Filed 7/27/22 Evans v. Bosa Development Cal. II CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COURTNEY EVANS,

Plaintiff and Appellant,

v.

BOSA DEVELOPMENT CALIFORNIA 

II, INC.,

Defendant and Respondent.

 D078272, D078818

(Super. Ct. No. 37-2019-

00032165-CU-BC-CTL)

CONSOLIDATED APPEALS from a judgment and order of the 

Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.

Vivoli Saccuzzo, Michael W. Vivoli and Jason P. Saccuzzo for Plaintiff 

and Appellant.

Behmer & Blackford, Brian L. Behmer; Law Offices of Mary A. Lehman 

and Mary A. Lehman for Defendant and Respondent.

INTRODUCTION

Courtney Evans entered into negotiations with Bosa Development 

California II, Inc. (Bosa) to lease commercial space on the ground floor of a 

new luxury condominium building that Bosa was developing. During 
2

negotiations, Bosa’s broker provided Evans’ broker with a letter outlining 

“the general terms and conditions which [Bosa] would consider as the basis 

for a lease agreement.” The letter stated the proposal was expressly made 

“subject to and contingent upon” three specific conditions, including the 

“[m]utual execution of the Lease.” Evans signed the letter to indicate her 

agreement and the parties, through their brokers, began negotiating a lease 

agreement. They exchanged a “ ‘red-lined’ ” draft lease agreement but, 

approximately one year later, Bosa ended the negotiations, without executing 

a lease agreement. 

Evans sued Bosa for breach of contract, among other causes of action. 

She claimed the letter from Bosa’s broker was a binding contract that, at a 

minimum, required Bosa to negotiate a lease agreement in good faith. Bosa 

demurred. It asserted the letter was not a binding contract, as it expressly 

stated any agreement was subject to contingencies, including the mutual 

execution of a lease agreement, which never occurred. The trial court

granted Evans leave to amend the complaint once, but then sustained Bosa’s 

second demurrer without leave to amend when Evans was unable to cure the 

pleading deficiencies. Consequently, it entered a judgment of dismissal of 

Evans’ claims against Bosa. Based on an attorney fee provision in the 

unsigned draft lease agreement, the trial court awarded Bosa attorney fees as 

the prevailing party. 

Evans filed two separate appeals, one from the judgment of dismissal 

and one from the order awarding Bosa attorney fees. We consolidated the 

appeals for disposition on our own motion. Having reviewed Evans’ operative 

First Amended Complaint (FAC), we conclude it does not plead facts 

sufficient to state any cause of action against Bosa. We further conclude the 
3

trial court did not err in awarding Bosa attorney fees as the prevailing party. 

Accordingly, we affirm both the judgment of dismissal and the fee award. 

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Lease Negotiations1

Evans is the owner of a wellness studio called Level Ten Pro 

Performance (Level Ten). In 2017, Evans hired a commercial real estate 

brokerage firm, Hughes Marino, Inc. (HM), to help her secure a larger space 

for her growing business. HM suggested Evans lease a space on the ground 

floor of a new luxury condominium building that Bosa was developing, Pacific 

Gate. On behalf of Evans, HM began discussing a possible lease with Bosa’s 

broker, CBRE Group, Inc. (CBRE). 

After preliminary verbal negotiations, HM sent CBRE “a proposed list

of terms pursuant to which [Evans] would lease space on the first floor of the 

Pacific Gate building.” On October 30, 2017, CBRE responded with a letter, 

addressed to HM, with a subject line of “Proposal to Lease at Pacific Gate, 

San Diego, California” (the letter).2 The letter began with: “Thank you for 

your proposal on behalf of Level 10 Pro Performance. Having reviewed the 

information provided, [Bosa] has asked me to provide you with the following 

redline counter lease proposal outlining the general terms and conditions 

which [Bosa] would consider as a basis for a lease agreement with Level 10 

Pro Performance at Pacific Gate.” (Italics added.) In the very next sentence, 

the letter requested that Evans, “Please provide your response in Word 

1 Our recitation of the facts is derived from Evans’ FAC.

2 Evans attached a copy of the letter as Exhibit A to the FAC.
4

‘redline’ in the same order as the items are presented below.” (Boldface 

omitted.) 

Over the next five pages, the letter set forth approximately 23 “general 

terms and conditions.” The terms and conditions included, among others, 

that Bosa would lease to Evans “approximately 4,800 rentable square feet on 

the first floor of the [Pacific Gate] Building,” the term of the lease would be 

for 10 years, and the rent would be $3 per rentable square foot, with a 3

percent annual increase. 

After stating the terms and conditions, the letter stated there were

“CONTINGENCIES.” (Boldface omitted.) Specifically, the letter provided

that, “This proposal shall be subject to and contingent upon the following: [¶] 

A. Approval of Tenant, terms and conditions by Landlord’s Real Estate 

Committee; [¶] B. Landlord’s review and approval of Tenant’s most recent 

financial statements; [¶] C. Mutual execution of the Lease.” (Italics added.) 

The letter closed with: “Once you have had an opportunity to review 

this proposal, please feel free to call me with any questions or comments you 

may have. We look forward to your response and to moving toward mutual 

lease execution.” 

At the bottom of the letter, after a closing salutation from CBRE’s Vice 

President, there was a line that read “Agreed and Accepted:” followed by

signature lines for “LANDLORD” and “TENANT.” On November 1, 2017, 

Evans “DocuSigned” her name under “TENANT” and returned the letter to 

HM, without making any changes. Evans never received a copy of the letter

with Bosa’s signature, but HM told her, “ ‘everything’s signed and we’re good 

to go.’ ” Evans knew, however, when she signed the letter, that Bosa was still 

in the permitting process with the City of San Diego and the exact location of 
5

a demising wall3 that would define the available space had not yet been 

determined. Evans believed the parties “agreed to negotiate the material 

terms of their lease with the understanding the final square footage would be 

determined by the location of the demising wall.”

After signing the letter, Evans provided all of the financial information 

Bosa requested. In addition, she provided schematics and plan renderings, 

“ostensibly for use by Bosa in building out the space for [Evans] and for Bosa 

to determine the exact placement of the demising wall.” Evans incurred 

“thousands of dollars in out-of-pocket costs” as a result of these efforts. Bosa 

told Evans her studio was a “ ‘perfect fit’ for Pacific Gate” and “never once 

suggested the parties did not have a binding agreement.” Evans believed 

Bosa had committed to renting the Pacific Gate space to her, and did not look 

for other available spaces for her studio.

Through their brokers, the parties began negotiating a “long form lease 

agreement” and exchanged “a ‘red-lined’ draft” of a “RETAIL LEASE

AGREEMENT” (draft lease agreement).4 The draft lease agreement

contained a number of proposed changes in redline and approximately 60

comments. Many of the comments ended with a note indicating the proposed 

change at issue was either “Agreed to,” “Substantially agreed to,” or “Not 

agreed to.” The draft was not dated, and it is not readily apparent which 

party had made which edits or comments. 

After “more than a year of negotiations” over the draft lease agreement, 

HM told Evans that “Bosa had ‘decided to go a different direction’ ” and 

3 A demising wall is a partition that separates the space belonging to two 

different tenants, or that separates a tenant’s space from a common area.

4 Evans attached a copy of the red-lined draft of the lease agreement as 

Exhibit B to the FAC.
6

would not be moving forward with the execution of the lease with Evans. 

Evans asked HM for a copy of the letter signed by Bosa. It was then that HM

told Evans that Bosa had not actually signed the letter, “beyond its having 

transmitted the offer through its authorized agent.” When Evans “asked HM 

why it had apparently lied to [her] about Bosa’s execution of [the letter,]

HM’s only response was that it ‘doesn’t really matter.’ ” 

II.

The Lawsuit

A. Bosa’s Demurrer to the Original Complaint

On June 21, 2019, Evans sued HM and Bosa. In her original 

complaint, she asserted causes of action for professional negligence, breach of 

fiduciary duty, and constructive fraud against HM,5 and causes of action for 

breach of contract, breach of duty to negotiate in good faith, and specific 

performance against Bosa. Evans alleged HM knowingly and negligently 

misled her regarding Bosa’s execution of the letter, which she referred to in 

her complaint as the “ ‘LOI.’ ”6 But regardless of whether Bosa actually

signed the letter, Evans alleged she accepted “Bosa’s offer to lease space to 

her under the terms of the LOI and upon accepting, a binding agreement was 

formed.” Bosa then “breached the parties’ contract by failing and refusing to 

5 After filing an answer, HM moved for summary judgment. The trial 

court issued a tentative ruling granting summary adjudication in part and 

denying it as to the claims for negligence and breach of fiduciary duty. 

Because the tentative ruling was issued after the judgment of dismissal in 

favor of Bosa, we have no record of the court’s final ruling on HM’s summary 

judgment motion. However, since the claims against HM are not at issue 

here and HM is not a party to the present appeal, we need not discuss the 

proceedings as to HM further.

6 Although the acronym LOI is not specifically defined in the complaint, 

we assume it stands for the common term, letter of intent.
7

sign and return a written lease agreement in conformance with the material 

terms of [the LOI], and by outright preventing the parties’ contract from 

reaching fruition through a signed lease agreement; an act completely within 

Bosa’s control.” 

Bosa demurred. It asserted the complaint “reveal[ed] no binding

agreement of any sort” between the parties. Bosa argued the letter, on its 

face, was a “non-exclusive Letter of Intent” that did not contain any 

obligatory language. Instead, the letter was “expressly subject to conditions, 

including (not surprisingly), consummation of a lease which never occurred.” 

Bosa also argued the “unsigned redlined draft lease” agreement “reflect[ed]

roughly 60 comments and proposed edits, addressing numerous material 

terms⎯39 of which were expressly ‘[n]ot agreed to,’ ” and thus demonstrated 

the parties never agreed to the essential elements of an enforceable lease. 

Further, Bosa asserted the complaint failed to state claims for breach of duty 

to negotiate in good faith and for specific performance, for largely the same 

reasons: the letter was not binding and did not confer any obligation on 

either party to do anything. 

Evans opposed the demurrer. She argued the complaint adequately 

pled a cause of action for breach of contract based both on the letter⎯which 

she now referred to as “the accepted proposal/offer”⎯and the draft lease 

agreement, which she asserted “Bosa later refused, in bad faith, to sign after 

all other alleged ‘contingencies’ within the parties[’] agreement had either 

been met or prevented by Bosa.” Despite previously referring to the letter as 

“ ‘the LOI,’ ” Evans now asserted the letter did not contain the words “ ‘letter 

of intent,’ ” and that it was, instead, a “ ‘Proposal.’ ” 

Evans acknowledged the letter expressly contained three contingencies, 

but argued the complaint adequately pled that she satisfied the first two 
8

contingencies. As to the third, Evans asserted the complaint “expressly 

plead[ed] that [she] fully complied with her obligation to negotiate . . . a lease 

consistent with the Proposal [the letter], but that Bosa breached its 

obligation to . . . do the same.” The draft lease agreement, she asserted, 

“ ‘evidence[d] [Evans’] own performance of her obligation to negotiate in good 

faith towards execution of a long form written lease agreement, and the 

understanding that Bosa would lease space to [her] in the Pacific Gate 

property under the material terms set forth and not “red-lined” within the 

draft lease.’ ” She asserted, “[i]n sum, the [c]omplaint allege[d] that the 

parties executed a written agreement with only three ‘contingencies’⎯two of 

which [Evans] satisfied and the third of which Bosa actively prevented, in 

breach of both the contract and its duty to negotiate in good faith the 

contemplated lease.” Evans did not address her cause of action for specific 

performance and, instead, asserted the complaint adequately alleged a claim 

for promissory estoppel. 

The trial court sustained Bosa’s demurrer as to all three causes of 

action. On the breach of contract claim, the court rejected Evans’ assertion 

that the draft lease agreement demonstrated “an agreement as to the terms 

for which no ‘redline’ changes [were] made.” Instead, the court found the 

draft “actually” demonstrated the letter “was not an agreement, but rather a 

continuing negotiation.” It found the “[e]ssential terms were not agreed upon 

in” either the letter or the draft lease agreement. As one example, the court 

explained: The letter “indicates the rentable square footage as 4,800 square 

feet.” The draft lease agreement “shows that [Bosa] changed the square 

footage to 3,686 square feet and [Evans] redlined that amount, offering 5,416 

square feet. This term was essential not only to the actual space size but also 

to the amount of rent, which was tied to the square footage.” The court 
9

further found the draft lease agreement “contain[ed] many other significant 

redline changes, indicating that the parties were in the midst of negotiating 

‘toward a mutual lease execution.’ ” It therefore concluded Evans did not 

allege sufficient facts to establish a cause of action for breach of contract.

For the same reasons, the trial court found the complaint failed to 

adequately allege facts to support the remaining causes of action. It 

acknowledged “that parties may enter into a binding contract to negotiate an 

agreement,” but reiterated the letter was “not an enforceable contract” and

thus concluded there was “no contractual compulsion to negotiate.” Because 

it found insufficient facts to establish a contract, the trial court also 

determined the claim for specific performance failed and noted that Evans 

made “no effort to support this cause of action.” Although Evans never 

asserted a promissory estoppel claim, the court noted that she oddly asserted 

in opposition to the demurrer that her “promissory estoppel claim [wa]s 

sufficiently alleged.” Because the court found “there appear[ed] to be a 

possibility that [Evans] may be able to allege promissory estoppel,” it granted 

her leave to amend the complaint to add the claim.

B. Bosa’s Demurrer to the FAC

Evans filed the FAC approximately two weeks later. Despite the trial 

court’s ruling sustaining Bosa’s demurrer on all three causes of action and 

granting Evans leave to amend only “to add a cause of action for promissory 

estoppel,” the FAC asserted the same two causes of action for breach of 

contract and breach of duty to negotiate in good faith against Bosa, in 

addition to the new claim of promissory estoppel. 

The factual allegations in the FAC were substantially similar to the 

original complaint. As with the original complaint, Evans attached a copy of 

the letter and the draft lease agreement to the FAC as Exhibits A and B, 
10

respectively. All earlier references to the letter as “ ‘the LOI’ ” were removed 

from the FAC; instead, the FAC referred to the letter simply as “Exhibit ‘A.’ ” 

Otherwise, Evans maintained the letter was “a binding contract” between the 

parties. She alleged that “[u]nder the parties’ contract, Bosa was obligated to 

lease the [Pacific Gate] space” to her “under terms and conditions 

substantially consistent with those outlined in” the letter. Evans again

alleged the draft lease agreement “evidence[d] [her] own performance of her 

obligation to negotiate in good faith towards execution of a long form written 

lease agreement.” However, “Bosa breached the parties’ contract by failing 

and refusing to negotiate in good faith, sign and return a written lease 

agreement in substantial conformance with the material terms of [the letter],

and by outright preventing the parties’ contract from reaching fruition

through a signed lease agreement; an act completely within Bosa’s control.” 

In support of the breach of duty to negotiate in good faith claim, Evans 

alleged in the FAC that, “[t]o the extent Bosa contends [the letter] does not 

itself represent a binding contract concerning the contemplated lease for any 

reason, it does represent a binding agreement to negotiate in good faith and 

Bosa’s failure and/or refusal to negotiate in good faith a long form lease in 

substantial conformance with the material terms of [the letter] represents a 

breach of that duty to negotiate in good faith.” (Boldface omitted.) 

Finally, Evans alleged, in support of the newly added promissory 

estoppel claim, the letter was a “clear and unambiguous promise” by Bosa to 

lease the Pacific Gate space to her. And that “HM and Bosa, through 

their . . . conduct and communications, caused [Evans] to believe that she had 

a valid and binding agreement with Bosa that required Bosa to enter into a 

long form lease agreement . . . under the material terms and conditions of

[the letter].” Evans “justifiably relied” on Bosa’s promise to negotiate in good 
11

faith towards a lease agreement and, as a result, “incurr[ed] and expend[ed]

thousands of dollars in expenses” and “refrain[ed] from finding alternative 

rental premises for her [s]tudio, all to [her] legal detriment.” Evans alleged 

she would “suffer irreparable harm absent specific enforcement” of the letter 

and the draft lease agreement, and she had “no adequate remedy at law 

because [the letter] involved the transfer of a unique property through a 

contemplated long form lease.” 

Among other relief, Evans sought at least $500,000 in compensatory 

damages and specific performance of the “formal long form lease agreement”

as “contemplated” in the letter. She also sought “attorney[ ] fees as permitted 

by contract or statute.”

Bosa demurred again. Bosa asserted Evans had “re-filed the same core 

complaint with the same core facts, adding only a few fringe details,” and 

that the FAC “fail[ed] in any meaningful way to address the major 

shortcomings” of the original complaint that was the basis of the trial court’s 

sustaining Bosa’s first demurrer. As it did in the first demurrer, Bosa again 

argued, “[t]he FAC reveals no binding agreement of any sort,” and “merely 

proffers (a) a non-exclusive Letter of Intent (‘LOI’) that contains no obligatory 

language of any type, and is expressly subject to conditions, including (not 

surprisingly) consummation of a lease which never occurred, and (b) a long 

form unsigned redlined draft lease . . . reflecting roughly 60 comments and 

proposed edits, addressing numerous material[ ] terms⎯39 of which were 

expressly ‘[n]ot agreed to.’ ” Bosa further asserted “[e]ven the ‘new’ 

promissory estoppel claim is bound and tethered to [the same] ill-suited 

documents, which contain no obligations for anyone to do anything.” 

Evans opposed the second demurrer. She argued the letter did not 

contain the words “ ‘letter of intent’ ” or “ ‘non-binding.’ ” She asserted, 
12

instead, that the letter was an offer, which she accepted, thereby forming a 

valid contract. But in the event the trial court concluded otherwise, she 

asserted the letter “undeniably created a duty on the part of both contracting 

parties to negotiate in good faith towards execution of a long form lease 

agreement.” Evans conceded the letter expressly contained three 

contingencies, but argued the FAC adequately alleged Bosa impermissibly 

prevented satisfaction of the third contingency by refusing to negotiate the 

long form lease in good faith. Evans also asserted the FAC adequately pled a 

claim for promissory estoppel based on “Bosa’s written promise . . . to let the 

Premises to [Evans] subject to the material terms reflected in [the letter].” 

Evans reserved “the right to further amend to the extent the [c]ourt 

rules in favor of Bosa on any issue and the [c]ourt’s ruling evidences the

potential for further amendment.” After receiving the trial court’s tentative 

ruling sustaining the demurrer as to all three causes of action without leave 

to amend, Evans’ attorney argued the court should grant Evans leave to 

amend “to assert the other oral promises and other negotiations and 

discussions and frankly promises that were made by Bosa during the course 

of the negotiation of [the draft lease agreement].” Counsel further explained, 

“there were various promises made by Bosa to the effect of, quote, you know, 

we have a deal. All we need are your renderings. All we need are the final 

equipment lists that you are going to put in this place. There were all these 

promises made to my client upon which she relied to then go out and incur a 

lot of expense that she’s entitled to recover on that cause of action.” In 

response, Bosa’s counsel asserted Evans could not “rely on oral 

representations when the parties are negotiating and require a signed lease 

in order to have a deal.” It again found the “[e]ssential terms were not 

agreed upon in” either the letter or the draft lease agreement. The court
13

cited the same example regarding the parties inability to agree on the 

essential term of the rentable square footage which would determine the 

amount of rent. As it had found in the prior ruling, the draft lease agreement 

“contain[ed] many other significant redline changes, indicating that the 

parties were in the midst of negotiating ‘toward a mutual lease execution.’ ”

Thus, the court concluded the allegations in the FAC were insufficient 

to establish a cause of action for breach of contract, and consequently were 

also insufficient to support a claim for breach of duty to negotiate in good 

faith. The court further concluded the newly asserted promissory estoppel 

claim failed because the “language of the proposal” set forth in the letter did 

not constitute “a clear promise, but rather an invitation to continue 

negotiations.” Finally, the court found Evans had “not indicated how she 

could amend her pleading to allege an enforceable agreement.” The court 

sustained the demurrer without leave to amend and entered a judgment of 

dismissal as to the claims asserted against Bosa.

C. Bosa’s Request for Attorney Fees

After entry of the judgment of dismissal, Bosa moved for $104,545 in 

attorney fees, pursuant to Civil Code section 1717 (section 1717) and a 

prevailing party attorney fee provision in the draft lease agreement. The

trial court awarded Bosa the full $104,545 it had requested in attorney fees. 

Evans timely appealed from both the judgment of dismissal and the order 

awarding Bosa attorney fees. We will discuss the trial court’s order awarding 

attorney fees to Bosa more fully in considering Evans’ challenge to that order, 

post. 
14

DISCUSSION

I.

The FAC Fails to Allege Facts Sufficient to State a Cause of Action

Our review of the judgment of dismissal and the order sustaining 

Bosa’s demurrer to the FAC is de novo. “In reviewing an order sustaining a 

demurrer, we examine the operative complaint de novo to determine whether 

it alleges facts sufficient to state a cause of action under any legal theory.” 

(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162; Angelucci 

v. Century Supper Club (2007) 41 Cal.4th 160, 166.) “If the demurrer was 

sustained, as it was in this case, our function is to determine whether the 

complaint states sufficient facts to state a cause of action; and if it was 

sustained, as it was here, without leave to amend, ‘we decide whether there is 

a reasonable possibility that the defect can be cured by amendment: if it can 

be, the trial court has abused its discretion and we reverse; if not, there has 

been no abuse of discretion and we affirm.’ ” (Careau & Co. v. Security 

Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1381 (Careau), 

quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)

“In reviewing the sufficiency of a complaint against a general 

demurrer, we are guided by long-settled rules. ‘We treat the demurrer as 

admitting all material facts properly pleaded, but not contentions, deductions 

or conclusions of fact or law.’ ” (Blank, supra, 39 Cal.3d at p. 318.) “Further, 

we give the complaint a reasonable interpretation, reading it as a whole and 

its parts in their context.” (Ibid.) We may “take notice of exhibits attached to 

the complaints,” and “[i]f facts appearing in the exhibits contradict those 

alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel 

Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447 (Holland).) We may also 

consider prior versions of the pleading, particularly where previous 
15

allegations are altered or omitted without adequate explanation. (Shoemaker 

v. Myers (1990) 52 Cal.3d 1, 12 (Shoemaker) [appellate court properly 

considered allegations in first complaint when testing the sufficiency of the 

third]; Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1109 (Pierce) [considering 

changes to an unverified pleading in response to a demurrer].)

Applying these principles of review, we conclude, as the trial court did, 

that Evans fails to allege in the FAC sufficient facts to state a cause of action. 

And because Evans has not established how she could amend the complaint 

further to state a legally cognizable claim, we find no abuse of discretion in 

the court’s ruling sustaining the demurrer without leave to amend. 

A. Breach of Contract Claim

To state a claim for breach of contract, a complaint must allege: “(1) 

existence of the contract; (2) plaintiff’s performance or excuse for 

nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a 

result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 

1226, 1239.) 

Here, Evans alleged in the FAC: (1) the letter, attached as Exhibit A,

“constitute[d] a binding contract subject to three stated contingencies”; (2) all 

contingencies “were satisfied with the sole exception of the execution of a long 

form lease agreement” and Evans made good faith efforts to negotiate the 

long form lease agreement; (3) “Bosa breached the parties’ contract by failing 

and refusing to negotiate in good faith, sign and return a written lease 

agreement in substantial conformance with the material terms of” of the 

letter; and (4) Evans suffered damages as a result. Evans asserts we must 

accept these allegations as true and doing so precludes sustaining Bosa’s 

demurrer. Not so. We need not accept “ ‘contentions, deductions or 

conclusions of fact or law’ ” as true. (Blank, supra, 39 Cal.3d at p. 318; see 
16

also Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 

[“ ‘conclusory allegations will not withstand demurrer’ ”].) And where, as 

here, an exhibit to a complaint contradicts an alleged fact, “the facts in the 

exhibits take precedence.” (Holland, supra, 86 Cal.App.4th at p. 1447.) 

On its face, the letter was not a binding contract between Evans and 

Bosa. It was a letter of intent from Bosa’s real estate broker to Evans’ real 

estate broker. It stated, “the Landlord [Bosa] has asked me to provide you 

with . . . the general terms and conditions which the Landlord would consider 

as the basis for a lease agreement.” (Italics added.) Further, as Evans 

concedes, it set forth three explicit contingencies, including “[m]utual 

execution of the Lease.” It concluded by stating, “[w]e look forward to your 

response and to moving toward mutual lease execution.” (Italics added.) 

This language clearly demonstrates the purpose of the letter is to establish a 

starting place for negotiations. It did not state, or otherwise establish, an 

agreement on behalf of Bosa to lease the space to Evans. Rather, it provided 

the initial terms upon which Bosa would consider a lease, and then expressly 

conditioned any such lease on, among other things, mutual execution of a 

formal document setting forth all associated terms. 

Evans nevertheless asserts that “Bosa offered to lease the premises to 

[her] on the terms stated [in the letter],” and that a valid contract was formed 

when she accepted the offer by signing and returning the letter without 

making any changes. We disagree. “It is a basic tenet of contract law that 

creation of a valid contract requires mutual assent.” (Rennick v. O.P.T.I.O.N. 

Care, Inc. (9th Cir. 1996) 77 F.3d 309, 315 (Rennick); Civ. Code, § 1550 

[Mutual assent, or consent, of the parties “is essential to the existence of a 

contract.”].) “ ‘A manifestation of willingness to enter into a bargain is not an 

offer if the person to whom it is addressed knows or has reason to know that 
17

the person making it does not intend to conclude a bargain until he has made 

a further manifestation of assent.’ ” (Rennick, at p. 315, quoting Rest.2d

Contracts (1981) § 26; see also Careau, supra, 222 Cal.App.3d at p. 1389

[quoting the same language].) “Where any of the terms are left for future 

determination or there is a manifest intention that the formal agreement is 

not to be complete until reduced to a formal writing to be executed, there is 

no binding contract until this is done.” (Smissaert v. Chiodo (1958) 163 

Cal.App.2d 827, 830−831 (Smissaert).) A letter that does not indicate an 

intent to be bound absent an additional formal written agreement is

generally considered to be a non-binding letter of intent. (See Rennick, at 

p. 315; Careau at pp. 1381−1382.) 

Here, as we have explained, the letter expressed an initial set of terms 

under which Bosa “would consider” leasing the space to Evans, explicitly 

contingent on mutual execution of a formal lease, among other conditions. 

That contingency is, by its plain language, a clear indication that there would 

be no agreement until the parties executed a formal writing. Since the 

subsequent formal writing, the long form lease, was never executed, there 

was no binding contract between the parties.7 (See Smissaert, supra, 163 

Cal.App.2d at pp. 831−832 [finding no binding contract where writing 

7 Evans references “the prevention doctrine” in a footnote in her opening 

brief, but does not develop the argument and has therefore forfeited the 

argument on appeal. (People v. Aguayo (2019) 31 Cal.App.5th 758, 768 

[failure to present a sufficiently developed argument supported with citations 

to legal authority results in forfeiture of issue on appeal]; Cal. Rules of Court, 

rule 8.883(a)(1)(A) [appellate briefs must state each point under a separate 

heading]; see also Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1184−1184 

[Civil Code section 1511, subdivision 1, establishes a rule, often referred to as 

the prevention doctrine, “that a party’s prevention of performance by another 

party excuses the nonperformance.”].) 
18

specified, “ ‘the validity of said proposed agreement is subject and conditioned 

upon the parties agreeing upon and reducing to writing all terms and 

conditions necessary and incidental to the validity of said proposed

agreement’ ”].) 

Evans argues the letter did not explicitly state the parties will not be 

bound absent a later signed agreement. But, similar to the language at issue 

in Smissaert, the letter did clearly manifest a mutual intent not to be bound

with its express statement that any agreement was contingent upon the 

mutual execution of a formal lease. (See Smissaert, supra, 163 Cal.App.2d at 

pp. 831−832.) Notably, with the exception of the words “Agreed and 

Accepted” above the signature line, there is no language anywhere in the 

letter indicating that either party agreed to do anything. Rather than 

pointing to any such language, Evans attempts to turn the third contingency

on its head, asserting that it somehow represented an agreement to execute a 

long form lease. In doing so, Evans ignores the plain language of the letter: 

“This proposal shall be subject to and contingent upon the following: . . . [¶] 

C. Mutual execution of the Lease.” (Italics added.) 

Evans points out the letter was titled as a “Proposal to Lease,” and not 

a “letter of intent.” Regardless of title, though, the form and content of the 

letter evidenced that it was, essentially, a non-binding letter of intent.

“ ‘Letter of intent’ is not a legal term of art. . . . Generally, ‘letter of intent’

refers to a writing documenting the preliminary understandings of parties 

who intend in the future to enter into a contract.” (Rennick, supra, 77 F.3d at 

p. 315.) “ ‘The purpose and function of a preliminary letter of intent is not to 

bind the parties to their ultimate contractual objective. Instead, it is only “to 

provide the initial framework from which the parties might later negotiate a 

final . . . agreement, if the deal works out.” ’ ” (Ibid., italics added.) 
19

“Commonly a letter of intent is used so that people negotiating toward an 

agreement, who do not yet have one, can get their preliminary inclinations

down on paper without committing themselves.” (Ibid.) 

The plain language of the opening paragraph of the letter makes clear 

that this was precisely what Bosa intended: to put down on paper an initial 

framework that Bosa “would consider as the basis for a lease agreement.”

(Italics added.) Any agreement was then made expressly contingent upon the 

mutual execution of a long form lease, further emphasizing that the letter 

simply represented a starting place, and not an agreement in and of itself. 

Evans’ own characterization of the letter as “ ‘the LOI’ ” in her original 

complaint suggests that she, too, understood that it was intended as a letter 

of intent. As noted, after the trial court concluded, in response to Bosa’s first 

demurrer, that the letter was not a binding contract, Evans removed all 

references to “ ‘the LOI,’ ” and instead referred to the letter only as “Exhibit 

‘A’ ” in the FAC. But Evans cannot plead around the trial court’s conclusion 

regarding the non-binding nature of the letter by simply changing the words 

she uses to describe it. (See Shoemaker, supra, 52 Cal.3d at p. 12 [appellate 

court properly considered allegations in first complaint when testing the 

sufficiency of the third]; Pierce, supra, 1 Cal.App.4th at p. 1109 [considering 

changes to an unverified pleading in response to a demurrer].) 

Evans further asserts that even if the letter is appropriately 

characterized as a letter of intent, it could still be binding, depending on the 

expectation of the parties. Again, though, the express language of the letter

makes clear the intent of the parties was to memorialize a starting place for 

further negotiations, but that any agreement was expressly contingent upon 

mutual execution of a long form lease. The parties then proceeded to 

negotiate the long form lease, but were ultimately unable to reach agreement 
20

on a binding contract. This is not a case, like those that Evans relies upon,

where the writing at issue expressly indicated the parties agreed to execute a

formal written contract memorializing an existing agreement as to all 

material terms. (See, e.g., Mann v. Mueller (1956) 140 Cal.App.2d 481, 

485−487 [finding a binding contract where parties agreed to material terms 

in a writing that stated, “ ‘Both parties shall enter into a satisfactory written 

agreement’ ”]; Gavina v. Smith (1944) 25 Cal.2d 501, 504 [concluding an 

option agreement that attached the lease that was to be executed if the 

option was exercised created a binding agreement without the need for any 

further writing].) 

Finally, Evans contends the trial court improperly relied on the draft 

lease agreement as extrinsic evidence the parties had not reached an 

agreement as the essential terms of a lease. Because our review is de novo, 

we are not bound by the trial court’s analysis. Regardless, in our view, the 

trial court was simply responding to Evans’ own contention that the draft 

lease agreement “demonstrates an agreement as to the terms for which no 

‘redline’ changes [were] made.” As the trial court explained, essential terms 

were not agreed upon in either the letter or the draft lease agreement. 

Rather, the draft lease agreement demonstrates the parties were “in the 

midst of negotiating ‘toward a mutual lease execution,’ ” which never came to 

fruition. 

In sum, we conclude, as the trial court did, that neither the letter nor 

the draft lease agreement formed a binding contract. We therefore conclude 

the allegations in the FAC are insufficient to state a cause of action for 

breach of contract. 
21

B. Breach of Duty to Negotiate in Good Faith Claim

In the alternative, Evans contends the letter is, at a minimum, an 

agreement to negotiate the terms of a lease agreement in good faith, and the 

FAC sufficiently pled a cause of action for breach of that agreement. 

Evans relies exclusively on Copeland v. Baskin Robbins U.S.A. (2002) 

96 Cal.App.4th 1251, 1260 (Copeland) and argues the case supports her cause 

of action for breach of duty to negotiate in good faith. It does not. The 

alleged agreement at issue in Copeland centered around the acquisition of an 

ice cream manufacturing plant. The plaintiff, Copeland, had expressed an 

interest in acquiring the plant from Baskin Robbins, but had made clear from 

the outset that any agreement would be contingent on Baskin Robbins also 

entering into a co-packing agreement, under which Baskin Robbins would

purchase a set amount of ice cream from Copeland over the course of the next 

several years. (Id. at p. 1253.) 

After several months of negotiations, “Baskin Robbins sent Copeland a 

letter [in May 1999], which stated in relevant part: ‘This letter details the 

terms which our Supply Chain executives have approved for subletting and 

sale of our Vernon manufacturing facility/equipment and a product supply 

agreement . . . (1) Baskin Robbins will sell [Copeland] Vernon’s ice cream 

manufacturing equipment . . . for $1,300,000 cash . . . (2) Baskin Robbins 

would agree, subject to a separate co-packing agreement and negotiated 

pricing, to [purchase] 3,000,000 gallons in year 1, 2,000,000 gallons in year 2 

and 2,000,000 in year 3. . . . If the above is acceptable please acknowledge by 

returning a copy of this letter with a non-refundable check for three thousand 

dollars. . . . We should be able to coordinate a closing [within] thirty days 

thereafter.’ Copeland signed a statement at the bottom of the letter agreeing 

‘[t]he above terms are acceptable’ and returned the letter to Baskin Robbins 
22

along with the $3,000 deposit.” (Copeland, supra, 96 Cal.App.4th at 

pp. 1253−1254, italics added.) 

Approximately two months later, Baskin Robbins unilaterally ended 

the negotiations based on “ ‘strategic decisions around the Baskin Robbins 

business.’ ” (Copeland, supra, 96 Cal.App.4th at p. 1254.) Copeland sued 

Baskin Robbins and alleged Baskin Robbins had “entered into a contract 

which provided Baskin Robbins would enter into a co-packing agreement

with Copeland under the terms set out in the May 1999 letter and additional 

terms to be negotiated.” (Id. at pp. 1254−1255.) Copeland further alleged 

that Baskin Robbins breached the agreement by “ ‘refusing to enter into any 

co-packing agreement.’ ” (Id. at p. 1255, italics added.) The trial court 

concluded the May 1999 letter “failed as a contract because the essential 

terms of the co-packing deal were never agreed to” and granted summary 

judgment in favor of Baskin Robbins. (Ibid.) 

On appeal, Copeland asserted the May 1999 letter “constituted a 

contract to negotiate the remaining terms of the co-packing agreement and 

Baskin Robbins breached this contract by refusing without excuse to continue 

negotiations or, alternatively, by failing to negotiate in good faith.” 

(Copeland, supra, 96 Cal.App.4th at p. 1256.) The appellate court noted 

California law “provides no remedy for breach of an ‘agreement to agree,’ ” 

but concluded “[a] contract to negotiate the terms of an agreement is not, in 

form or substance, an ‘agreement to agree.’ ” (Id. at pp. 1256−1257.) The 

court explained, “[i]f, despite their good faith efforts, the parties fail to reach 

ultimate agreement on the terms [at] issue[,] the contract to negotiate is 

deemed performed and the parties are discharged from their obligations. 

Failure to agree is not, itself, a breach of the contract to negotiate.” (Id. at 

p. 1257.) Further, while parties generally do not have a duty to negotiate in 
23

good faith in the absence of a contractual relationship, “when the parties are 

under a contractual compulsion to negotiate[,] . . . the covenant of good faith 

and fair dealing attach[es], as it does in every contract.” (Id. at p. 1260.) 

However, the court also concluded “damages for breach of a contract to 

negotiate an agreement are measured by the injury the plaintiff suffered in 

relying on the defendant to negotiate in good faith. . . . The plaintiff cannot 

recover for lost expectations (profits) because there is no way of knowing 

what the ultimate terms of the agreement would have been.” (Copeland, 

supra, 96 Cal.App.4th at pp. 1262−1263.) Copeland had only claimed 

damages based on lost profits so, although the court held that a cause of 

action for breach of a contract to negotiate an agreement would lie, the court 

concluded summary judgment was appropriate on the alternate ground that 

Copeland had not adequately pled damages. (Id. at p. 1264.)

The letter in this case is unlike the letter at issue in Copeland. Here, 

the letter did not purport to present “ ‘terms which [Bosa, or its executives,

had] approved,’ ” nor did it indicate that Bosa “ ‘would agree’ ” to lease the 

space to Evans subject to a separate agreement, or that the parties “ ‘should 

be able to coordinate a closing [within] thirty days.’ ” (Copeland, supra, 96 

Cal.App.4th at pp. 1253−1254, italics added.) It merely presented general 

terms that Bosa “would consider” as a starting place for further negotiations. 

(Italics added.) Whether a writing constitutes a full-fledged agreement or an 

agreement to negotiate depends on the language of the writing itself. (Los 

Angeles Unified School District v. Torres Construction Corp. (2020) 57 

Cal.App.5th 480, 495.) As we have explained, at most, the letter presented

an offer to begin negotiations, and, as Evans pled in the FAC, Bosa did

negotiate with Evans for more than a year before parting ways.
24

Even if we were to assume the letter represented an agreement to 

negotiate the long form lease in good faith, Evans still does not adequately 

plead facts that would establish a breach of that duty. At most, Evans 

alleged in the FAC that Bosa decided to go a different direction after “more 

than a year of negotiations.” She then stated, in conclusory fashion, that 

“Bosa’s failure and/or refusal to negotiate in good faith a long form lease in

substantial conformance with the material terms of [the letter] represents a 

breach of [the] duty to negotiate in good faith.” She did not provide any 

specific allegations of bad faith in the FAC. 

To the contrary, the draft lease agreement demonstrated the parties 

did engage in good faith negotiations for a full year before Bosa decided not 

to continue negotiating with Evans. At that time, the parties were not yet in 

agreement on a number of significant terms, including for example, the 

representations and warranties Bosa would make regarding the condition of 

the property, which party was responsible for certain repairs and 

maintenance, and a provision precluding Evans from creating “excessive 

noise” in the operation of her fitness studio. As the court in Copeland 

explained, “[f]ailure to agree is not, itself, a breach of the contract to 

negotiate.” (Copeland, supra, 96 Cal.App.4th at p. 1257.) When negotiations

fail, it is almost always the case that one of the parties makes the final 

decision not to continue. Evans does not provide any argument or authority 

to support her assertion that Bosa’s alleged decision to cease negotiations 

after a year constituted a breach of its obligation to negotiate in good faith, if 

it even had such an obligation in the first instance. 

In sum, we conclude the letter, on its face, was not an agreement to 

negotiate and, even if it were, the allegations in the FAC are not sufficient to 
25

establish that Bosa breached that agreement. Thus, the FAC also does not 

state a claim for breach of agreement to negotiate in good faith. 

C. Promissory Estoppel Claim

To adequately plead a cause of action for promissory estoppel, a 

complaint must allege: “(1) a promise, (2) the promisor should reasonably 

expect the promise to induce action or forbearance on the part of the promisee

or a third person, (3) the promise induces action or forbearance by the 

promisee or a third person (which we refer to as detrimental reliance), and (4) 

injustice can be avoided only by enforcement of the promise.” (West v. 

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803.) 

Here, Evans failed to allege a promise for all of the same reasons 

already discussed with respect to the previous causes of action. As the court 

in Copeland explained, “a cause of action for promissory estoppel might lie if 

the defendant made a clear, unambiguous promise to negotiate in good faith 

and the plaintiff reasonably and foreseeably relied on that promise in 

incurring expenditures connected with the negotiation. We may also assume 

for the sake of argument such a cause of action could be based on an implied 

promise to negotiate in good faith. If these propositions are correct, then 

promissory estoppel is just a different rubric for determining the 

enforceability of a contract to negotiate an agreement.” (Copeland, supra, 96 

Cal.App.4th at pp. 1261−1262.)

As with the breach of agreement to negotiate claim, Evans asserts the 

letter constituted a “a clear, albeit contingent, promise to negotiate a long 

form lease agreement.” But as we have already concluded, the letter did not 

contain any binding agreement by Bosa to lease the space, or to negotiate or 

execute a lease. For the same reasons, it also did not contain a promise by 

Bosa to negotiate or enter into a lease. At most, the letter manifested an 
26

intent to memorialize the basic terms and conditions Bosa would consider as 

a starting point for further negotiations. 

D. The Trial Court Did Not Abuse Its Discretion in Denying Evans Leave 

to Amend a Second Time

Evans asserts the trial court abused its discretion by denying her leave 

to amend, and that she could further amend the FAC to state a claim for 

promissory estoppel based on oral promises Bosa made to her regarding the 

lease. No abuse appears on this record.

If an appellant shows, even for the first time on appeal, that her

complaint could be amended to overcome a defense legal theory, we must 

reverse the judgment to allow that amendment. (City of Stockton v. Superior 

Court (2007) 42 Cal.4th 730, 746−747; Ochs v. PacifiCare of California (2004) 

115 Cal.App.4th 782, 796.) However, the appellant has the burden of proving 

an amendment would cure the complaint’s defect. (Blank, supra, 39 Cal.3d 

at p. 318; Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th

1035, 1044.) “[W]hen a complaint contains allegations that are fatal to a 

cause of action, a plaintiff cannot avoid those defects simply by filing an 

amended complaint that omits the problematic facts or pleads facts

inconsistent with those alleged earlier.” (Banis, at p. 1044.)

At the hearing on Bosa’s second demurrer, Evans’ counsel argued: 

“[T]here were various promises made by Bosa to the effect of, quote, you 

know, we have a deal. All we need are your renderings. All we need are the 

final equipment lists that you are going to put in this place. There were all of

these promises made to my client upon which she relied to then go out and 

incur a lot of expense that she’s entitled to recover on that cause of action.” 

In her briefing on appeal, Evans further asserts that discovery has since 

revealed that CBRE stated at one point, to HM, “we are a floor plan away 

from a deal.” 
27

In response to this latter allegation, Bosa filed a motion to strike 

portions of the record and Evans’ opening brief. Bosa asserts we should not 

consider evidence that was not before the trial court at the time it sustained

Bosa’s second demurrer, and we further should not consider any arguments 

based on such evidence. Generally, we do not consider such evidence on 

appeal. (See Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 

[“when reviewing the correctness of a trial court’s judgment, an appellate 

court will consider only matters which were part of the record at the time the 

judgment was entered”].) However, in the context of a demurrer, we accept 

the factual allegations in a complaint as true. And so, we need not consider 

the record or additional evidence to evaluate Evans’ assertion that she could 

amend the complaint to allege Bosa made oral promises that she relied upon. 

We deny Bosa’s motion to strike. 

Even so, the additional allegations are not helpful to Evans. At most, 

Evans asserts Bosa told her they were a floorplan, renderings, and/or an 

equipment list away from a deal. But Evans previously alleged, in both the 

original complaint and the FAC, that Bosa “never repudiated its obligation to 

lease space” to her, and instead told her that she was “ ‘a perfect match’ for 

Pacific Gate,” and that the parties “had a ‘deal.’ ” The additional statements 

Evans now alleges are not materially different than those previously alleged 

statements. None of the statements were promises that Evans could have 

reasonably relied upon, and Evans does not present any authority to suggest 

that they are. Rather, the newly alleged statements are further evidence the 

deal was not yet done, and that Bosa needed additional information before 

entering into a binding agreement. Accordingly, we find no abuse of 

discretion in the trial court’s decision not to grant Evans a second leave to 

amend. 
28

On our independent review, we conclude the trial court properly 

sustained Bosa’s second demurrer without leave to amend, and appropriately

entered judgment of dismissal of the claims asserted against Bosa. 

II.

The Trial Court Did Not Err in Awarding Bosa Attorney Fees

After the trial court entered the judgment of dismissal, Bosa sought an 

award of $104,545 in attorney fees pursuant to section 1717 and the following 

provision of the draft lease agreement:

“If either Party brings an action or proceeding involving the

Premises to enforce the Terms hereof or to declare rights 

hereunder, then the Prevailing Party (as hereafter defined) shall 

be entitled to reasonable attorney[ ] fees in any such proceeding, 

action, or appeal thereon. Such fees may be awarded in the same 

suit or recovered in a separate suit, whether or not such action or 

proceeding is pursued to decision or judgment. The term 

‘Prevailing Party’ shall include, without limitation, a Party who 

substantially obtains or defeats the relief sought, as the case may 

be, whether by compromise, settlement, judgment or the 

abandonment by the other Party of its claim or defense. The 

attorney[ ] fee award shall not be computed in accordance with 

any court fee schedule, but shall be such as to fully reimburse all 

attorney[ ] fees reasonably incurred.” (Boldface omitted.)

Section 1717, subdivision (a) states, “where [a] contract specifically 

provides that attorney[ ] fees and costs, which are incurred to enforce that 

contract, shall be awarded either to one of the parties or to the prevailing 

party, then the party who is determined to be the party prevailing on the 

contract, . . . shall be entitled to reasonable attorney[ ] fees in addition to 

other costs.” “It is [also] settled that a party is entitled to attorney fees under 

section 1717 ‘even when the party prevails on grounds the contract is 

inapplicable, invalid, unenforceable or nonexistent, if the other party would 

have been entitled to attorney’s fees had it prevailed.’ ” (Hsu v. Abbara 

(1995) 9 Cal.4th 863, 870 (Hsu); accord Hom v. Petrou (2021) 67 Cal.App.5th 
29

459, 465 (Hom) [Section 1717 makes an attorney fees provision reciprocal by 

“allow[ing] ‘a party who defeats a contract claim by showing the contract did 

not apply or was unenforceable to nonetheless recover attorney fees under 

that contract if the opposing party would have been entitled to attorney fees 

had it prevailed.’ ”].) 

In opposing Bosa’s motion for attorney fees, Evans did not dispute the 

reasonableness of the fees sought. Rather, she asserted the claims in the 

FAC were “alleged to arise purely” under the letter, not the draft lease 

agreement, and the letter did not contain an applicable attorney fee 

provision. She argued, “[t]he only reference the [letter] makes to attorney 

fees” is that the prevailing party in an action to enforce “a proposed 

confidentiality provision[ ] [in] the lease contemplated by the [letter]” would 

be entitled to fees. Since she made “no such claim” that the proposed 

confidentiality provision had been violated, Evans asserted attorney fees 

were unavailable to Bosa.

In ruling on Bosa’s motion, the trial court noted the letter and the 

unsigned draft lease agreement do contain “different attorney[ ] fees 

provisions.” The draft lease agreement, attached as Exhibit B to the FAC, 

“broadly provide[d] ‘[i]f either Party brings an action or proceeding involving 

the Premises to enforce the Terms hereof or to declare rights hereunder, then 

the Prevailing Party . . . shall be entitled to reasonable attorney[ ] fees in any 

such proceeding, action, or appeal thereon.” The court further noted that 

Evans did not dispute that if the attorney fee provision in the draft lease 

agreement applied, “then [Bosa] would be entitled to attorney[ ] fees as the 

prevailing party.”

The trial court then observed that Evans expressly alleged in both the

original complaint and the FAC that the draft lease agreement reflected the 
30

parties’ agreement as to the material terms that were not redlined in the 

draft lease agreement. The court further observed that Evans’ discovery 

responses “reveal[ed] [she] contended that Bosa had ‘reached agreement on 

all material terms’ ” in the draft lease agreement. Further still, Evans 

herself sought specific performance “ ‘of the LOI and contemplated formal

long form lease agreement’ ” in the original complaint, and also requested 

attorney fees in both the original complaint and the FAC “for her efforts to 

enforce her rights, which included enforcement of ‘a formal long form lease 

agreement.’ ” (Boldface omitted.) The court observed that Evans “may not 

now deny that she sought to enforce the purported lease based on [the draft 

lease agreement].” 

Relying on Hsu, the trial court concluded that “[i]f [Evans] would have

prevailed, the ‘material’ terms of [the draft lease agreement] would have 

applied, as [Evans] alleges the attorney[ ] fees provision was not redlined, 

and [Evans] would have been entitled to attorney[ ] fees. As such, the 

reciprocal requirement of [section] 1717 dictates Bosa is entitle[d] to recover 

attorney[ ] fees.” The court then awarded Bosa the full $104,545 it had 

requested in attorney fees. 

In challenging the trial court’s order awarding Bosa attorney fees, 

Evans raises the same contentions. She asserts there was no legal basis for 

the court to award attorney fees to Bosa because her claims were based solely 

on the contract allegedly formed by the letter, and the letter did not contain 

an applicable attorney fee provision. While the trial court has broad 

discretion to determine whether a litigant is the prevailing party and the 

amount of attorney fees to award, “ ‘a determination of the legal basis for an 

attorney fee award is a question of law to be reviewed de novo.’ ” (Mountain 

Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751; 
31

see also Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [determination of 

prevailing party is reviewed for an abuse of discretion but questions of law 

are reviewed de novo]; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 

132, 142 [“to determine whether an award of attorney fees is warranted 

under a contractual attorney fees provision . . . [w]here extrinsic evidence has 

not been offered to interpret the lease, and the facts are not in dispute, such 

review is conducted de novo”].) Because Evans disputes only the legal basis 

for the award, our review is de novo. 

We independently conclude that Evans’ claims were not based solely on

the letter, for the same reasons the trial court did. Evans alleged in the FAC 

that “Exhibit ‘B’ [the draft lease agreement] reflects the parties were in 

agreement on the material terms of the long form lease agreement,” and the 

draft lease agreement “makes clear, Bosa did not dispute its agreement to 

lease to [Evans] under the terms reflected in [the draft lease agreement] for 

which no ‘redline’ changes were made.” (Boldface omitted.) Further, under 

the promissory estoppel cause of action, Evans alleged she would “suffer 

irreparable harm absent specific enforcement of Exhibits ‘A’ and ‘B’ ”⎯that 

is, the letter and the draft lease agreement. Further still, in the FAC’s 

prayer for relief, Evans sought “specific performance of [the] contemplated

formal long form lease agreement.” We agree with the trial court that Evans 

cannot now disavow that “she sought to enforce the purported lease based on 

[the draft lease agreement].” 

Evans asserts the original complaint and FAC sought only specific 

performance by way of executing a formal lease agreement, and not 

necessarily the draft lease agreement in the form we see in Exhibit B. We 

are not persuaded. It is undisputed that the draft lease agreement was the 

only long form lease contemplated by the parties. Further, the letter clearly 
32

contemplated the inclusion of additional terms in the requisite long form 

lease and, as discussed, Evans alleged in both the original complaint and the 

FAC that the parties agreed to the additional terms in the draft lease 

agreement that were not redlined, including the attorney fee provision. 

There is nothing in either pleading suggesting the trial court should have

enforced a long form lease agreement other than what Evans attached as 

Exhibit B, nor was there any other long form lease agreement for the court to 

enforce. Reading the relevant allegations in the context of the entire original 

complaint and FAC, it is apparent Evans sought to enforce at least the 

material, allegedly agreed upon terms of the draft lease agreement, as well as 

the letter. Indeed, in response to Bosa’s first demurrer, Evans asserted the 

original complaint adequately pled a cause of action for breach of contract 

“based both on the accepted proposal/offer attached to the complaint [Exhibit 

A] and the lease Bosa later refused, in bad faith, to sign [Exhibit B].” 

Evans nevertheless asserts her claims were not brought “ ‘on the 

contract’ ” containing the attorney fee provision, but the cases she relies upon 

do not support her position. 

In Brittalia Ventures v. Stuke Nursery Co., Inc. (2007) 153 Cal.App.4th 

17, the court concluded the prevailing plaintiff was not entitled to an award 

of attorney fees based on a provision in a contract that was not asserted in 

the operative complaint, and was, instead, asserted only by the defendant in 

defense of the asserted claims. (Id. at p. 29.) Although the plaintiff had 

successfully argued the competing contract asserted by the defendant was not 

controlling, the court concluded the plaintiff could not rely on an attorney fee 

provision in the competing contract because the action itself was not based on 

that contract. (Id. at p. 30.) Considering the plain language of section 1717, 

the court explained that an award of attorney fees must be based on a 
33

provision in the contract the action seeks to enforce. (Id. at pp. 28−31; see 

also § 1717 [“In any action on a contract, where the contract specifically 

provides that attorney[ ] fees and costs, which are incurred to enforce that 

contract . . . .” (Italics added.)].) 

Brittalia is inapposite. As discussed, Evans brought the action, at least 

in part, to enforce the draft lease agreement. At a minimum, Evans sought 

specific enforcement of at least those terms not redlined in the draft lease 

agreement. Bosa did not seek to enforce the draft lease agreement as an 

alternative to the letter; rather, Bosa argued, in defense of the claims

asserted against it in the complaint and the FAC, that neither the letter nor 

the draft lease agreement formed a binding contract. 

In Sessions Payroll Management, Inc. v. Noble Constr. Co, Inc. (2000) 

84 Cal.App.4th 671, the court determined a party to a contract was not 

entitled to an award of award attorney fees against a subcontractor who did 

not sign and was not a party to the contract, in part because the 

subcontractor would not have been entitled to such an award if it had been 

the prevailing party. (Id. at p. 674.) Similarly, the prevailing party in 

Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 

also sought attorney fees based on an attorney fee provision in a contract that 

he was not a party to. (Id. at p. 59.) The plaintiff in Khajavi had entered into 

an oral employment agreement with the defendant that admittedly did not 

include an attorney fee provision, but asserted he was entitled to attorney 

fees based on a provision in written employment contracts that other 

employees subsequently entered into with the defendant. (Id. at pp. 59−60.) 

The court concluded the plaintiff could not rely on the employment contracts 

of the other employees, and there was no mutual assent between the plaintiff 

and defendant because they never discussed or agreed to an attorney fee 
34

provision in any form. (Id. at p. 60.) To state the obvious, there are no thirdparty contracts or third-party beneficiary claims at issue in this case; neither 

party was seeking to enforce a contract that it was not a party to. 

The trial court correctly concluded Evans’ claims were based on the 

draft lease agreement. And, as the trial court also correctly concluded, if 

Evans had prevailed and the court had ordered enforcement of the agreed 

upon terms of the draft lease agreement⎯or as Evans put it, the terms “not 

redlined”⎯Evans would have been entitled to attorney fees pursuant to the 

broad attorney fee provision in the draft lease agreement, which was not a 

redlined term. The trial court correctly ruled that because Bosa was 

successful in showing the nonexistence of a contract, the reciprocal 

requirement of section 1717 entitled Bosa to recover its attorney fees.8 (See 

Hsu, supra, 9 Cal.4th at p. 870; Hom, supra, 67 Cal.App.5th at p. 465.)

8 “Where fees are authorized for some causes of action in a complaint but 

not for others, allocation is a matter within the trial court’s discretion.” 

(Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604.) 

Although Evans argues Bosa was not entitled to an award of attorney fees 

under each individual cause of action alleged in the original complaint and 

the FAC, she did not argue the fees should be allocated in the trial court or on 

appeal. 
35

DISPOSITION

The judgment of dismissal and the order awarding Bosa attorney fees 

are affirmed. Bosa is awarded its costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(1) & (2).)

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.