Filed 1/30/24 Wilkes v. LA Clippers CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOHNNY WILKES,

Plaintiff and Appellant,

v.

LA CLIPPERS LLC et al.,

Defendants and Respondents.

 B324394

 (Los Angeles County

 Super. Ct. No. 20STCV47642)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Jon R. Takasugi, Judge. Affirmed. 

KRA Legal and Kenechi R. Agu for Plaintiff and Appellant.

Quinn Emanuel Urquhart & Sullivan, Duane R. Lyons and 

Dylan C. Bonfigli for Defendants and Respondents.

____________________
2

Plaintiff Johnny Wilkes sued defendants LA Clippers 

LLC (the Clippers) and Jerry West (West) (collectively, the

defendants) alleging causes of action for breach of contract and 

fraud, among others. The court granted the defendants’ motion 

for summary adjudication as to certain causes of action and 

sustained the defendants’ demurrer as to others without leave 

to amend. After the court entered judgment in favor of the 

defendants, Wilkes appealed. We affirm. 

FACTUAL SUMMARY AND PROCEDURAL HISTORY

A. The Second Amended Complaint

On December 14, 2020, Wilkes filed his complaint 

commencing the underlying action. He filed his second amended 

complaint on July 7, 2021, alleging causes of action against the 

Clippers and West for breach of contract, breach of the covenant 

of the implied covenant of good faith and fair dealing, and 

promissory estoppel. He alleged the following facts.

Dennis Robertson is the uncle of professional basketball 

player Kawhi Leonard. In 2019, Wilkes and Robertson were 

best friends. In April 2019, Leonard was under contract to play 

for the Toronto Raptors basketball team. Under the National 

Basketball Association’s (NBA) “tampering rule,” NBA teams are 

prohibited from negotiating with a player who is under contract 

with another team. Leonard’s contract with the Raptors was set 

to expire on June 30, 2019; thereafter he would be “a free agent” 

and able to sign with any team. (Capitalization omitted.)

West is “a consultant and/or executive of the Clippers,” 

and “an agent of the Clippers” with “the authority to enter 

into agreements and make decisions on behalf of the Clippers.” 

According to Wilkes, West was interested in recruiting Leonard 
3

to join the Clippers and sought to circumvent the tampering 

rule by communicating with Wilkes.

On April 10, 2019, Wilkes met with West, and West’s 

friends Sam Watson and Jim Gray, “for the sole purpose of 

asking for [Wilkes’s] assistance with getting . . . Leonard to 

sign with the Clippers.” Wilkes and West exchanged contact 

information and communicated frequently thereafter.

On June 25, 2019, Wilkes and West discussed by telephone

the Clippers’ interest in recruiting Leonard. The next day, West 

sent pictures to Wilkes by text message showing billboards of 

Leonard with the phrase, “King of SoCal. #KAWHI2LAC.” 

“LAC,” Wilkes explained, refers to the Clippers.

On June 28, 2019, Wilkes and West spoke by telephone. 

West asked Wilkes for his “assistance in getting . . . Leonard 

to sign with the Clippers. [Wilkes] agreed to assist . . . West and 

the Clippers provided that certain renumerations [sic] be paid 

upon . . . Leonard’s signing with the Clippers. Most notably, 

[Wilkes] told . . . West that he would only assist if . . . West and 

the Clippers agreed to pay him $2,500,000.00 for his services. . . . 

West assured [Wilkes] that they would take care of him and 

agreed to the terms.”

Wilkes thereafter “immediately went to work.” Among 

other actions, Wilkes informed Robertson that he “was in talks 

with . . . West and the Clippers regarding getting . . . Leonard to 

sign with the Clippers,” and gave Robertson’s cell phone number 

to West.

On July 1, 2019, West, Steve Ballmer (the owner of the 

Clippers), and Doc Rivers (the Clippers’ coach) were to meet 

with Leonard, Leonard’s mother, and Robertson. According to 

Wilkes’s complaint, West, Ballmer, and Rivers “didn’t know what 
4

to pitch to [Leonard]” at the meeting. Prior to the meeting, 

Wilkes spoke with West and provided West with “vital” 

information that West “needed to pitch to . . . Leonard.” 

Specifically, Wilkes told West to tell Leonard: (1) Leonard 

“will have a great life as a Clipper and after basketball if he 

signs with the Clippers”; (2) that the Clippers’ roster “possessed 

a great deal of upside and would be around for years to come”; 

and (3) the Clippers “will do whatever it takes to compete with 

the Los Angeles Lakers and Lebron James, such as acquiring 

another star to play alongside . . . Leonard; specifically Paul 

George.”

After the meeting, West “was extremely concerned” that 

Leonard was going to sign with the Lakers. Wilkes assured 

West, however, that West has nothing to worry about and that 

Wilkes “would do everything in his power to ensure that . . . 

Leonard signs with the Clippers.”

On July 7, 2019, Leonard “signed with the Clippers.”

On July 23, 2019, Wilkes met with West and West’s 

friends Watson and Gray at a restaurant. Wilkes “demanded 

the $2,500,000.00 that he and . . . West originally agreed upon.” 

West told Wilkes that he and the Clippers “would take care of 

him and honor their agreement.” West told Wilkes to email his 

request for payment to Gray. Wilkes set forth his request in 

writing and emailed it to Gray soon afterward.

West and the Clippers thereafter failed to pay Wilkes 

the $2,500,000 they had agreed upon.

The Clippers and West filed an answer to the second 

amended complaint in July 2021.
5

B. The Defendants’ Motion for Summary Judgment

and Summary Adjudication

In January 2022, the Clippers and West filed a motion 

for summary judgment or in the alternative for summary 

adjudication of the causes of action in the second amended 

complaint. West asserted that he is not liable for breach of

contract because he allegedly acted only as an agent for the

Clippers and did not make a personal promise to pay. The

Clippers asserted that West did not have actual or ostensible 

authority to enter into a contract on behalf of the Clippers. The 

defendants further argued that there was no agreement on all 

material points, and that Wilkes’s promissory estoppel cause 

of action fails because West never made a promise to pay him 

and, in any case, Wilkes cannot demonstrate reasonable reliance.

The Clippers and West submitted evidence supporting the 

following facts.

At all relevant times, Jerry West was a “consultant” 

for the Clippers. On April 10, 2019, Sam Watson, a friend of 

West’s, introduced Wilkes to West at the Staples Center arena 

during a basketball game. They did not discuss the possibility 

of Leonard joining the Clippers at that time.

Wilkes and West spoke by telephone on June 17 and 

June 25, 2019. According to West, during this time he wanted 

to learn more about “Leonard’s personality, work ethic, and 

interests”; he did not attempt or ask Wilkes to “attempt to 

solicit Kawhi Leonard to play for the LA Clippers.” According 

to Wilkes’s deposition testimony, they talked about how “Kawhi 

was a good kid and things like that.”

On June 26, 2019, West texted Wilkes a photo of a billboard 

that Clippers fans put up along a freeway that features a picture 
6

of Leonard with the heading, “ ‘King of SoCal’ ” and the hashtag, 

“#KAWHI2LAC.” West called Wilkes later that day and they 

spoke for three minutes. Wilkes then forwarded the pictures of 

the billboard to Robertson.

On June 28, 2019, Wilkes, West, and Watson spoke by 

telephone for about nine minutes. At that time, Wilkes was 

aware that West was a “consultant” with the Clippers, and not 

a general manager of the team.

Wilkes asserts that he and West entered into an oral 

contract during the June 28 call. West stated in a declaration 

that he did not promise to pay Wilkes any money either during 

that call or otherwise. When counsel asked Wilkes at his 

deposition what he told West during the June 28 call, Wilkes 

testified that he said he “wanted” or “needed to be compensated” 

for his “program,” and for “helping [West] get one of the best 

players in the NBA.” West and Watson “asked [Wilkes] how 

much.” Wilkes testified that he and Watson “talked about it, 

[$]2.5 [million], and after that they were saying, ‘We can’t give 

you cash,’ then we have to go through some 501 and things like 

that.”

Wilkes testified further as follows. 

“Q. Just so I’m clear, you said, ‘I want to be 

compensated’?

“A. Correct.

“Q. What was Jerry West’s reaction when you said you 

wanted to be compensated?

“A. He said we could sit down and talk about it. Let me 

rephrase that. They said yes. Because this is what they were 

pitching me all along, and Mr. Ballmer could take care of me, so 
7

it was stated Mr. Ballmer would take care of me, that’s not a 

problem.

“[¶] . . . [¶]

“Q. I asked you what Mr. West’s response was, and you 

said his response was ‘[w]e can sit down and talk about it.’ Did 

he say that to you, yes or no?

“A. He said a lot of things in that conversation that 

night. That was one of the things he said to me. A lot of other 

things said to me. I just wanted to be paid. So we were trying to

figure out a way for me to get paid, and it was a lot of things said, 

sir.

“Q. . . . So just so that you understand, my question to 

you was: You said, ‘I want to be compensated,’ and Mr. West 

said, ‘We can sit down and talk about it.’ Did he say that before 

or after you told him how much money you wanted?

“A. I don’t recall.

“Q. When you told him that you wanted to be 

compensated $2.5 million, tell me as best you can exactly 

what he said as soon as he [sic] said you wanted $2.5 million?

“A. Mr. Ballmer [owner of the Clippers] will take care [of 

me]. That was the whole pitch they sold me; that Steve Ballmer 

would take care of me. 

“[¶] . . . [¶]

“Q. On this telephone conversation [on June 28, 

2019], . . . was there any negotiation after you said to 

Mr. West, . . . ‘I want $2.5 million’?

“A. He said Mr. Ballmer would take care of me.

“[¶] . . . [¶]

“Q. . . . [D]id Jerry West tell you that Mr. Ballmer would 

take care of it—
8

“A. Yes.

“Q. —with $2.5 million?

“A. Yes.

“Q. And as you sit here today, you recall those words 

coming out of Jerry West’s mouth?

“A. Yes.

“Q. And so as far as you understood, that Mr. Ballmer 

was going to be paying the $2.5 million?

“A. Correct.

“Q. You didn’t think that Jerry West was going to be 

paying using money out of his pocket?

“A. No.

“[¶] . . . [¶]

“Q. . . . Just so that we’re clear, Jerry West did not try to 

negotiate you down from $2.5 million, correct?

“A. No.

“Q. And he didn’t say, ‘That’s a lot of money’?

“A. No.

“Q. And he didn’t say, ‘What am I getting for my $2.5 

million’? He said, ‘Mr. Ballmer will take care of you’; is that 

correct?

“A. That was the pitch. They knew my relationship with 

[Robertson] so they knew what they were getting.”

On the subject of what Wilkes would do in exchange for his 

compensation, the following testimony took place:

“Q. [During the June 28 telephone call,] [w]hat did you 

tell Mr. West you were going to do to make the princely sum of 

$2.5 million?

“A. I didn’t discuss anything at that time on the 

telephone with him.
9

“Q. Just so I’m clear, as far as your understanding, what 

did you think Jerry West was going to be paying $2.5 million for?

“A. For my help trying to get Kawhi Leonard to sign with 

the Clippers.

“[¶] . . . [¶]

“Q. . . . Did you tell Jerry West that you would do 

anything for $2.5 million?

“A. At that time, no.”

In an errata sheet attached to his deposition transcript, 

Wilkes added to this answer the words, “It was discussed 

previously.”

On June 30, Wilkes provided West with Robertson’s cell 

phone number. West called Robertson and told him he looked 

forward to meeting with him and Leonard on the afternoon of 

July 1.

As of July 1, 2019, Leonard was no longer under contract 

with the Toronto Raptors. At 2:10 p.m., Wilkes sent West a 

text message acknowledging that West would be meeting with 

Robertson and Leonard at 3:00 p.m. Wilkes texted to West: 

“[I]t’s between you and Toronto please tell everyone to pitch life 

after basketball to Kawai [sic] that’s what he really wants to 

about how family also convince [Robertson] that the players you 

have a lots of upside [sic].” West did not relay this information 

to others or use it at any time.

During the afternoon on July 1, West, Ballmer, Doc Rivers, 

and others met with Leonard, Leonard’s mother, and Leonard’s 

agent. Wilkes did not attend the meeting.

On July 4, West texted to Wilkes, “ ‘When can we expect a 

decision?’ ” Wilkes responded, “ ‘Friday will call you later[.] Will 

talk to [Robertson] again at [4:00 p.m.]’ ” That same day, West 
10

sent a text message to Ballmer stating that Leonard “is 

making his decision known tomorrow, one of my guys . . . is 

talking with [Robertson] at [4:00 p.m.,] he . . . is going to let me 

know if he . . . can find out anything, will let you know when I

hear from him.’ ” The next day, Ballmer texted West, “ ‘Where 

did your guy . . . think he . . . is leaning.’ ” West responded, 

“ ‘Could not get indication. I would hope that with everyone 

involved on his . . . side who are pro Clippers they are telling 

him . . . that this is a chance of a lifetime to be involved with 

[you] and our organization.’ ”

On July 7, 2019, Leonard signed with the Clippers.

Wilkes did not speak with anyone affiliated with the 

Clippers other than West, and he never spoke to Leonard about 

his conversations with West.

On July 23, 2019, West met with Wilkes, Watson, and 

Gray at a restaurant for lunch. Near the end of the meal, Wilkes 

handed a letter to Watson, who handed it to West. The letter 

set forth certain “requests,” and includes the following: “Over 

the past [two] years, Johnny Wileks [sic] worked with Kawhi to 

position his need to come ‘back home’ so that it was specifically 

as a member of the ‘LA Clippers.’ Johnny consistently pursued 

several networking opportunities where he then became a center 

of influence for Kawhi Leonard. Therefore, representing the 

interest of the LA Clippers. The [two]-year network building 

investment was close to $200,000 used for air travel; hotel; cars 

etc. in networking ‘to bring Kawi [sic] home.’ With that in mind, 

I am asking for a cash infusion to a non-profit or a trust of $2.5 

million which equals the commission given to an NBA agent 

who on average gets about 2-2.5 [percent] of the player’s signing 

contract.” (Capitalization omitted.) West considered the requests 
11

to be “outrageous” and discarded the letter without showing it to 

anyone connected to the Clippers.

About one year later, on July 10, 2020, Wilkes sent West 

a text message stating: “I am coming to you to discuss a matter 

regarding a negotiation that has become of concern to me,” and 

“I would like to talk to you . . . regarding issues that have not 

been addressed.” West did not recall receiving or responding 

to this text message.

Wilkes filed opposition to the motion for summary 

judgment and summary adjudication, supported by his 

declaration. In the declaration, Wilkes describes the June 28, 

2019 telephone conversation as follows: “On June 28, 2019, 

West and I had a telephone discussion where West asked for

my assistance in getting Kawhi Leonard to sign with the 

Clippers. I agreed to assist West and the Clippers provided 

that certain renumerations [sic] be paid upon Kawhi Leonard’s 

signing with the Clippers. Most notably, I told West that I would

only assist if it is agreed that I would be paid $2,500,000.00 for 

my services. West assured me that . . . Ballmer . . . and the 

Clippers would take care of me and agreed to the terms to pay me

$2,500,000.00 in exchange for my services in effectuating Kawhi 

Leonard’s signing with the Clippers.”

According to Wilkes, after the June 28 telephone call, he 

performed the following services in furtherance of the alleged 

contract. He “reached out” to Robertson to let him know that 

he “was in talks with West and the Clippers as it pertained to 

getting Kawhi Leonard to sign with the Clippers.” West thanked 

Wilkes for his efforts and called him the next day “to find out how 

[his] discussions with [Robertson] . . . went.” On June 29, Wilkes 

told Watson that the Clippers needed to sign Paul George in 
12

order to get Leonard to sign with the Clippers. Watson 

communicated this information to West. On June 30, Wilkes 

gave Robertson’s cell phone number to West, and West called 

Robertson. On July 1, West called Wilkes and sent him a text 

message thanking him “for being so helpful,” and offered to 

take Wilkes to dinner to “ ‘pay [his] respects.’ ” That same day,

Wilkes informed West that West “needed to pitch to Kawhi 

Leonard the following in an extremely specific and detailed 

manner: (1) Kawhi Leonard will have a great life as a Clipper 

and after basketball if he signs with the Clippers; (2) explain, 

emphasize and demonstrate in substantial detail that the 

Clippers’ roster at the time possessed a great deal of upside and 

would be around for years to come; and (3) the Clippers will do

whatever it takes to compete with the Los Angeles Lakers and 

Lebron James, such as acquiring another star to play alongside 

Kawhi Leonard; specifically Paul George.” According to Wilkes, 

this “was the exact information that Kawhi Leonard wanted 

to hear at the time in order to effectuate his signing with the 

Clippers.”

On July 4, Wilkes, at West’s direction, informed Robertson 

that if Leonard signed with the Clippers, Robertson would receive 

a house in Southern California and “a travel expense account,” 

and Ballmer would fund a $1 million marketing campaign for 

Leonard.

When West expressed concern to Wilkes that Leonard 

would sign with the Los Angeles Lakers, Wilkes assured him 

that he “would do everything in [his] power to ensure that Kawhi 

Leonard signs with the Clippers.”

On July 4, West sent text messages to Wilkes asking him,

“When can we expect a decision?” and asking Wilkes to let West 
13

know if he “hear[s] anything” or if Wilkes receives “any indication 

of [Leonard’s] plans.” West further stated that “[w]e need to sign 

another player. Not many left. Not trying to put any pressure on 

you. Thank you for all your help.” (Boldface & italics omitted.) 

According to Wilkes, “pressure” was a reference to “the agreed 

upon money.”

According to Wilkes, during the July 23, 2019 lunch 

meeting with West and Watson, he “demanded the $2,500,000.00

that West and [he] originally agreed upon. West reconfirmed 

that Ballmer, and the Clippers would pay the agreed upon 

moneys and honor the agreement.”

Wilkes further stated that he “relied on West’s 

representations to pay [him] the moneys agreed upon” and 

he “substantially changed [his] position” by “work[ing] diligently 

to get Kawhi Leonard to sign with the Clippers.” In particular, 

the Los Angeles Lakers had offered to pay Wilkes $2 million 

for his “efforts to get Kawhi Leonard signed with the Lakers.” 

After “the Clippers agreed to pay [him],” however, he provided 

no further assistance to the Lakers, and the Lakers were unable 

to sign Leonard.

Regarding West’s relationship with the Clippers, Wilkes 

stated that West, in his conversations with Wilkes, always 

referred “to the Clippers as ‘we’ or ‘our organization,’ ” and 

that West “never gave the impression that he was not an agent, 

employee or otherwise affiliated with the Clippers,” and never 

told Wilkes “that he did not have the authority to make any 

decisions on behalf of Ballmer or the Clippers.”
14

C. The Third Amended Complaint and West’s 

Demurrer

On July 6, 2022, while the motion for summary judgment 

and summary adjudication was pending, the court granted 

Wilkes’s motion for leave to file a third amended complaint.1 

The next day, Wilkes filed the third amended complaint, which 

included the three contract causes of action alleged in the second 

amended complaint and added three tort causes of action for:

fraud by intentional misrepresentation; fraud by concealment;

and fraud by false promise. The new causes of action were 

asserted against West only.

In support of the fraud causes of action, Wilkes alleged 

the following. Beginning with the first meeting between Wilkes 

and West in April 2019 and continuing through September 2019,

West consistently represented and promised to Wilkes “that 

he was an agent of the Clippers and had the authority to enter 

into agreements and make decisions on behalf of the Clippers.” 

In particular, West promised and “represented to [Wilkes] that

he had the authority to bind the Clippers . . . and would pay 

[Wilkes] $2,500,000.00 for his services in securing . . . Leonard 

as a Clipper.” These promises and representations were false, 

and West either knew they were false when he made them or 

he made them “recklessly and without regard for [their] truth.”

1 The third amended complaint superseded the second 

amended complaint. (See State Compensation Ins. Fund v. 

Superior Court (2010) 184 Cal.App.4th 1124, 1130.) It appears 

that the court treated the pending alternative motion for 

summary adjudication of the causes of action in the second 

amended complaint as a motion for summary adjudication of the 

three contract causes of action in the third amended complaint.
15

West intended that Wilkes rely on the false promises and 

representations, and Wilkes reasonably did rely on them to 

his detriment. In particular, Wilkes “substantially changed 

his position in that he worked diligently to get . . . Leonard to

sign with the Clippers in reliance on . . . West’s promises.”

West also allegedly fraudulently failed to disclose to 

Wilkes the fact that he is an independent contractor, and “not 

an agent/employee” of the Clippers, that he did not have the 

authority to enter into agreements and make decisions on behalf 

of the Clippers. Wilkes was unaware of these facts and West 

intended to deceive Wilkes by concealing them.

Wilkes further alleged that if he had known the truth

regarding the false promises and the facts West misrepresented 

and concealed, he would have devoted the time he had spent 

working to get Leonard to sign with the Clippers on “other 

jobs, tasks and endeavors.” As a result of West’s false promises, 

misrepresentations, and concealment, Wilkes was harmed 

because “he was not provided the $2,500,000.00, which he was 

promised.”

On July 29, 2022, West filed a demurrer to the fraud causes 

of action on the ground that they failed to state facts sufficient 

to constitute a cause of action. West argued that Wilkes failed 

to plead his fraud claims with particularity, and that the “fraud 

claims are a sham.”

D. The Court’s Ruling

At a hearing held in August 2022, the court granted 

the defendants’ motion for summary adjudication as to each of 

the contract causes of action. The court explained that “[t]aken 

together, the evidence indicates that the alleged oral agreement 

is invalid because of the absence of any clear and definite 
16

agreement as to two material terms of the alleged oral contract:

(i) the services plaintiff would provide to ‘help’ the Clippers 

sign Leonard and (ii) the compensation that plaintiff would be 

provided for rendering those services.” (Capitalization omitted.) 

The court further found that Wilkes’s promissory estoppel cause 

of action failed because “the evidence of West’s alleged promise 

is too uncertain to create a triable issue of material fact,” and 

Wilkes failed to submit “evidence that supports a reasonable 

inference of reliance.” In light of these conclusions, the court 

did not reach the issues of whether West had authority to bind 

the Clippers to the alleged agreement or that he assumed the 

obligation personally.2

The court sustained West’s demurrer on the ground that 

Wilkes failed to plead the allegations of misrepresentation with 

specificity and failed to plead facts showing that West had a 

duty to disclose that he was an independent contractor. The 

court denied Wilkes leave to amend because the allegations in 

the fraud causes of action are inconsistent with his discovery 

responses.

DISCUSSION

A. Summary Adjudication of the Contract and 

Promissory Estoppel Causes of Action

We review a ruling on a motion for summary adjudication 

de novo. (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 

273.)

2 The court expressly declined to rule on the parties’ 

objections, noting that objections not ruled upon are preserved 

for appellate review. (See Code Civ. Proc., § 437c, subd. (q).) 
17

A motion for summary adjudication of a cause of action is 

governed by the same principles governing a motion for summary 

judgment. (Grant-Burton v. Covenant Care, Inc. (2002) 99 

Cal.App.4th 1361, 1370.) A trial court properly grants a motion 

for summary adjudication when the papers submitted establish 

that one or more elements of the challenged cause of action 

cannot be established. (Code Civ. Proc., § 437c, subds. (a)(1) &

(p)(2).) 

“[T]he elements of a cause of action for breach of contract 

are (1) the existence of the contract, (2) plaintiff’s performance 

or excuse for nonperformance, (3) defendant’s breach, and (4) the 

resulting damages to the plaintiff.” (Oasis West Realty, LLC v. 

Goldman (2011) 51 Cal.4th 811, 821; accord, Piedmont Capital 

Management, L.L.C. v. McElfish (2023) 94 Cal.App.5th 961, 968.) 

The existence of a contract requires the “ ‘manifestation of assent 

to the “same thing” by both parties.’ ” (Bustamante v. Intuit, Inc.

(2006) 141 Cal.App.4th 199, 208.) Whether the parties assented 

to the same terms “is determined under an objective standard 

applied to the outward manifestations or expressions of the 

parties, i.e., the reasonable meaning of their words and acts, and 

not their unexpressed intentions or understandings.” (Alexander 

v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.)

To be enforceable, the terms of a contract must be 

“ ‘reasonably certain’ ”; that is, they must “ ‘ “provide a basis 

for determining the existence of a breach and for giving an 

appropriate remedy.” ’ ” (Weddington Productions, Inc. v. Flick

(1998) 60 Cal.App.4th 793, 811.) “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 
18

possible a determination of whether those agreed obligations 

have been breached, there is no contract.” (Ibid.)

Here, Wilkes alleged that West or the Clippers agreed to 

pay him $2.5 million in exchange for his “services,” including 

“assisting [them] with contacting Kawhi Leonard while he was 

still ‘under contract’ ” with the Toronto Raptors. The Clippers 

and West submitted Wilkes’s deposition testimony regarding the 

telephone call during which the parties entered into the alleged 

contract. As set out above, Wilkes testified initially that when 

he asked West to be paid $2.5 million for his services, West said 

that they “could sit down and talk about it,” and that Ballmer—

the owner of the Clippers—would “take care” of Wilkes. When 

counsel questioned him further, however, he testified that 

West told him “that Mr. Ballmer would take care of it” “with 

$2.5 million.”

As to the identity of the parties to the contract, Wilkes 

testified that he understood that “Mr. Ballmer,” not West, 

would be obligated under the contract to pay him. West, in 

his declaration, stated that he did not “promise to pay [Wilkes] 

any amount of money.” Thus, even if Wilkes’s testimony is 

sufficient to establish a triable issue as to the price term of the 

contract—$2.5 million—the undisputed evidence establishes 

the absence of mutual assent as to a contract obligating West 

personally. West is therefore entitled to summary adjudication 

of the breach of contract cause of action.

Wilkes never spoke with Ballmer or any other authorized 

representative of the Clippers, and the parties dispute whether 

West had actual or ostensible authority to bind the Clippers 

to a contract. Even if we assume arguendo that West had such 

authority, the alleged contract is fatally uncertain as to what 
19

performance was due on Wilkes’s part. When Wilkes was asked 

at his deposition what he would do in exchange for $2.5 million, 

he initially referred vaguely to his “program,” and to “helping 

[West] get one of the best players in the NBA.” When questioned 

further as to whether he told West during the June 28, 2019 

telephone call what he “would do . . . for $2.5 million,” Wilkes 

responded, “[a]t that time, no.” In an errata sheet to the 

deposition transcript, Wilkes added to this the words: “It 

was discussed previously.” On appeal, Wilkes appears to rely 

on these additional words in asserting that the parties had 

“hammered out” the “terms of the contract . . . over many days, 

and not one [nine]-minute phone call.” When asked about the 

previous discussions at a subsequent deposition, Wilkes stated 

that he and West “already knew what kinds of services [he] was 

going to provide”; he “was providing the service to help them get 

Kawhi Leonard.”

In his declaration submitted in opposition to the motion for 

summary adjudication, Wilkes provided no further clarification

on this point, stating, “West asked for my assistance in getting 

Kawhi Leonard to sign with the Clippers. I agreed to assist 

West and the Clippers provided that certain renumerations [sic] 

be paid upon Kawhi Leonard’s signing with the Clippers. Most 

notably, I told West that I would only assist if it is agreed that 

I would be paid $2,500,000.00 for my services.” Wilkes’s vague 

references to “help,” “assistance,” and unspecified “services”

do not provide a basis for determining what actions Wilkes must 

perform to be entitled to $2.5 million. Because the terms of the 

alleged contract as to Wilkes’s performance are uncertain, no 

contract was formed, and the breach of contract cause of action is 

without merit.
20

Wilkes’s cause of action for breach of the covenant of good 

faith and fair dealing is based on the same alleged facts and 

seeks the same relief as his breach of contract cause of action.

It may thus “be disregarded as superfluous as no additional claim 

is actually stated.” (Careau & Co. v. Security Pacific Business 

Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395; accord, Levy v. 

Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 215.) 

In any case, it fails for the same reasons that Wilkes’s breach 

of contract cause of action fails: The terms regarding Wilkes’s 

obligations are too uncertain to support the formation of a 

contract. 

Wilkes’s third cause of action is for promissory estoppel. 

“ ‘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 his reliance.” [Citation.]’ ” (Jones v. 

Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) Here, the 

alleged promise to pay Wilkes $2.5 million—if it was made at 

all—was a conditional promise to pay Wilkes if Wilkes performed 

some service for the Clippers. In the absence of any certainty 

as to what the Clippers would be paying for, the alleged promise 

to pay $2.5 million was not sufficiently “clear and unambiguous” 

to support an estoppel. (See Daniels v. Select Portfolio Servicing, 

Inc. (2016) 246 Cal.App.4th 1150, 1179 [bank’s promise to allow 

borrowers to modify loan did not support promissory estoppel 

claim because the promise did not specify the terms of the 

modification].) 

The defendants have submitted evidence showing that 

at least one element of the contract and promissory estoppel 
21

causes of action cannot be established, and Wilkes failed to show 

that a triable issue of material fact exists as to such elements. 

The defendants are therefore entitled to summary adjudication 

of these causes of action. 

B. Demurrer to Fraud Causes of Action

Wilkes asserted causes of action for fraud by intentional 

misrepresentation, fraud by concealment, and false promise.

Fraud by intentional misrepresentation requires pleading 

of “ ‘ “(a) misrepresentation (false representation, concealment, 

or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent 

to defraud, i.e., to induce reliance; (d) justifiable reliance; and 

(e) resulting damage.” ’ ” (Small v. Fritz Companies, Inc. (2003) 

30 Cal.4th 167, 173 (Small).) “ ‘In California, fraud must be pled 

specifically; general and conclusory allegations do not suffice.’ ”

(Id. at p. 184.) “The specificity requirement serves two purposes. 

The first is notice to the defendant, to ‘furnish the defendant 

with certain definite charges which can be intelligently met.’ ” 

(Committee on Children’s Television, Inc. v. General Foods Corp.

(1983) 35 Cal.3d 197, 216.) Second, “the pleading should be 

sufficient ‘ “to enable the court to determine whether, on the 

facts pleaded, there is any foundation, prima facie at least, for 

the charge of fraud.” ’ ” (Id. at p. 217.) “ ‘ “Thus ‘ “the policy of 

liberal construction of the pleadings . . . will not ordinarily be 

invoked to sustain a pleading defective in any material respect.” ’ 

[Citation.] This particularity requirement necessitates pleading 

facts which ‘show how, when, where, to whom, and by what 

means the representations were tendered.’ ” ’ ” (Small, supra, 

at p. 184; accord, Cansino v. Bank of America (2014) 224 

Cal.App.4th 1462, 1469.) 
22

Wilkes’s causes of action for intentional misrepresentation 

is based on the allegations (1) that from April 10, 2019 through 

September 2019, West “consistently represented to [Wilkes] that 

he was an agent of the Clippers and had the authority to enter 

into agreements and make decisions on behalf of the Clippers,” 

and (2) that West “falsely represented to [Wilkes] that he had

the authority to bind the Clippers . . . and would pay [Wilkes]

$2,500,000.00 for his services in securing Kawhi Leonard as 

a Clipper.” His cause of action for fraud by false promise is 

substantially identical, except that he replaced the word

“represented” with “promise.”

Wilkes alleges, in essence, that West represented or 

promised to Wilkes that West had the authority to contractually 

bind the Clippers to pay Wilkes $2,500,000 for Wilkes’s services 

in securing Leonard as a Clipper. These allegations do not aver 

the “ ‘ “ ‘how, when, where, . . . and by what means,’ ” ’ ” West 

made the representations and promises. (Small, supra, 30 

Cal.4th at p. 184.) Wilkes does not allege how West made 

the representations or promises, such as orally or in writing, 

expressly or impliedly, in person or telephonically. Nor does 

he allege the particular dates or times the representations were 

made, where West made the representations, or the means by 

which West made them. The allegations are thus insufficient 

to state a cause of action for fraud.

In pleading his cause of action for fraud by concealment, 

Wilkes alleges that West failed to disclose: that he “was not 

an agent/employee of the Clippers”; that he “did not have any 

authority to enter into agreements and make decisions on behalf 

of the Clippers”; that he “is an independent contractor of the

Clippers”; and that he “did not have the authority to bind the
23

Clippers . . . and would pay [Wilkes] $2,500,000.00 for

his services in securing Kawhi Leonard as a Clipper.”

To state a cause of action for fraudulent concealment, 

Wilkes is required to plead: “ ‘(1) the defendant . . . concealed 

or suppressed a material fact, (2) the defendant [was] under a 

duty to disclose the fact to the plaintiff, (3) the defendant . . . 

intentionally concealed or suppressed the fact with the intent 

to defraud the plaintiff, (4) the plaintiff [was] unaware of the 

fact and would not have acted as he did if he had known of 

the concealed or suppressed fact, and (5) as a result of the 

concealment or suppression of the fact, the plaintiff must have 

sustained damage.’ ” (Prakashpalan v. Engstrom, Lipscomb & 

Lack (2014) 223 Cal.App.4th 1105, 1130 (Prakashpalan).)

The requisite “duty to disclose may be established 

where there is a confidential relationship between the parties, 

defendant has made a representation which was likely to 

mislead due to the nondisclosure, there is active concealment 

of undisclosed matters, or one party has sole knowledge of or 

access to material facts and knows such facts are not known to 

or discoverable by the other party.” (Prakashpalan, supra, 223 

Cal.App.4th at p. 1130.) Here, Wilkes does not allege that West 

owed him a duty to disclose the facts he allegedly concealed; nor 

does he allege facts that would establish such a duty under these 

tests. He does not allege a confidential relationship between 

himself and West, he fails to identify any specific representations 

West made to mislead Wilkes, he alleges no facts of active 

concealment, and does not aver that West’s relationship with 

the Clippers was not discoverable. He has thus failed to state a 

cause of action for fraud by concealment.
24

C. Denial of Leave to Amend

Wilkes contends that the court erred in denying his request 

for leave to amend his fraud causes of action. We review the 

denial of leave to amend for an abuse of discretion. (Greenwood 

v. City of Los Angeles (2023) 89 Cal.App.5th 851, 857.) “The 

plaintiff bears the burden of proving an amendment could cure 

the defect.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 

Cal.5th 145, 162.) 

In opposing Wilkes’s request for leave to amend, West 

requested judicial notice of certain discovery responses from 

Wilkes to argue that he cannot cure the defective pleading. In

particular, West asked Wilkes in an interrogatory to identify 

the basis for his contention that he “had the authority to enter 

into agreements and make decisions on behalf of the Clippers,” 

and Wilkes responded: “West had the apparent ability to 

make decisions, and enter into contacts, on behalf of defendant 

LA Clippers” and “West consistently told [Wilkes] that Steve 

Ballmer would take care of him.” Wilkes gave a substantially 

similar response to an interrogatory asking him to identify the 

basis for his contention that West “was an agent of the Clippers.”

West pointed out that Wilkes was required by law to 

respond to the interrogatories with answers that are “as complete 

and straightforward as the information reasonably available 

to [him] permits.” (Code Civ. Proc., § 2030.220, subd. (a); see

Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 

64, 76 [“ ‘[p]arties must “state the truth, the whole truth, and 

nothing but the truth in answering written interrogatories” ’ ”].) 

Because Wilkes’s “complete” answers to questions about the basis 

of West’s alleged agency and authority to bind the Clippers failed 

to specify any representations or promises—only the “apparent 
25

ability to make decisions”—West argued that any curative 

allegation of specific representations or promises would be 

inconsistent with his responses. The trial court agreed with 

West, and concluded that “leave to amend would be futile.”

The court’s conclusion is not an abuse of discretion.

On appeal, Wilkes contends that, if given leave to do so, 

he can allege the additional facts that West had told him during 

their first meeting in April 2019 that he “works for the Clippers,” 

and that on June 29, 2019—the day after the alleged contract 

was formed—that West said he was a consultant for the 

Clippers and was working with the team to acquire Leonard. 

The proposed allegations that West stated that he worked for 

the Clippers or acted as a consultant, however, if true, do not 

constitute a representation or promise that he had the authority 

to contractually bind the Clippers to pay $2.5 million. Even 

if Wilkes believed otherwise, any reliance on his part would 

not be reasonable or justifiable, and therefore insufficient to 

state a cause of action for fraud. (See Beckwith v. Dahl (2012) 

205 Cal.App.4th 1039, 1066 [“plaintiff must set ‘forth facts to 

show that his or her actual reliance on the representations 

was justifiable’ ”].) Therefore, the court did not err in denying 

Wilkes leave to amend.
26

DISPOSITION

The judgment is affirmed. Respondents are awarded their 

costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

WEINGART, J.