1

Filed 6/27/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ANNE BROOME et al.,

Plaintiffs and Appellants,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

 A160591

 (Alameda County

 Super. Ct. No. RG14744056)

Anne Broome and William Gurtner (Plaintiffs), retired employees of the 

University of California (University), sued the University’s governing body, 

the Board of Regents (Regents), for breach of contract, promissory estoppel, 

and related claims, alleging Regents violated an obligation to provide them 

with certain pension benefits. The trial court issued judgment in favor of 

Regents and Plaintiffs appeal. We affirm.

FACTUAL BACKGROUND

The 1999 Resolution

The University of California Retirement Plan (UCRP or Plan) is a 

defined benefit plan “subject to federal tax laws in the administration of 

benefits accruing to its members.” In January and February 1999, the 

University’s President (President) addressed the Regents’ Committee on 

Finance regarding two federal tax law limitations on benefits that could be 
2

paid by the Plan. The limitation relevant here imposed, for employees hired 

after a certain date, a “maximum compensation amount that can be used for 

retirement calculations”—at that time, $160,000—such that employees 

earning more than the maximum “cannot receive benefits based on the full 

compensation that UCRP would otherwise use for benefit calculations.”1 The 

President reported the limitations “are a significant deterrent to recruitment 

and retention of faculty, staff, administrators, scientists, and engineers.” 

The President recommended that, “[t]o remain competitive in the 

recruitment and retention of employees,” the University should take 

advantage of recent amendments to the Internal Revenue Code making it 

possible for public institutions to “mitigate” the limitations. As to the 

maximum compensation limitation, the University could “amend[] UCRP to 

add a provision to restore benefits that may be lost due to [the limitation], 

using existing UCRP assets. Providing restoration of benefits through UCRP 

is contingent upon IRS approval.” Regents were advised that the cost of this 

amendment “will not have a material effect on the Plan assets or liabilities.” 

Accordingly, the President proposed, and the Finance Committee 

approved for presentation to the full Regents, a resolution approving the 

establishment of benefit restoration plans. At the Regents’ February 1999 

meeting, Regents adopted the following resolution (hereafter, the 1999 

Resolution):

“A. Approval be granted to establish plans, effective January 1, 2000, 

to restore to University of California faculty and staff, including Department 

of Energy Laboratories scientists and engineers, the University of California 

1 The second limitation imposed a maximum annual limit on the 

amount of benefits that could be paid by a retirement plan. 
3

Retirement Plan (UCRP) benefits earned but denied due to Internal Revenue 

Code limitations.

“B. These UCRP benefits also be provided to affected UCRP members 

who retired before the effective date of the restoration plans.

“C. Implementation of the restoration plans be delegated to the 

President, with the concurrence of the Chair[] of the Board and the Chair[] of 

the Committee on Finance.”2

Appendix E

Following Regents’ approval of the 1999 Resolution, the President’s 

Office drafted a Plan amendment, referred to as Appendix E, to restore the 

benefits impacted by the maximum compensation limit. Appendix E was a 

16-page document with detailed provisions about calculation of the benefit, 

form of the benefit, benefits for members who are reappointed after 

retirement, and disability and preretirement survivor benefits. Appendix E 

provided for Regents’ unlimited right to amend or terminate Appendix E, and 

the right of the President, with the concurrence of the Chairs, to add or delete 

employees from Appendix E’s list of members. Appendix E provided, “no 

person, including any Appendix E Member, has any ‘vested rights’ under 

state or federal law in any benefits that may be provided for under this 

Appendix E,” with the exception of those members who are “employee[s] of 

the University upon or after attainment of age 60” and identified by 

Appendix E as a member. 

In June 1999, the University submitted Appendix E to the IRS for 

approval. In December 1999, the IRS put a hold on the determination 

pursuant to a moratorium on certain kinds of requests for approval. 

2 We refer to the Chairs of the Board and the Committee on Finance

collectively as “the Chairs.”
4

Subsequent Events

The President’s office, in addition to drafting Appendix E, developed a 

plan to restore benefits impacted by the other federal tax law limitation 

addressed by the 1999 Resolution (ante, fn. 1). This plan did not require IRS 

approval. In February 2000, the President submitted the plan to the Chairs 

for their review, the Chairs approved the plan, and it was subsequently 

implemented. 

In January 2007, the IRS moratorium on certain kinds of requests for 

approval ended. In November 2007, the IRS approved Appendix E. 

In late 2008, the Chairs, along with the President, decided not to 

implement Appendix E or any other version of a restoration plan for benefits 

reduced by the maximum compensation limitation. 

On March 29, 2012, Regents rescinded the 1999 Resolution’s 

authorization of a restoration plan for benefits reduced by the maximum 

compensation limitation. 

PROCEDURAL BACKGROUND

In 2014, Plaintiffs sued Regents on behalf of themselves and similarly 

situated Plan members who retired between January 1, 2000, and March 29, 

2012. Plaintiffs alleged claims for impairment of contract, promissory 

estoppel, equitable estoppel, breach of fiduciary duty, breach of contract, 

breach of the covenant of good faith, and declaratory relief. Judgment on the 

pleadings was granted for Regents as to the equitable estoppel claim, class 

certification was denied as to the promissory estoppel claim, and a class was 

certified as to the remaining claims.

Regents filed a motion for summary judgment/adjudication, which the 

trial court granted except as to Plaintiffs’ claims for promissory estoppel and 
5

declaratory relief.3 Following a bench trial on Plaintiffs’ individual 

promissory estoppel claims, the trial court issued a statement of decision 

finding against Plaintiffs on those claims as well as their derivative 

declaratory judgment claims. Judgment issued for Regents. 

DISCUSSION

I. Breach of Contract 

Plaintiffs challenge the trial court’s ruling granting summary 

adjudication for Regents on Plaintiffs’ contract claim. Plaintiffs contend the 

1999 Resolution created enforceable contractual rights.

“The trial court’s ruling on a motion for summary adjudication, like 

that on a motion for summary judgment, is subject to this court’s 

independent review.” (Serri v. Santa Clara University (2014) 

226 Cal.App.4th 830, 858.) “In undertaking our independent review, we 

apply the same three-step analysis used by the trial court. First, we identify 

the issues framed by the pleadings. Second, we determine whether the 

moving party has established facts justifying judgment in its favor. Finally, 

in most cases, if the moving party has carried its initial burden, we decide 

whether the opposing party has demonstrated the existence of a triable issue 

of material fact. [Citation.] [¶] In performing our review, we view the 

evidence in a light favorable to the losing party . . . , liberally construing [the 

losing party’s] evidentiary submission while strictly scrutinizing the moving 

party’s own showing and resolving any evidentiary doubts or ambiguities in 

the losing party’s favor.” (Id. at pp. 858–859.)

3 The trial court’s order also denied a motion for summary judgment 

filed by Plaintiffs. 
6

A. Legal Background

“ ‘[T]he terms and conditions of public employment, unlike those of 

private employment, generally are established by statute or other comparable 

enactment (e.g., charter provision or ordinance) rather than by contract.’ 

[Citation.] For this reason, public employees have generally been held to 

possess no constitutionally protected rights in the terms and conditions of 

their employment.” (Cal Fire Local 2881 v. California Public Employees’ 

Retirement System (2019) 6 Cal.5th 965, 977, fn. omitted (Cal Fire).) It is a 

“fundamental principle that the terms and conditions of public employment, 

to the extent those terms and conditions derive from legislative enactments, 

are not generally protected by the contract clause from repeal or revision at 

the discretion of the legislative body.”4 (Id. at p. 978.) 

There are “two exceptions to the general rule permitting legislative 

modification of statutory terms and conditions of public employment. The 

first, applicable to statutorily created employment rights generally, affords 

the protection of the contract clause to statutory terms and conditions of 

public employment when the statute or ordinance establishing the benefit 

and the circumstances of its enactment clearly evince a legislative intent to 

create contractual rights. The second exception, which this court has 

historically extended primarily to pension rights, protects certain benefits of 

public employment by implication, even in the absence of a clear 

manifestation of legislative intent.” (Cal Fire, supra, 6 Cal.5th at pp. 978–

979.)

4 “Regents have rulemaking and policymaking power in regard to the 

University; their policies and procedures have the force and effect of statute.” 

(Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165.)
7

B. Clear Intent to Create Contractual Rights

Under the first exception, “ ‘[a]lthough the intent to make a contract 

must be clear, our case law does not inexorably require that the intent be 

express. [Citation.] . . . Where, for example, the legislation is itself the 

ratification or approval of a contract, the intent to make a contract is clearly 

shown.’ ” (Cal Fire, supra, 6 Cal.5th at p. 980.) Cal Fire discussed such a 

case, Retired Employees Assn. of Orange County, Inc. v. County of Orange

(2011) 52 Cal.4th 1171 (Retired Employees), in which a county “had entered 

into a series of express contracts with its employees, in the form of MOUs, 

relating to their terms and conditions of employment,” and “[e]ach of these 

MOUs had been ratified by a resolution of the board of supervisors.” (Cal 

Fire, at p. 980.) As Cal Fire explained, “it was critical to Retired Employees’

holding that the legislative enactment on which the implied contractual 

rights were premised was a resolution approving an express contract of 

employment.” (Id. at p. 981.) 

In Cal Fire itself, public employees challenged the repeal of a statute 

granting them the opportunity to purchase retirement service credit and 

thereby receive pension benefits calculated on the basis of more public 

employment time than they actually worked.5 (Cal Fire, supra, 6 Cal.5th at 

p. 970.) In contrast with the county’s contract ratification in Retired 

Employees, “Nothing of the sort occurred in connection with the opportunity 

to purchase [retirement service] credit. The Legislature did not engage in 

any sort of negotiation with the public employees covered by [the statute], let 

alone ratify an express or implied contract reflecting its terms. The 

Legislature simply enacted a statute granting the opportunity to purchase 

5 Employees who had already purchased service credit were not 

impacted by the repeal. (Cal Fire, supra, 6 Cal.5th at p. 981.)
8

[such] credit. . . . [S]uch statutes, which announce a policy rather than create 

a contract, ‘ “are inherently subject to revision and repeal.” ’ ” (Cal Fire, at 

p. 981.) 

The circumstances surrounding the 1999 Resolution are akin to those 

in Cal Fire, and entirely unlike those in Retired Employees. The 1999 

Resolution did not ratify a contract or follow negotiations with public 

employees. Indeed, there is less evidence of an intent to create contractual 

rights than in Cal Fire because the 1999 Resolution did not even implement 

any employee benefits; instead, it simply granted “[a]pproval . . . to establish 

plans” (italics added), belying any clear intent to create contractual rights by 

virtue of the 1999 Resolution alone. 

Moreover, by its own terms, the 1999 Resolution delegated a future 

implementation to the President, “with the concurrence of” the Chairs.

Plaintiffs argue the concurrence provision is ambiguous, either on its face or 

in light of extrinsic evidence,6 as to whether the 1999 Resolution granted the 

Chairs “discretion with regard to the specifics of implementation of the

Regents’ policy” or whether it authorized them to “mak[e] a judgment as to 

whether to implement that policy at all.” Even assuming the former, the 

1999 Resolution expressly contemplated further review and action before any 

employee benefit was in fact provided, and therefore does not clearly evince 

an intent to create contractual rights.

6 We reject Regents’ assertion that Plaintiffs forfeited reliance on 

extrinsic evidence. Plaintiffs relied on extrinsic evidence in their opposition 

to Regents’ summary judgment/adjudication motion below, the grant of which 

is before us. 
9

C. Implied Contractual Rights

“[A] contractual right to receive pension benefits is implied, despite 

their statutory foundation, because they constitute a form of deferred 

compensation. . . . [A] public employee ‘is not fully compensated upon 

receiving . . . salary payments because, in addition, [the employee] has then 

earned certain pension benefits, the payment of which is to be made at a 

future date. While payment of these benefits is deferred, and is subject to the 

condition that the employee continue to serve for the period required by the 

statute, the mere fact that performance is in whole or in part dependent upon 

certain contingencies does not prevent a contract from arising, and the 

employing governmental body may not deny or impair the contingent liability 

any more than it can refuse to make the salary payments which are 

immediately due.’ [Citation.] Given their character as deferred 

compensation, the receipt of legislatively established pension benefits is 

protected by the contract clause, even in the absence of a manifest legislative 

intent to create contractual rights.” (Cal Fire, supra, 6 Cal.5th at pp. 984–

985.) “[T]he receipt of pension benefits is granted constitutional protection 

because the benefits constitute a portion of the compensation awarded by the 

government to its employees, paid not at the time the services are performed 

but at a later time.” (Id. at p. 985.)7

Various cases illustrate this principle. In Kern v. City of Long Beach

(1947) 29 Cal.2d 848 (Kern), when the petitioner began city employment, the 

city charter provided for pensions under specified terms. (Id. at p. 850.) The 

Supreme Court held the petitioner had an implied contractual right to this 

7 “[E]lements of public employee compensation other than pension 

benefits also may be entitled to this type of implied contractual protection,” 

for example, “earned salary.” (Cal Fire, supra, 6 Cal.5th at pp. 985–986.)
10

benefit such that the city could not, shortly before the petitioner completed 

the required years of service, eliminate pensions as to all employees not then 

eligible for retirement. (Id. at pp. 850, 856.) In Olson v. Cory (1980) 

27 Cal.3d 532 (Olson), a state statute provided for annual full cost-of-living 

increases for judicial salaries. (Id. at p. 536 & fn.1.) The Supreme Court held 

state judges “had a vested right not only to their office for a certain term but 

also to an annual increase in salary” during that term pursuant to the state 

statute, such that the Legislature could not limit the cost-of-living increases

for terms commenced when the statute was in effect. (Id. at pp. 538–540.) In 

Requa v. Regents of University of California (2012) 213 Cal.App.4th 213 

(Requa), the Court of Appeal held University retirees sufficiently pled an 

implied contract claim against the University for certain retirement health

benefits by alleging “the authorization of those benefits in 1961, the 

uninterrupted provision of those benefits for more than 50 years, and . . . the 

University’s publications assuring employees they would receive [these] 

benefits in retirement so long as they met certain eligibility requirements.” 

(Id. at p. 226.)

In Kern, Olson, and Requa, the benefit promised by the public employer 

was in effect during the employee’s employment. In contrast, the 1999 

Resolution did not itself implement restoration benefits—indeed, it did not 

even specify the terms of such benefits such that the parties could determine 

with precision any contractual obligation. Although Appendix E did provide 

such specifics, neither Appendix E nor any other version of a restoration 

benefit plan for the maximum compensation limit ever took effect.8 

8 Moreover, there is no evidence Plaintiffs or any other class members 

would have been entitled to benefits under Appendix E even if it had taken 

effect. Under Appendix E’s own terms, only identified “Members” were 
11

Accordingly, unlike the employees in the above cases, Plaintiffs never earned 

restoration benefits through their employment. (Cf. Fry v. City of Los Angeles

(2016) 245 Cal.App.4th 539, 550 [“ ‘ “By entering public service an employee 

obtains a vested contractual right to earn a pension on terms substantially 

equivalent to those then offered by the employer.” ’ ” (Italics added)].)

Plaintiffs argue the 1999 Resolution constituted an offer to provide 

restoration benefits in the future, which Plaintiffs accepted by their 

continued employment. Even so assuming, the 1999 Resolution expressly 

provided implementation of the benefits was conditioned on an event that 

never occurred: the Chairs’ concurrence in an implementation plan proposed 

by the President. Plaintiffs point to extrinsic evidence they contend shows 

that the only condition of the 1999 Resolution’s offer of restoration benefits 

was IRS approval. As an initial matter, we question whether the evidence 

can reasonably be so construed.9 In any event—and even assuming the 

eligible for benefits, and Appendix E left it to the President’s “sole discretion,” 

with the concurrence of the Chairs, to add to or delete from that category. 

Although Plaintiffs claim Regents stipulated they “would have received the 

benefit but for the Regents’ breach of contract,” the cited stipulation is only to 

certification of a class of retirees “whose retirement benefits were reduced as 

a result of” the maximum compensation limit. 

9 Much of the relied-upon evidence consists of University statements or 

communications about the need to obtain IRS approval for the restoration 

benefit plan without mentioning the need to obtain the Chairs’ concurrence: 

(1) a February 1999 website posting announcing the Regents “approved plans 

to restore” the benefits addressed in the 1999 Resolution, adding “[t]he plans 

are subject to Internal Revenue Service approval and would apply to UC 

faculty, staff and retirees from the date of implementation”; (2) notices posted 

before the June 1999 submission of Appendix E to the IRS announcing the 

University’s intent to seek IRS approval; (3) updates to the University’s 

Retirement System Advisory Board stating that “[a]doption and 

implementation of the provisions of Appendix E, and thus the ability to 
12

relied-upon evidence is admissible10—the contention is unavailing. The 1999 

Resolution contains express language setting forth the concurrence condition 

and “ ‘the law does not recognize implied contract terms that are at variance 

with the terms of the contract as expressly agreed or as prescribed by 

provide restoration of benefits through UCRP, is contingent upon IRS 

approval”; (4) the University’s conduct, prior to the IRS’s moratorium, of 

identifying employees who would be eligible for restoration benefits and 

preparing letters to them stating, “Assuming IRS approval, it is expected that 

the implementation date of these supplemental benefits will be January 1, 

2000”; (5) letters to new hires between 2000 and 2004 setting forth current 

benefits and stating, “no covered compensation in excess of [the current limit] 

will be included in the calculation of your UCRP retirement benefit,” but “an 

amendment to our Plan to permit payment of benefits generated in excess of 

the [federal tax law] limit is currently under consideration by the Internal 

Revenue Service. It is our hope that we will receive a favorable response this 

year”; and (6) a 2006 letter to a former University chancellor informing him 

that “[t]he University has no intention of pulling back its request [to the IRS] 

for a favorable determination [of Appendix E] at this time” and, if the IRS 

issued a favorable determination, “we would intend to provide all 

supplemental benefits authorized by the Appendix on a prospective basis.” 

These statements do not expressly negate the concurrence requirement or 

provide that a restoration benefit plan will definitively be implemented upon 

receipt of IRS approval. Plaintiffs also point to the inclusion of the costs and 

liabilities of Appendix E in the 2008, 2009, and 2010 “Actuarial Valuation 

Report” for the Plan, but these reports included the caveat that “Appendix E 

has not been implemented” and made no promise of future implementation or 

statement disavowing the concurrence requirement. Finally, Plaintiffs rely 

on Regents’ admission that in no other instance in which a policy or 

resolution delegated implementation to a University officer with the 

concurrence of one or more Regents was the policy not implemented. We are 

dubious that this constitutes evidence the concurrence requirement was in 

every instance simply a meaningless formality.

10 (See Rose v. County of San Benito (2022) 77 Cal.App.5th 688, 717, 

petn. for review pending, petn. filed May 20, 2022 [“the relevance of extrinsic 

evidence to prove legislative intent to confer an implied contractual right is 

closely related to the function of the legislative process and is defined 

according to the commonly recognized indicia of legislative intent”].)
13

statute.’ ” (Retired Employees, supra, 52 Cal.4th at p. 1181; see also Take Me 

Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1351 [“parol evidence may 

only be introduced to prove additional terms of the contract which are 

consistent with the express language of the written agreement”].)

Plaintiffs argue that, despite the express language in the 1999 

Resolution, the Chairs lacked discretion to decline to concur in the 

implementation plan. First, they point to a Regents bylaw providing the 

President and Chairs, “unless express authority shall be elsewhere conferred 

by order or resolution of [Regents], shall execute” policies approved by 

Regents. Plaintiffs argue that, because the concurrence provision appears in 

the same resolution that approved the restoration benefits policy, it is not 

authority conferred “elsewhere” for purposes of the bylaw, and therefore the 

Chairs were required to either implement the policy or go back to Regents. 

Plaintiffs’ construction of “elsewhere” would require Regents, if it wanted to 

confer any discretion in implementing a policy, to issue a resolution 

approving the policy and then issue a separate resolution conferring such 

discretionary authority—a pointless exercise for which there is no support in 

the text of the bylaw.

In addition, Plaintiffs argue extrinsic evidence shows the concurrence 

provision was included solely to avoid the appearance of a conflict of interest 

because the President would be eligible for restoration benefits, and the 

Chairs had no discretion to refuse their concurrence for any other reason. 

Plaintiffs’ evidence, construed in their favor, does not so demonstrate.11 

11 That Regents would so restrict the Chairs seems implausible. For 

example, the economic impact of restoration benefits on the Plan’s assets was 

discussed in the presentation to Regents before the 1999 Resolution was 

approved, indicating it was an issue of concern to Regents. It is incongruous 
14

Plaintiffs rely on comments recorded in the January 1999 Finance Committee 

minutes but, as Regents note, the comments related to an entirely different 

agenda item. Plaintiffs also point to statements by non-members of Regents 

about their understanding of the concurrence requirement: (1) the Director of 

Retirement Planning at the time the 1999 Resolution was passed averred 

that, based on “discussions in my Department at that time,” she understood 

“the concurrence was designed to avoid any appearance of conflict of 

interest”; and (2) the President from 2003 to mid-2008 averred that he did 

not understand the language “to mean that I had discretion to determine 

whether or not the [restoration benefit plan] should be implemented” but 

instead “was a logical step to address a potential conflict of interest.” These 

statements, even if admissible, are insufficient. “The subjective 

understandings of individuals, as well as understandings communicated 

outside the approval process, are not admissible as evidence of the [public 

employer’s] intent.” (Vallejo Police Officers Assn. v. City of Vallejo (2017) 

15 Cal.App.5th 601, 617 (Vallejo Police Officers).)12 We note that, even if the 

Regents would have chosen to prohibit the Chairs from withholding their 

concurrence had Regents anticipated the economic collapse that occurred.

12 Plaintiffs also point to deposition testimony of one of the plaintiffs, 

who attended the Finance Committee meetings leading up to the 1999 

Resolution, that in those meetings “[t]he only contingent aspect of [the 

restoration plan] was it was contingent on approval by the IRS.” Even 

assuming this testimony is sufficient to constitute evidence of Regents’ intent 

(but see Vallejo Police Officers, supra, 15 Cal.App.5th at p. 617 [the plaintiff 

“does not identify any statement made to or by the City Council in the course 

of its approval of the 2009 Agreement that constitutes clear evidence that the 

City Council intended to confer a vested right”]), it is not evidence that the 

concurrence requirement is only to consider conflicts of interest, but instead 

suggests there was no concurrence requirement at all. As stated above, 

Plaintiffs’ extrinsic evidence cannot vary the express terms of the 1999 

Resolution. (Retired Employees, supra, 52 Cal.4th at p. 1181.)
15

extrinsic evidence showed Regents anticipated or expected the Chairs would 

concur absent a concern about conflicts of interest, this still would not be 

equivalent to an intent to create contractual rights if the Chairs declined to 

concur for other reasons. 

“[I]mplied rights to vested benefits should not be inferred without a 

clear basis in the contract or convincing extrinsic evidence.” (Retired 

Employees, supra, 52 Cal.4th at p. 1191; see also Chisom v. Board of 

Retirement of Fresno County Employees’ Retirement Assn. (2013) 

218 Cal.App.4th 400, 414 [“[I]n order to prevent the governing body and the 

public from being ‘blindsided by unexpected obligations,’ the asserted 

contractual obligation must be clearly shown.”].) Plaintiffs’ evidence, 

construed in their favor, does not clearly show Regents intended to create 

contractual rights to restoration benefits even if the Chairs never concurred 

in a restoration benefit implementation plan.13 Regents have demonstrated 

Plaintiffs cannot establish breach of contract.14

II. Promissory Estoppel

In the trial court’s statement of decision following trial on Plaintiffs’ 

individual promissory estoppel claims, the court found, “Reliance on the 

13 Accordingly, we need not decide Plaintiffs’ various arguments that 

the trial court improperly limited or refused to consider extrinsic evidence. 

14 In their opening brief, Plaintiffs argue the trial court’s grant of

summary adjudication as to Plaintiffs’ other claims should be reversed if we 

reverse as to the breach of contract claim. To the extent Plaintiffs argue 

additional grounds for reversal in their reply brief, the arguments are 

forfeited. (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 

1066 [“ ‘ “ ‘points raised in the reply brief for the first time will not be 

considered, unless good reason is shown for failure to present them 

before’ ” ’ ”].) Because we are affirming the contract claim ruling, we will also 

affirm the ruling as to the other claims.
16

Regents’ vote on the 1999 Resolution is insufficient for promissory estoppel” 

because it is “not a clear and unambiguous promise . . . .”15 The court also 

found Plaintiffs failed to establish their claims for promissory estoppel based 

on other oral or written promises. On appeal, Plaintiffs challenge only the 

trial court’s ruling as to the 1999 Resolution.

“The elements of a promissory estoppel claim are ‘(1) a promise clear 

and unambiguous in its terms; (2) reliance by the party to whom the promise 

is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) 

the party asserting the estoppel must be injured by [that party’s] reliance.’ ” 

(US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901.) “To 

be enforceable, a promise need only be ‘ “definite enough that a court can 

determine the scope of the duty[,] and the limits of performance must be 

sufficiently defined to provide a rational basis for the assessment of 

damages.” ’ [Citation.] It is only where ‘ “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, [that] there is no contract.” ’ ” (Garcia v. 

World Savings, FSB (2010) 183 Cal.App.4th 1031, 1045 (Garcia).) 

Plaintiffs do not dispute that the 1999 Resolution alone is insufficient, 

but argue that Appendix E “embodied the definite scope of the obligations” 

under the 1999 Resolution, such that the “1999 Resolution and Appendix E 

had become enforceable after the sole condition of IRS approval had been 

satisfied.” Plaintiffs’ claim fails. The 1999 Resolution expressly conditioned 

15 The court similarly held in its order denying Regents’ motion for 

summary adjudication of the promissory estoppel claims, stating it was 

“finding a triable issue of fact on the basis of [Plaintiffs’] testimony about 

Respondent’s oral representations alone—that is, oral promises, not written 

ones.” 
17

the implementation of benefits on the Chairs’ concurrence in an 

implementation plan proposed by the President.16 Regardless of whether the 

concurrence was required for the decision to implement or how to implement, 

it is undisputed that the Chairs never concurred in Appendix E or any other 

implementation plan. Therefore, the condition set forth in the 1999 

Resolution did not occur.17

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

16 Plaintiffs argue extrinsic evidence shows the only condition was IRS 

approval. Even assuming the evidence so shows (but see fn. 9, ante), 

extrinsic evidence cannot be used to establish a written instrument was a 

promise for promissory estoppel purposes. “[U]nlike a party seeking to 

establish a promise in a pure breach of contract context, a party seeking to 

establish promissory estoppel cannot rely on extrinsic evidence to explain an 

ambiguous statement. [Citations.] . . . ‘[E]xtrinsic evidence is relevant . . . in 

interpreting a written instrument only if the instrument’s language is 

ambiguous . . . . It follows that if extrinsic evidence is needed to interpret a 

promise, then obviously the promise is not clear and unambiguous.’ ” 

(Garcia, supra, 183 Cal.App.4th at pp. 1044–1045.)

17 Plaintiffs argue we should reverse judgment on their declaratory 

relief claim if we reverse judgment on either their contract claim or their 

promissory estoppel claim. We are reversing neither, and therefore affirm as 

to the declaratory judgment claim.
18

SIMONS, J.

We concur. 

JACKSON, P. J.

BURNS, J. 

(A160591)
19

Broome et al. v. Regents of the University of California (A160591)

Trial Judge: Hon. Michael M. Markman

Trial Court: Alameda County Superior Court

Attorneys: 

Keller Rohrback LLP, Jeffrey Lewis and Rachel E. Morowitz; 

Law Office of Geoffrey V. White, Geoffrey V. White; Stember Cohn & 

Davidson-Welling, LLC Maureen Davidson-Welling and Vincent J. 

Mersich for Plaintiffs and Appellants.

Orrick, Herrington & Sutcliffe LLP, William D. Berry, Joseph C. 

Liburt, Eric A. Shumsky, and Lauren A. Weber for Defendant and 

Respondent.