and damage to plaintiff.” (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243.) As the first step in proving breach of contract, plaintiffs must establish that a contract in fact existed.
A valid contract for the sale of real property requires (1) a seller, (2) a buyer, (3) a price, (4) the time and manner of payment, and (5) a sufficient description of the property. (Blackburn v. Charnley (2004) 117 Cal.App.4th 758, 766.) It is the third element, price, that lies at the heart of this appeal.
“California law is clear that there is no contract until there has been a meeting of the minds on all material points.” (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357-358.) “Mutual intent is determinative of contract formation because there is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense. . . . [T]he failure to reach a meeting of the minds on all material points prevents the formation of contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract.” (Id. at pp. 358-359, italics omitted.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.)
“‘The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.’ [Citation.] . . . If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation. [Citations.]
“In order for acceptance of a proposal to result in the formation of a contract, the proposal ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ [Citation.] A proposal ‘“cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain. [¶] . . . The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach for giving an appropriate remedy.”’ [Citation.] If, by contrast, a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract. [Citations.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)
Plaintiffs’ complaint was based on an alleged written agreement for the purchase and sale of property, the May 14 Purchase Agreement. This agreement, as noted earlier, did not indicate any purchase price. It provided only for monthly payments of $1,160 for an unspecified period of time. It also stated: “This Purchase Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Purchase may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.”
Plaintiffs’ third amended complaint alleged that this Purchase Agreement was the result of “several drafts between the parties. [The Purchase Agreement], including the Amortization Schedule, is a complete agreement of the parties.” It is the amortization schedule, plaintiffs claim, that established the purchase price of $150,000.
There are several fatal problems with plaintiffs’ position. First, the Purchase Agreement and amortization schedule do not form a valid installment purchase contract under Civil Code section 2985.5. Under this statute, such a contract must contain a statement of the number of years required to complete payment in accordance with the contract terms (Civ. Code, § 2985.5, subd. (a)), and a statement of the basis upon which a tax estimate is based. (Civ. Code, § 2985.5, subd. (b).) The Purchase Agreement and amortization schedule contain neither required statement.
However, there is a much more fundamental problem: there is no evidence that these two documents were intended to form one integrated agreement. In fact, the evidence points to the contrary.
The Purchase Agreement clearly and unambiguously stated it represented the complete agreement of the parties and that any modification required a writing signed by the parties. “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code, § 1638.) The Purchase Agreement made no mention of the amortization schedule, and the amortization schedule was not signed by the parties.
Perhaps most importantly, there is no evidence that the parties ever agreed to a sale on the terms plaintiffs now claim, namely, a sale for $150,000. Defendants asserted their initial agreement was for a sale price of $150,000 plus a portion of the appreciated value of the property as outlined in a Purchase Option Addendum. Plaintiffs initially denied having agreed to these terms and never mentioned this addendum in their complaints. However, in their opposition to defendants’ motion for summary judgment, plaintiffs expressly stated that the Purchase Agreement was executed “after inclusion of an amortization schedule and a purchase option addendum,” and asserted that the $150,000 price was “provided for in the purchase option addendum and the amortization schedule.” (Italics added.) In their appellate briefing, plaintiffs also cite the purchase option agreement as evidence of the $150,000 sales price. But that agreement, now relied upon by plaintiffs, called not only for a price of $150,000 but also a division of the profits. The addendum contradicts plaintiffs’ claim that there was an agreement to sell the property for $150,000 without any other conditions.
Moreover, the parties later signed an agreement for the sale of the property at $203,000, also contradicting plaintiffs’ claim that the parties had agreed to a price of $150,000. To complicate matters even further, plaintiffs established an escrow for yet another amount, setting a purchase price of $268,000 with a $65,000 gift credit to themselves.
These undisputed facts establish that there was no meeting of the minds as to a sales price. Without a meeting of the minds, there was no contract. And without a contract, there was, of course, no basis for a claim of breach. Defendants were entitled to summary adjudication on this cause of action.
II
Specific Performance
Plaintiffs’ second cause of action for specific performance fares no better.
A court cannot specifically enforce an agreement whose terms “are not sufficiently certain to make the precise act which is to be done clearly ascertainable.” (Civ. Code, § 3390, subd. (5).) “In determining whether the material factors in a contract are sufficiently certain for specific performance, ‘the modern trend of the law favors carrying out the parties’ intention through the enforcement of contracts and disfavors holding them unenforceable because of uncertainty. . . . The defense of uncertainty has validity only when the uncertainty or incompleteness of the contract prevents the court from knowing what to enforce.’” (Blackburn v. Charnley, supra, 117 Cal.App.4th at p. 766.)
As already discussed, there is no evidence that the parties agreed to a sale of the property for $150,000, the terms plaintiffs sought to enforce. Given this uncertainty, plaintiffs cannot prevail on a cause of action for specific performance, and defendants are entitled to summary adjudication.
III
Promissory Estoppel
Plaintiffs’ complaint included a third cause of action for promissory estoppel. Under this doctrine, “[o]ne who makes a promise upon which another justifiably relies may be bound to perform it, despite lack of consideration; i.e., the estoppel is a substitute for consideration.” (1 Witkin, Summary of Cal. Law (9th ed. 1987), Contracts, § 248, pp. 249-250.)
In order to invoke promissory estoppel, there must first be a clear and unambiguous promise. (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185-1186.) But as our previous discussion makes clear, there was no evidence to support plaintiffs’ claim that defendants promised to sell them the property for $150,000. Without such a promise, promissory estoppel is inapplicable.
Additionally, there is no evidence that plaintiffs’ relied on any promise to sell the property for $150,000. To the contrary, the undisputed evidence shows that plaintiffs’ signed an agreement to purchase the house for $203,000, but then established escrow for $268,000 with a $65,000 gift credit. Given this action, plaintiffs’ cannot claim to have relied on a $150,000 purchase price.
Summary adjudication was proper on this cause of action as well.
Because no triable issues of fact remain as to any of plaintiffs’ causes of action, the trial court properly entered summary judgment in favor of defendants.
Disposition
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur: DAVIS, Acting P.J., CANTIL-SAKAUYE, J.