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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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,

Plaintiff and Appellant,

v.

4 EARTH FARMS, LLC,

Defendant and Respondent.

B321574

(Los Angeles County

Super. Ct. No. 20STCV24490)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephen Goorvitch, Judge. Affirmed.

Buus 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 contract 

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 reflected 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 inhouse 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 breach of contract “founded upon an 

instrument in writing.” The complaint alleged that “[i]n or 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, 

California, 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 argued 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 written contracts with 

its trucking vendors, and while he recalled making oral 

agreements with Nunez, he did not recall entering any written 

contracts with him. Becerra further declared that “[w]here 

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

transportation, it is commonly invoiced for transportation at least 

bi-weekly, and 4Earth thereafter makes payment in the ordinary 

course of business. If a trucker is not paid promptly—especially 

for close to $100,000—it ceases providing services, and begins 

barraging the non-paying company with collection calls.” Becerra 

declared he did not recall whether 4 Earth or the shipper agreed 

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

was not time barred, he could not enforce any contract with 

4 Earth because he lacked a proper commercial motor carrier

permit to operate as a sole proprietor.
4

to pay for transportation on the loads reflected in the challenged 

invoices, and he did not recall Nunez ever complaining about 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 declared 

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 was 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 was 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

reflects the following, which appears to be text message

exchanges between July 22 and July 28, 2016:

3

3 Nunez’s handwritten notations are identified here in 

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

have 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 

appears 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

Lompoc Valley Cooling [Becerra]

1501 N. L St

Lompoc, CA 93436
7

Similarly, the exhibit reflects the following exchanges

between Nunez and Becerra on September 24, 2016:

Please arrange to pick up [Becerra]

293-Org Cilantro 4e po#402552

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/xcfcy

4e po#402550

64-Org Squash Zucc. (Yellow Gold Bar)

Please confirm 1 truck bro [Becerra]

I called 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 Zucc 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’s
8

10-4

Hey bro you got anything going up towards 

Watsonville I got 3 plts supplies to that same place 

let me know4

One exchange in the exhibit explicitly referenced “rates.” 

Nunez’s handwritten notations appear 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 calling though

However, other messages also appeared to include

discussion or ongoing negotiations of rates or prices. The 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, the last page of the exhibit appears to reflect text 

messages on October 19, 2016:

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 know 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 the info [Becerra] . . . .

Nunez 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 with extrinsic evidence.

The trial court held the text messages were not “merely 

ambiguous;” rather, they lacked necessary material terms to form 

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

The court concluded the parties entered an oral agreement

governed by the two-year statute of limitations and the claim was
10

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 607, 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 liberally 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 alleged he entered a written contract with 4 Earth 

governing all deliveries for which the complaint seeks damages. 

The trial court granted summary judgment on the ground that 
11

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 lacked 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. Finally, 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,” corresponding with 

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

establishes a four-year limitations period for such actions. Nunez 

contends the text messages “set forth 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 further 
12

contends the messages “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 obligations 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 items 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.

American 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. 

The 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 messages Nunez

proffered were from July 2016, and they discussed specifics of

individual delivery jobs. The messages did not set forth 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 the

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

exchanges on or around July 22 either did not include a price

term, or indicated the price was $750.

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 alleges 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 the 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 provisions

that would govern the parties’ agreement with respect to those

locations.

Similarly, Nunez’s handwritten notations indicate a final

message date of October 19, 2016, yet he alleges 4 Earth

breached the contract by failing to pay for transportation services
14

in January, July, and September 2017. The 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 attempts to explain how the

text messages correspond to the alleged breach of contract, nor

points to any particular message or messages as setting forth 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 Nunez 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 America (1988) 202 Cal.App.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 Earth 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 threeyear 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. at pp. 297–298.) When the 

appellant learned years later that the reinsurance policies were 

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

argued 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 pp. 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 cause 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 nonperformance 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 at
16

pp. 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 the 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, as the trial court 

recognized, the evidence suggests Nunez and 4 Earth 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. They 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 conclude 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 extrinsic 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 

Court (2004) 114 Cal.App.4th 1343, 1350.) However, “extrinsic

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

terms of a written contract.” (Pacific Gas & Electric 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, as

discussed above, the text messages are missing fundamental 

contractual terms altogether. The alleged contract 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 BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.