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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

,

Defendant s and Respondents

. B3 24394

(Los Angeles County Super. Ct. No. 20STCV47642 )

APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi

, Judge

. Affirmed.
K RA Legal and Kenechi R. Agu for Plaintiff and Appellant. Quinn Emanuel Urquhart & Sullivan, Duane R. Lyons and Dylan C. Bonfigli for Defendant s and Respondent s

.

____________________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 t he 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

. I n 2019
, Wilkes and Robertson were best friend s

. 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 c ontract with the Raptors was set to expire on June 30, 2019 ; thereafter he would be “a f ree a gent” 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 Leonard3

to join the Clippers and sought to circumvent the tampering
rule by communicating with Wilkes.
O n 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 communic ated frequently there after. 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 2 8, 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 what4

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 year s to come”;
and (3) the Clippers “will do whatever it take s 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 ha d 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 m ake a personal promise t o 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 point s, 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 We st 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 are n a 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 te x ted Wilkes a photo of a billboard that Clippers fans put up along a freewa y that features a picture6

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

“ #K AWHI 2LAC.” 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, 20 19
, Wilke s , 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 We st 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 play ers in the NBA .” West and Watson “asked [Wilkes] how
much .” Wilkes testified that he and Watson “ t alked 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 reph r ase that. They said yes. Because this is what they were pitching me all along, and Mr. Ballmer could take care of me, so7

it was stated Mr. Ballmer would take care of me, that’s not a problem. “[¶] . . . [¶] “Q. I asked you w h at Mr. West’s response was, and you said his response was ‘[w] e can sit down and talk about it. ’ Did
h e 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 t o figure out a way for me to get paid, a nd 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 mon ey 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 Ju ne 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] i d 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 a nd told him he looked forward to meeting with him and Leonard o n the afternoon of July 1. As of July 1, 20 19, Leonard was no longer under contract
with the Toronto Raptors. A t 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 reall y want s to about how fa mily 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, West10

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 yo u 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
involve d on his

. . . side who are pro Clippers the y 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 th e 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 networkin g 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 ] h ome. ’ With that in mind, I am asking for a cash infusion to a non

- profit or a t rust of $2.5

m illion which equals the commission given to an NBA agent
who on average gets about 2

- 2.5 [percent] of the player’s signing

contract. ” (Capit alization omitted.) West considered the requests11

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 d iscuss 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 judg ment and summary adjudication , supported by his
declaration

. In the declaration, Wilke s describes the June 28, 2019 telephone conversation as follows: “ On June 28, 2019,
West and I had a telephone dis cussion 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. ”
A ccording to Wilkes, a fter 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]

. . . w ent.” On June 29, Wilk es told Watson that the Clippers needed to sign Paul George in12

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 Jul y 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 demo nstrate 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 acqu iring another star to play alongside Kawhi Leonard; specifically Paul George .” A ccording to Wilkes,
this “was the exact information that Kawhi Leonard wanted

to hear at the time in order to effectua te his signing with the Clippers. ”
On J uly 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 co ncern 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,

“ W hen can we expect a decision ? ” and asking Wilkes to let West13

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
, 5 00,000.00 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 Laker s , and the Lake r s were unable
to si gn Leonard. Regarding West’s relationship with the Clippers, Wilkes
stated that West , in his conversations with Wilk e s , always
referred “ to the Clippers as ‘we’ or ‘our organization ,’ ” and
th at West “never gave the impression that he was not an agent,

emp loyee 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 fo r 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 h ad 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 i n securing

. . . Leonard

as a C lipper.” 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

We st 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 Cli ppers 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 agen t/ employee” of the Clippers, that he did not have the authority to enter into agreemen ts 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
b ecause “he was not provided the $2,500,000 .00 , which he was promised.” On July 29, 2022, West filed a demurrer to th e fraud causes
of action on the ground that they fail ed 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

A t 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 definite16

agreement as to two material terms of the alleged oral contract: (i) the services p lain tiff would provide to ‘ help ’ the Clippers sign Leonard and (ii) the compensation that p laintiff would be provided for rendering those services. ” (Capitalization omitted.)
The court further found that Wilkes’s promissory estoppel cause
of action failed be cause “ 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

spec ificity 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 adjudi cation 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, subd s

. (a)(1) & ( p )(2 ).) “[T] he elements of a cause of action for breach of contract are (1) the existence o f the contract, (2) plaintif f ’ 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 und erstandings.” ( 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 ma ke18

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 whi ch 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 Clip pers

— w ould “take care” of Wilkes

. When
counsel questioned him further, however, he testified that
West told him “that Mr. Ballmer would t ake 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, eve n 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 t o summary adjudication
of the breach of contract cause of action. Wilkes never spoke with Ballmer or any other authorized representative of the Clippers, and t he 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 what19

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 initia lly 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 add ed to t his the words : “ I t

was discussed previously

. ” O n appeal, Wilkes appears to rely

on these additional words in asserting that the parties had “hammer ed out” the “terms of the contract

. . . over many days,
and not one [nine]

- minute phone call.” When asked about the

pr evious discussions at a subsequent deposition, Wilkes stated that he and West “already knew what kinds of services [he] was going to pro vide ” ; he “was providing the service to help them get
Ka whi 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 wh at act ion s 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 : T he terms regarding Wilkes’s obligations are too uncertain to support the formation of a

contract. Wilkes’s third cause of action is for p romissory 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, 9 45 .) 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 al leged 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 estoppel21

causes of action cannot be esta blished , and Wilkes failed to show
that a triable issue of material fact exists as to such elements.
The d efendants are therefore entitled to summary adjudication
of these causes of action.

B. Demurrer to F raud C auses of A ction

Wilkes asserted causes of action for fraud by intentional misrepre sen tation, fraud by concealment, and false promise. Fraud by intentional misrepresentation requires pleading
of “ ‘ “ (a) misrepresentation (false representation, concealment,

or nondisclosur e); (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 p led specifically; general and conclusory allegations do not suffice. ’ ” ( Id. at p. 18 4 .) “T he specificity requirement serves two purposes. The first is notice to the defendant, to ‘ furnish the defendant
with certain definite charges which can be intellig ently met. ’ ” ( Committee o n 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 particular ity requirement necessitates pleading facts which ‘ show how, when, where, to whom, and by what means the representations were tendered. ’ ” ’ ” ( Small

, supra , at p. 18 4 ; accord

, Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 .)22 Wilke s ’s cause s of action for intentional misrepresentation
is based on the allegation s (1) that from April 10, 2019 through September 2019, West “ consistently represented to [Wilkes] that he was an agent of the Clipp ers 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 repres ented 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. Th ese allegation s do not aver the “ ‘ “ ‘how, when, where, .

. . and by what means

, ’ ” ’ ” West made the representations and promises

. ( Small

, supra , 30 Cal.4th at p. 1 8 4 .) 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
h e 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 agen t/ employee of the Clippers” ; that he “did not have any authority to enter into agreements and make decisions on behalf
of the Cl ippers”; that he “is an independent contractor of the Clippers”; and that he “ did not have the authority to bind the23

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 fo r 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 f act, 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 parti es, 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 discov erable 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 ; n or does he allege facts that would establish such a duty under the se
test s. 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
de nial 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.5t h 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 interrogator y 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 d efendan t 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 ba sis
of West’s alleged agency and authority to bind the Clippers failed

to specify any representations or promises

— only the “apparent25

ability to make decisions”

— West argued that any curative allegation of specific representation s or promises would be
incons istent 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 m eeting in April 2019 that he “work s 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 propose d allegations that West stated that he work ed for
the Clippers or act ed as a consultant

, however, if true, do not
constitute a represent ation or promise that he had the authority to contractually bind the Clippers to pay $2.5 millio n . 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 jus tifiable ’ ”].) 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.