Filed 10/24/23 Nunez v. 4 Earth Farms CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

JESUS NUNEZ

,

P laintiff and Appellant

,

v.

4 EARTH FARMS, LLC

,

Defendant and Respondent

. B 32 1574

(Los Angeles County

Super. Ct. No. 20STCV24490 )

APPEAL from a judgment of the Superior Court of

Los Angeles County, Stephen Goorvitch , Judge. Affirmed.

Bu u s Law Group and William Buus

, for Plaintiff and

Appellant

.

Neufeld Marks and Paul Marks

, for Defendant and

Respondent

.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳2 Plaintiff Jesus Nunez sued 4 Earth Farms, LLC (4 Earth)

in 2020 , alleging 4 Earth breached the parties’ written cont ract

when it refused to pay him for trucking services he provided in

2016 and 2017. 4 Earth sought summary judgment of Nunez’s

claim, asserting there was no written contract and any oral

contract was time barred. Nunez contended the written contract

was reflect ed in a series of text messages he exchanged with a

4 Earth employee . The trial court granted summary judgment

.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nunez is in the commercial transportation business

. 1 In

2020, Nunez delivered a batch of invoices to 4 Earth seeking

payment for trucking services he provided between June 30, 2016

and September 2, 2017. The invoices totaled $96,575. 4 Earth

refused to pay the invoices

. According to Nunez, 4 Earth ’s in

house counsel told him it was “ ‘ not clear whether any contract or

agreement existed with 4Earth, ’ ” or “ ‘ who agreed to this

pricing. ’ ” Further, counsel indicated that “ ‘after 4 years, with no

one here that knows anything about this, and pricing that there’s

no evidence we agreed to, I don’t see how we can pay these

invoices.’ ”

In June 2020, Nunez filed a complaint against 4 Earth

asserting a single claim for breac h of contract “founded upon an

instrument in writing

. ” The complaint allege d that “[i]n o r about

June of 2016, 4 Earth Farms and Mr. Nunez exchanged several

1 The parties dispute whether Nunez provided trucking

services to 4 Earth as a sole proprietor, or through his

corporation, South Side Transportation, Inc. We need not

address that issue for purposes of this appeal and refer generally

to “Nunez.”3

digital text messages in which Mr. Nunez agreed to transport

market produce for 4 Earth Farms from certain locations within

California to 4 Earth Farms’ s place of business in Commerce,

C alifornia, and 4 Earth Farms agreed to pay Mr. Nunez for such

transportation of market produce.”

4 Earth moved for summary judgment . 4 Earth

acknowledged it had used Nunez’s trucking services, providing

evidence that Nunez’s company appeared in 4 Earth’s vendor

database no later than 2004, and it had records of paying Nunez’s

corporation “ [ u ] p until 2019.” However, 4 Earth argu ed it does

not enter into written contracts with the trucking companies it

uses, it had not entered into a written contract with Nunez , and

any claim based on an oral contract was barred by the statute of

limitations. 2 In support of the motion, 4 Earth offered the

declaration of Jesus Becerra, a transportation manager, who

indicated 4 Earth does not typically enter w ritten contracts with

its trucking vendors , and while he recalled making oral

agreements with Nunez, he did not recall entering a ny written

contract s with him

. Becerra further declared that “[w]here

4Earth (and not the shipper) has agreed to pay for

trans portation, it is commonly invoiced for transportation at least

bi

- weekly, and 4Eart h thereafter makes payment in the ordinary

course of business. If a trucker is not paid promptly

— especially

for close to $100,000

— it c e ases providing services, and begins

b arraging the non

- paying company with collection calls.” Becerra

declar ed he did not recall whether 4 Eart h or the shipper agreed

2 4 Earth additionally contended that even if Nunez ’s claim

was not time barred, he cou ld not enforce any contract with

4 Earth because he lacked a proper commercial motor carrier

permit to operate as a sole prop rietor.4

to pay for transportation on the loads reflected in the challenged

invoices, and he did not recall Nunez ever complaining abou t not

being timely paid for services he provided to 4 Earth.

In opposition to the motion

, Nunez argued a written

contract was reflected in text messages he exchanged with

Becerra between July 2016 and September 2017

. Nunez d eclared

he was unable to attach the original messages to his summary

judgment briefing because they were stored on an old cell phone

and did not transfer to his newer phone. Nunez explained, “The

only way I knew to create a hard copy version of those text

messages at that time w as to cut and paste them to a separate

document. By doing so, unfortunately, the identity of the texter

is not shown and neither is the date, but I have handwritten the

dates of the texts and have indicated the identity of the texter.

That information wa s based upon information obtained from my

cell phone at that time as well as my present memory of events.”

The resulting exhibit was 13 pages of exchanges , with

Nunez ’s notations. For example, the first page of the exhibit

reflect s the following

, which ap pear s to be text message

exchanges between July 22 and July 2 8 , 2016 : 3

3 Nunez’s handwritten notations are identified here in

italics. Nunez used first names or nicknames in his notations; we

h ave used last names, as noted, in brackets. Only the first page

of the exhibit indicated a year

— 2016. Nunez’s handwritten

notations appeared to indicate the message were in chronological

order, bearing dates on page 1: July 22, 25, 26, 27, and 28; page 2 :

July 28 (continued), July 29 and 30; page 3: July 30 (continued),

August 1 and 2 ; page 4 : September 1, 2, 3, 6, 7 ; page 5:

September 7 (continued), 8, 9 ; page 6: September 9 (continued)

, 10, 12, 13, 14; page 7: September 14 (continued )

, 15, 16, 17;5 July 22

You got a truck in mendota for 10 plts bro [ Becerra ]

Yes I do [ Nunez ]

Ok I’ll send you the info [ Becerra ]

July 2016

Got it thanks [ Nunez ]

[ writing illegible ] What’s the pric [ e ] bro [ Becerra ]

$750 [ Nunez ]

Ok thanks [ Becerra ]

[ 25 ] Can you pickup half load in mendota [ Becerra ]

No truck till morning

Ok no problem

[ 26 ] Need a truck up north? [ Nunez ]

Checking [ Becerra ]

Working on los banos load we’re confirming [ Becerra ]

Ok let me know [ Nunez ]

????? [ Nunez ]

I’m checking sorry give me a minute [ Becerra ]

It’s a go I’ll send you the pickup number [ Becerra ]

Loading today: PU# 161036 [ Becerra ]

Three Star Organic Cantaloupes

560 9s

Pick up Address:

461 G STREET [ Becerra ]

LOS BANOS, CA, 93635

page 8: September 17 (continued), 19, 20; page 9: September 20

(continued); page 10: September 24, 28; page 11: September 28

(continued); page 12: October 8, 10, 12; page 13: October 19. It

ap pears all dates were in 2016

.6 SHIPPING # 209 826

- 8449

Please confirm

Got it thanks [ Nunez ]

[ 27 ] Good morning he [ y ] bro you got an ETA on the

cantaloupe [ Becerra ]

I told my driver [ Nunez ]

Ok thanks [ Becerra ]

Everything good [ Becerra ]

Good thanks [ Nunez ]

Got a mendota got a truck [ Becerra ]

How many pallets [ Nunez ]

9 watermelon 1 honeydew [ Becerra ]

Let me know if you can’t bro [ Becerra ]

Got it

FYI this place is open 24hrs [ Becerra ]

What place [ Nunez ]

Here [ Becerra ]

I was talking to your driver this morning he didn’t

know it was open he said he would’ve come

earlier [ Becerra ]

I didn’t know either. I told him because most places

are open at that time

I’m in the neighborhood of you can come out [ Nunez ]

Almost home bro [ Becerra ]

Damn!!! [ Nunez ]

What time you get out [ Nunez ]

[ 28 ] Good morning any work today? [ Nunez ]

Give me a minute [ Becerra ]

Tick tock anything [ Nunez ]

4E PO#395826 (Oceano) [ Becerra ]

18

- plts Org Mini Watermelons

Pick up address

Lompo c Valley Cooling [ Becerra ]

1501 N. L St

Lompoc, CA 934367 Similarly, the exhibit reflect s the following exchange s

between Nunez and Becerra on September 24, 2016:

Please arrange to pick up [ Becerra ]

293

- Org Cilantro 4e po#40 2552

211

- Org Mini peppers 4E PO#402551

4e po#402549

387

- Org Zucchini med

527

- Org Zucchini fcy/xcy

4e po#402548

319

- Org squash med

477

- Org Squash fcy/xc fc y

4e po#402550

64

- Org Squash Zucc. (Yellow Gold Bar)

Please confirm 1 truck bro [ Becerra ]

I calle d cooler they say 2 trucks, its about

45 pallets [ Nunez ]

Yup send 2 trucks bro [ Becerra ]

That’s a big 10

- 4 [ Nunez ]

Thank you for everything [ Nunez ]

No problema [ Becerra ]

Good morning any melons today [ Nunez ]

Checking [ Becerra ]

Melons??? Lompoc???? [ Nunez ]

No melons today gonna see about Lompoc [ Becerra ]

926

- Org Spinach

The rest fill with Z ucc 429 total let me know what

you can load to fill one truck I will send po’s shortly

So just one truck right

Yes load spinach fill zucchini

There working on PO’s8 10

- 4

Hey bro you got anything going up towards

Watsonville I got 3 plts supplies to that same place

let me know 4

O ne exchange in the exhibit explicitly referenced “ rates .”

Nunez’s handwritten notations ap pear to indicate that on

September 7, 2016, he and Becerra texted :

Please confirm

1 Lompoc [ Becerra ]

Lompoc just called me, they have 2 truckloads they

need moved out. FYI

Do you want to check on that [ Becerra ]

Who calls you from over there [ Nunez ]

Another thing just to be on the same page, rates:

$75 per pallet on partials [ Becerra ]

$1100 out of Mendota/Los Banos [ Becerra ]

$950 out of Lompoc [ Becerra ]

10

- 4 [ Nunez ]

Don’t want to get anybody in trouble

Yea I know they shouldn’t be callin g though

However

, other messages also appeared to include

discussion or ongoing negotiation s of rates or prices

. T he exhibit

reflects a text exchange on July 29, 2016, in which Becerra sent

Nunez a pickup address, Nunez confirmed, and Becerra added:

“They didn’t harvest cilantro and spinach he’s just loading all the

squash go ahead and bring that home we’ll talk about price.”

Likewise, t he last page of the exhibit appears to reflect text

messages on October 19, 201 6:

4 Although this last section suggests a back and forth

exchange, Nunez’s notations identified Becerra as the only texter

.9 Can you get a half load at Lompoc [ Becerra ]

Yes [ Nunez ]

Ok bro send you the info [ Becerra ]

Try to get a melon load [ Nunez ]

Melons are done up that way [ Becerra ]

Well let’s follow them [ Nunez ]

How much you paying out of Nogales [ Nunez ]

Let you kn ow in a bit [ Becerra ]

4E PO#405172 (8 plts) [ Becerra ]

509

- Org Mini Sweets [ Becerra ]

Please confirm [ Becerra ]

Hey if I got 10 plts of supplies how much will charge

us from here to Bakersfield tomorrow [ Becerra ]

$750 [ Nunez ]

Did you get the $$ for Nogales [ Nunez ]

1200 [ Becerra ]

That’s a good number [ Nunez ]

I’ll confirm on Bakersfield [ Becerra ]

Can you get a Lompoc today [ Becerra ]

The load would be for early at Santa Cruz can

you do it [ Becerra ]

Yes [ Nunez ]

Loads in Santa Cruz [ Becerra ]

Yes I will send you th e info [ Becerra ]

. . . .

N unez asserted the messages were writings that formed

the basis of his breach of contract claim. At the summary

judgment hearing, Nunez further argued any ambiguity in the

text messages could be resolved w ith extrinsic evidence

.

The trial court held the text messages were not “merely

ambiguous ; ” rather, they lack ed necessary material terms to form

a contract and were “akin to invoices upon a prior agreement

. ”

T he court concluded the parties entered an oral agreement

governed by the two

- year statute of limitation s and the claim was10

therefore untimely

. The court granted summary judgment to 4

Earth. Nunez timely appealed

.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate if there are no triable

issues of material fact and the moving party is entitled to

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);

Regents of University of California v

. Superior Court (2018) 4

Cal.5th 60 7, 618.) A defendant moving for summary judgment

has the initial burden of showing a cause of action lacks merit

because the plaintiff cannot establish an element of the cause of

action or there is a complete defense. (Code Civ. Proc., § 437c,

subd. (p)( 2); Aguilar v

. Atlantic Richfield Co

. (2001) 25 Cal.4th

826, 853 (

Aguilar ) .) If the defendant satisfies this initial burden,

the burden shifts to the plaintiff to present evidence

demonstrating there is a triable issue of material fact. (Code Civ.

Proc., § 437c, subd. (p)(2); Aguilar , at p. 850.)

“ ‘ “ ‘ “We review the trial court’s decision de novo,

considering all the evidence set forth in the moving and opposing

papers except that to which objections were made and

sustained.” ’ [Citation.] We liberal ly construe the evidence in

support of the party opposing summary judgment and resolve

doubts concerning the evidence in favor of that party.” ’

[Citation.] ” ( Hampton v

. County of San Diego (2015) 62 Cal.4th

340, 347 ( Hampton ) .)

II. The Trial Court Properly Granted Summary

Judgment

Nunez allege d he entered a written contract with 4 Earth

govern ing all deliveries for which the complaint seeks damages

. The trial court granted summary judgment on the ground that11

Nunez could not establish the existence of a written contract. We

find no error.

A. 4 Earth satisfied its burden of showing Nunez

could not establish an element of his claim

As the party moving for summary judgment, 4 Earth had

the initial burden of showing Nunez’s claim lack ed merit. (Code

Civ. Proc., § 437c, subd. (p)(2); Aguilar

, supra , 25 Cal.4th at

p. 853.) 4 Earth offered evidence that it did not have a written

contract with Nunez and it typically does not enter formal

written contracts with truckers , but instead places individual

orders by phone and sometimes by text message. 4 Earth also

argued Nunez could not prove the existence of a written contract

or produce a written, signed agreement containing the material

terms of any purported contract . F inally, in the absence of a

written contract, 4 Earth argued any breach of contract claim

would be based on an oral contract and thus time

- barred. The

trial court properly concluded 4 Earth made a sufficient initial

showing to shift the burden to Nunez to demonstrate a triable

issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);

Aguilar

, supra , 25 Cal.4th at p. 850.)

B. Nunez failed to demonstrate the existence of a

written contract

Nunez’s complaint asserts a claim for “breach of contract

founded upon an instrument in writing,” correspond ing with

Code of Civil Procedure section 337, subdivision (a ), which

establishes a four

- year limitations perio d for such actions. Nunez

contends th e text messages “set for th the most important terms

of the contract agreed upon between Nunez and Becerra,”

specifically that Nunez would “ perform [ ] trucking services for

4Earth when called upon for agreed

- upon rates .” He further12

contends the message s “clearly define what each party was

required to do, and provide a reasonable basis for determining

the existence of a breach.” Nunez’s theory is that the written

messages between the parties governed their relationship and set

forth their obligat ions as a whole. 5

“[A] claim is founded upon a writing only when it ‘relies

upon the language within a written instrument or contract.’

[Citation.]” ( JP Morgan Chase Bank

, N

. A

. v

. Ward (2019) 33

Cal.App.5th 678, 686.) The writing “must contain the item s of

the agreement and the obligations sued upon .” ( Bank of America

v

. Security Pacific Nat

. Bank (1972) 23 Cal.App.3d 638, 645 .) A

written contract “ results when there is a writing containing all

terms and acceptance by the party to be charged .” ( Mitchell v

.

Am erican Fair Credit Assn

. (2002) 99 Cal.App.4th 1345, 1351

( Mitchell ). )

The evidence Nunez proffered to oppose summary

judgment failed to establish a written instrument or contract.

T he complaint alleges a specific theory that the breaches

identified in the complaint

— 4 Earth’s nonpayment of the

invoices

— were governed by the parties’ written contract, which

Nunez asserts is contained in the text messages. The text

messages do not support this theory.

For example, Nunez alleges that “ [ i ] n or around June

2016 ,” he and 4 Earth exchanged text messages that set forth the

5 At the summary judgment hearing, Nunez argued in the

alternative that “each communication constitutes a separate

contract.” The trial court rejected this argument and Nunez did

not raise it in his appellate briefing. Any such argument is

therefore abandoned . ( Case v

. State Farm Mut

. Auto

. Ins

. Co

. (2018) 30 Cal.App.5th 397, 402 [“[O]ur review is limited to

contentions adequately raised in [appellant’s] briefs”].)13

parties’ agreement. Yet, the earliest text messag es Nunez

pro f fered were from July 2016, and they discussed specific s of

individual delivery jobs

. The messages did not set fort h the

terms of an agreement

, including payment, or provide a

description of the parties’ obligations. Nunez further alleges

4 Earth failed to pay him for transportation services he

performed on or around June 30, 2016, out of Mendota. But t he

text messages do not begin until July 22, 2016

, and they do not

reference, describe, or memorialize any agreement as to services

prior to that date

. Nunez next alleges 4 Earth failed to pay for

transportation services he provided on or around July 22, 2016,

out of Mendota, totaling $1,100. However, the text message

exchange s on or around July 22 either did not include a price

term, or indicated the price was $75 0.

Even assuming, as Nunez argues, the message referencing

rates for “partials” and deliveries out of Mendota, Los Banos, and

Lompoc was a material term of the parties’ agreement that

governed all deliveries from those locations, the message was not

sent until September 7, 2016

. However, Nunez allege s 4 Earth

breached the written contract by failing to pay 59 invoices for

services he provided prior to that date. Nunez also alleges

4 Earth breached th e contract by failing to pay for transportation

services out of Pismo Beach, Watsonville, Santa Cruz, West

Sacramento, and Santa Maria, yet the text messages included no

discussion of rates out of those cities, or any general pro visions

that would govern the parties’ agreement with respect to those

locations.

Similarly, Nunez’s handwritten notations indicate a final

message date of October 1 9, 2016, yet he alleges 4 Earth

breached the contract by failing to pay for transportation services14

in January, July, and September 2017

. T he text messages

include no general terms by which it would be possible to

determine what the parties’ agreement was as to the January,

July, or September 2017 transportation services, or whether

4 Earth breached the parties’ agreement. Other than identifying

the “rates” message, Nunez neither attempt s to explain how the

text messages correspond to the alleged breach of contract

, nor

points to any particular message or messages as setting for th the

terms that would establish that 4 Earth breached the contract by

failing to pay the challenged invoices.

Indeed, the messages do not establish Nunez had any

general obligation to perform deliveries, as he argues, “when

called upon.” For example, around July 25, 2016, Becerra asked

Nunez by text message if he could “pickup half load [ sic ] in

[M] endota

. ” 6 Nu nez declined this request and Becerra replied it

was “no problem.” This was not indicative of an agreement or

promise sufficiently definite to establish the terms of any future

performance

.

“ ‘ When the evidence clearly shows

. . . that the only (and

the complete) subject matter that is under consideration is left for

further negotiation and agreement, there is no contract, not for

vagueness or indefiniteness of terms but for lack of any terms. ’

6 4 Earth argues on appeal “there is no indication of who is

doing the talking” in the text messages. However, 4 Earth did

not object to the admissibility of the text messages or Nunez’s

handwritten notations below and the trial court did not exclude

them. On appeal from an order granting summary judgment, we

consider all evidence in the papers, except that to which

objections were sustained. ( Hampton

, supra , 62 Cal.4th at

p. 347 .) Thus, we accept and consider Nunez ’s handwritten

notations

.15

[Citation.] ” (

Kruse v

. Bank of Am erica (1988) 202 Cal.A pp.3d 38,

59

. ) The text messages do not reflect a contract governing the

deliveries Nunez performed for 4 Earth. Instead, the parties

“ ‘ left for further negotiation and agreement ’ ” the fundamental

question of whether Nunez would deliver produce for 4 E arth at

all. ( Ibid .)

Citizens Casualty Co

. of New York v

. Otis Clark & Co

. (1971) 19 Cal.App.3d 294 ( Citizens ) is instructive. In Citizens

, the respondent insurance brokers orally agreed to obtain three

year term reinsurance policies for the benefit of the appellant.

The brokers subsequently issued a cover letter and binder for the

reinsurance . The cover letter indicated the brokers had obtained

reinsurance as previously agreed; the binder did not specify the

term of the reinsurance. ( Id

. a t pp. 297

– 298.) When the

appellan t learned years later that the reinsurance policies were

only for one year, it sued for breach of contract . The appellant

argu ed the letter and binder constituted a written agreement

,

and a four

- year statute of limitations applied under Code of Civil

Procedure section 337

. ( Id

. at p p

. 298

– 299.)

The court of appeal rejected the argument, concluding that

the letter was “merely a statement that the oral agreement has

been performed. It is not sufficient that the c ause of action is in

some way remotely or indirectly connected with an instrument in

writing or that the instrument is a link in the chain establishing

the cause of action. The instrument itself must contain the

contract to do the thing for the nonperform ance of which the

action is brought

. . . . [¶ ] Before a duty may be implied from a

writing, the writing should be one which created the duty

. [Citation.] The letter

. . . did not purport to itself establish the

terms of an agreement . . . .” ( Citizens

, supra , 19 Cal.App.3d at16

p p. 299

– 300.) Instead, the letter “reminded the receiver of the

oral agreement to which the letter was referring and reported

upon the progress [ the respondent brokers ] had made in fulfilling

its oral agreement. The letter, coupled with the binders, could be

considered the work product of an agreement more readily than it

could be considered the agreement itself. As such, it is evidence

of the agreement rather than th e agreement.” ( Id

. at p. 300.)

Similarly, here, the text messages do not purport to

establish the terms of an agreement as Nunez has alleged. They

may be evidence of an agreement, and, a s the trial court

recognized, the evidence suggests Nunez and 4 Eart h had an oral

contract. Nunez provided trucking services for 4 Earth, and

4 Earth acknowledged it used and paid for Nunez’s services “up

until 2019

. ” But to the extent the parties had a contract

governing the terms of their arrangement, as in Citizens , the

writings Nunez produced do not themselves purport to establish

the terms of that agreement . The messages convey piecemeal

details and logistics for various individual deliveries

. Th ey are at

best “evidence of the agreement rather than the agreement.” 7

( Citizens

, supra , 19 Cal.App.3d at p. 300 ; Lucioni v

. Bank of

America

, N

. A

. (2016) 3 Cal.App.5th 150, 165 [oral contract is not

treated as a written contract for statute of limitations purposes

“simply because a party offers some written evidence of

performance”] .)

7 Since we con clude Nunez failed to establish the existence of

a written contract, we need not consider 4 Earth’s argument that

any contract was void because Nunez did not possess a valid

motor carrier permit.17 C. The court properly declined to consider extrinsic

evidence in analyzing the text messages

Nunez also argues the trial court erred when it “refused ” to

consider ext rinsic evidence in analyzing the text messages

. Specifically, Nunez contends “to the extent the trial court found

[the text messages ] to be uncertain,” it should have considered

the declarations of Nunez and Becerra to clarify any ambiguities

.

We disagree.

A court may consider extrinsic evidence to ascertain the

meaning of an ambiguous term in a contract. ( Wolf v

. Superior

C our t (2004) 114 Cal.App.4th 1343, 1350.) However, “e xtrinsic

evidence is not admissible to add to, detract from, or vary the

terms of a written contract.” ( Pac ific Gas & Elec tric Co

. v

. G

. W

. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 39.) Here,

the text messages fail to establish a written contract, but this

failure is not the result of any ambiguous term

. Rather, a s

discussed above, the text messages are missing fundamental

contractual terms altogether

. The alleged cont r act cannot be

forced into existence by reference to other documents , and the

trial court properly declined to consider extrinsic evidence for

that purpose. ( Ibid

. ; see also Mitchell

, supra , 99 Cal.App.4th at

p. 1351 [written contract must contain all terms].)18 DISPOSITION

The judgment is affirmed. Respondent to recover its costs

on appeal.

NOT TO B E PUBLISHED IN THE OFFICIAL

REPORTS

ADAMS , J.

We concur:

LAVIN

, Acting P. J.

EGERTON

, J.