Filed 11/25/02

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

SUSAN WANGER,

Plaintiff and Appellant,

EMC MORTGAGE CORPORATION,

Defendant and Respondent.

F037422

(Super. Ct. No. 604565-2)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Stephen J.

Kane and Edward Sarkisian, Jr., Judges.

John L. Flowers for Plaintiff and Appellant.

Rosenthal, Withem & Zeff, Michael L. Withem and Matthew D. Reinstein for

Defendant and Respondent.

-ooOoo-

Appellant Susan Wanger appeals from the grant of summary judgment in favor of

the mortgage company that foreclosed upon real estate that secured her loan. Wanger

contends triable issues of material fact exist concerning her claims for breach of contract,

negligence, violation of statutory duties, and interference with prospective economic

advantage. We agree and reverse judgment.

*Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified

for publication with the exception of parts I., II., III., V., VI., and VII. of DISCUSSION.

PROCEDURAL BACKGROUND

Wanger filed a complaint on January 28, 1998, to set aside the trustee’s sale of a

single family residential real estate located on West Alluvial Avenue in Fresno,

California (the Property). After a series of demurrers, on November 22, 1999, Wanger

filed her fifth amended complaint against respondent EMC Mortgage Corporation (EMC)

and others. The fifth amended complaint alleges claims for breach of contract,

negligence, violation of statutory duties, and interference with prospective economic

advantage.

On August 21, 2000, EMC filed a motion for summary judgment or in the

alternative summary adjudication, a separate statement of undisputed facts, and

supporting declarations. On September 8, 2000, Wanger filed an opposition to the

motion for summary judgment, a response to EMC’s separate statement, and supporting

declarations. On September 15, 2000, EMC filed evidentiary objections to the

declaration of Wanger and to exhibits A through Q attached to the declaration of her

attorney.

The court issued a written tentative ruling granting the motion for summary

judgment. Wanger did not request oral argument. On September 21, 2000, the superior

court adopted its tentative ruling as the order of the court and sustained EMC’s

evidentiary objections to five documents attached as exhibits D, G, K, M and Q to the

declaration of Wanger’s attorney. Wanger filed a timely notice of appeal.

FACTUAL BACKGROUND

In 1991, Wanger obtained a loan from First California Mortgage Company (First

California)1 and signed a promissory note and a deed of trust on the Property. In October

1993, Wanger and First California discussed a loan modification reducing the interest

1For purposes of this opinion, we refer to First California Mortgage Company and

Mortgage Service America Co., a company with which it appears to have merged, as First

California.

rate and the monthly payments. A modification document was sent to Wanger, which

she signed and returned to First California. Wanger thought that the modification had

become effective, but uncertainty arose as to whether the modification was effective.

Part of this uncertainty appears to have been caused when First California was unable to

locate the loan file.

First California eventually took the position that the modification was not

effective. Wanger had not been making monthly payments under the loan and, based on

the original loan terms, First California claimed $26,616.96 was owed. Wanger paid

$24,999.35 by cashier check on February 3, 1995, but continued to dispute the amount

owed and claimed violations of the Real Estate Settlement Procedures Act of 1974

(RESPA), as amended, 12 United States Code section 2601 et seq. Also, in February

1995, Wanger leased the Property to a husband and wife and, presumably, she had

moved from the Property before renting it.

In April 1995, Wanger asserts she reached an agreement with First California to

resolve her claims. Under the agreement, First California was to credit the sum of

$7,352.75 against her loan and Wanger was to commence regular monthly payments of

$1,470.55 on June 1, 1995. From July through November of 1995, Wanger claims she

sent her monthly mortgage payments to First California.

In the meantime, First California sold Wanger’s loan to EMC. The transfer was

effective on April 17, 1995. Both First California and EMC sent notice of the transfer to

Wanger at the Property address. However, Wanger had moved to Washington and did

not receive these notices. In an April 14, 1995, letter, Wanger had notified First

California of her new mailing address in Seattle.

In September 1995, Wanger deeded the Property to her daughter, Lisa Marie

Keller. In her deposition testimony, Wanger testified Keller was the executor of her

estate and she transferred title to the Property to Keller for estate planning purposes.

In December 1995, EMC caused the law firm acting as trustee under the deed of

trust to file a notice of default. Wanger states she first learned of EMC and its rights as

assignee of the note and deed of trust on December 9, 1995, when she received a notice

of trustee’s sale from the trustee. As a result of Wanger’s communications with the

trustee, this notice of trustee’s sale was rescinded. Also in December, Wanger obtained

the eviction of the tenants who had stopped paying rent, and she listed the Property for

sale with a real estate broker.

During 1996 and 1997, Wanger and EMC were not able to settle their dispute.

EMC resumed nonjudicial foreclosure proceedings. A notice of default was recorded on

September 16, 1997. EMC purchased the Property with a credit bid at the January 13,

1998, trustee’s sale. Two weeks later, Wanger began her lawsuit against EMC and the

trustee. The law firm that acted as trustee under the deed of trust settled with Wanger in

June 1999 and is no longer involved in this lawsuit.

DISCUSSION

I. Wanger Did Not Waive the Right to Appeal*

EMC contends that “Wanger waived the right to appeal the Summary Judgment

when she accepted the trial court’s tentative ruling without oral argument.” We reject

this argument because, among other things, it would not advance the economical use of

judicial resources. As to the legal issue, we will not create a new bright line rule that

waiver of the right to appeal must be implied when a party does not pursue oral argument

after a trial court has issued its tentative ruling. As to the factual issues of intent and

authorization raised under the general principles of law governing waiver of the right to

appeal, there is an insufficient basis for implying that counsel for Wanger intended to

relinquish that right and Wanger authorized its relinquishment. (Cf. Linsk v. Linsk (1969)

70 Cal.2d 272, 278; 1 Witkin, Cal. Procedure (4th ed. 1997) Attorneys, § 283, pp. 351-

352 [an express waiver by counsel made without consideration or benefit to appellant

must be authorized by appellant].)

*See footnote, ante, page 1.

II. Standard of Review for Summary Judgment*

The standards of review applicable to a motion for summary judgment are well

known and we do not undertake to reiterate all of the rules here. (See Code Civ. Proc.,

§ 437c (hereafter section 437c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826

(Aguilar); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591.) Nevertheless, we set forth

some of the general principles governing motions for summary judgment or summary

adjudication as background for the more specific principles that are significant in this

case.

A. General Principles

We independently review whether a triable issue of material fact exists and

whether the moving party is entitled to summary judgment as a matter of law. (Merrill v.

Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Notwithstanding the rule of independent

appellate review of the existence of a triable issue of material fact, an abuse of discretion

standard is applied to the superior court’s rulings on (1) evidentiary objections (Walker v.

Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169) and (2) matters

committed to its discretion by the express language of section 437c. (See id., subds. (b),

(e).)

A triable issue of fact exists when the evidence reasonably permits the trier of

fact, under the applicable standard of proof, to find the purportedly contested fact in favor

of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850.)

A defendant moving for summary judgment bears the burden of persuasion

throughout the legal analysis of the motion and bears the initial burden of producing

evidence “to make a prima facie showing of the nonexistence of any triable issue of

material fact .…” (Aguilar, supra, 25 Cal.4th at p. 850.) If the moving party carries the

*See footnote, ante, page 1.

burden of production, then it shifts to the opposing party to make a prima facie showing

of the existence of a triable issue of fact. (Ibid.)

Before analyzing either the showing made by the moving party (step two) or the

showing made the opposing party (step three), the first step for a court analyzing a

motion for summary judgment is to “identify the issues framed by the pleadings” because

the motion is directed to the opponent’s allegations and “showing there is no factual basis

for relief on any theory reasonably contemplated by the opponent’s pleading.” (AARTS

Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see

Brantley v. Pisaro, supra, 42 Cal.App.4th at p. 1602 [describing the three-step analysis].)

B. Specific Principles

This appeal raises questions that require the application of specific principles

regarding the identification of issues framed by the pleadings, the identification of

undisputed facts, and the review of evidence and the inferences drawn from that

evidence.

1. Issue Identification

The moving party’s contribution to the first step of identifying the issues framed

by the pleadings is set forth in the documents supporting its motion, which include: “(1)

Notice of motion by [moving party] for summary judgment or summary adjudication or

both; [¶] (2) Separate statement of undisputed material facts in support of [moving

party’s] motion for summary judgment or summary adjudication or both; [and] [¶] (3)

Memorandum of points and authorities in support of [moving party’s] motion for

summary judgment or summary adjudication or both .…” (Cal. Rules of Court, rule

342(c).)2

When a moving party seeks summary adjudication, “whether separately or as an

alternative to the motion for summary judgment, the specific cause of action, affirmative

2All further rule references are to rule 342 of California Rules of Court.

defense, claims for damages, or issues of duty must be stated specifically in the notice of

motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

(Rule 342(b).) Similarly, Rule 342(d) provides, “The Separate Statement of Undisputed

Material Facts in support of a motion must separately identify each cause of action,

claim, issue of duty or affirmative defense, and each supporting material fact claimed to

be without dispute with respect to the cause of action, claim, issue of duty, or affirmative

defense.”

When a case, like this one, is poorly pled, the first step of identifying the issues

framed by the pleadings requires more effort and has increased importance. In this case,

the fifth amended complaint may be regarded as poorly pled because it contains four sets

of paragraphs grouped together that are labeled as causes of action, but those paragraph

groups contain more than one theory of liability.3 For instance, the third count for breach

of statutory duties refers to violations of the provisions of RESPA and violations of “the

provisions of Civil Code Sections 2924(b), (f) and (h) [sic].” Thus, what Wanger refers

to as her third cause of action actually contains multiple causes of action, i.e., theories of

liability.

Both EMC’s separate statement and notice of motion state EMC is seeking

summary adjudication of the following issue:

“ISSUE – Each of [Wanger’s] Causes of Action must fail as a matter

of law because there is no evidence to support her claims that EMC …

either breached a written agreement with her or violated an applicable

statute in its handling of her loan, through and beyond foreclosure.”

The catchall manner in which EMC chose to frame the issues to be summarily

adjudicated creates two problems. First, as argued by Wanger, EMC failed to comply

3For purposes of this opinion, (1) each of the four sets of paragraphs grouped together in

the fifth amended complaint and labeled by Wanger as a “cause of action” shall be referred to as

a “count” (see 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 242, p. 657)

and (2) the term “cause of action,” consistent with its meaning in section 437c, subdivision (f),

shall mean a separate theory of liability. (See Lilienthal & Fowler v. Superior Court (1993) 12

Cal.App.4th 1848, 1853.)

with the requirements of Rule 342(d). Second, it is difficult to determine if EMC has

addressed all of the theories of liability reasonably contemplated by the fifth amended

complaint.

a. Compliance with Rule 342

Wanger argues EMC violated Rule 342(d) by not separately identifying each

cause of action in its separate statement and then separately identifying each material fact

without dispute with respect to the cause of action. EMC’s single, catchall statement of

the issues does not comply with Rule 342(d) as it applies to motions for summary

adjudication. A single, catchall statement covering four counts containing several causes

of action wrongly creates the impression that each of the facts following the statement of

the issue is material to each cause of action and, therefore, a dispute as to any one of

those facts precludes summary adjudication as to each cause of action. One consequence

of the single, catchall statement of the issues is that the review of the motion by the

superior court and this court is more burdensome because the courts must identify (1) the

specific theories of liability challenged by the motion and (2) the facts that are material to

each of the challenged theories of liability.

Nevertheless, Wanger had adequate notice of the ground on which EMC sought to

eliminate some of Wanger’s theories of liability and, thus, the superior court did not

abuse its discretion by failing to deny EMC’s motion as procedurally defective. (See

Frazee v. Seely (2002) 95 Cal.App.4th 627, 636 [moving party’s failure to comply with

Rule 342 is, in court’s discretion, proper grounds to deny motion].)

However, the preferred course is to enforce the requirement that a moving party

must identify the undisputed facts that relate to a particular cause of action or other issue

to be summarily adjudicated by setting forth the issue and immediately following it with

the facts material to that issue in one column and the supporting evidence in another

column. (See Rule 342(h).) After the statement of the first issue to be adjudicated and

the material facts and supporting evidence, the second issue to be adjudicated should be

set forth, followed by the material facts and supporting evidence. In this case, it would

not have been erroneous to summarily deny the motion without prejudice to EMC

refiling it with a more specific,4 properly organized separate statement that separately

stated the issues to be summarily adjudicated and identified which facts were material to

which causes of action, i.e., theories of liability.

b. Identification of theories of liability pled

The identification of the issue to be adjudicated is important because a motion for

summary adjudication may be granted only if it completely disposed of “a cause of

action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ.

Proc., § 437c, subd. (f)(1).) In this case, some or all of the counts in the fifth amended

complaint contain more than one cause of action for purposes of summary adjudication.

In such a situation, a defendant may choose to move for summary adjudication of

each cause of action even if it is combined with other causes of action in a single count in

the complaint. (6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 242, p.

657.) Conversely, a defendant, like EMC, may choose to challenge an entire count

containing more than one cause of action, rather than challenging each cause of action

separately. The latter choice has its risks, especially when the moving party’s separate

statement fails to comply with Rule 342. One risk is that a moving party may fail to

identify a theory of liability reasonably contemplated by the opponent’s pleadings and

that theory may survive the motion for summary adjudication and defeat the motion for

summary judgment. In addition, a dispute over a fact material to one cause of action, but

not material to other causes of action in the same count, will save the entire count. Once

we have determined that a fact material to one theory of liability in a count is in dispute,

we will end our analysis as to the entire count because of the broad way in which EMC

framed the issue to be adjudicated. Concerns for procedural due process preclude

4For illustrative purposes, a more specific statement of an issue to be summarily

adjudicated would have been: “ISSUE No. [] — The cause of action for violation of RESPA

fails because EMC complied with the provisions requiring notice of a servicing transfer.” (See

Rule 342(h).)

10.

consideration of whether other causes of action pled in the count could have been

summarily adjudicated on the record before us. In particular, the party opposing the

request was not put on notice of a narrower request. (See 3 Weil & Brown, Cal. Practice

Guide: Civil Procedure Before Trial (The Rutter Group 2002) ¶¶ 10:88-10:89, p. 10-31

(rev. #1, 2002) [the rationale for not deciding more narrow issues is that the opposing

party may have limited the triable issues of fact it raised to defeat the motion without

intending to concede other issues].)

The application of these principles to the counts pled in this case will be addressed

in the parts of the Discussion dealing with particular counts.

2. Identification of Undisputed Material Facts

Section 437c, subdivision (b) requires the parties to identify all the material facts

upon which they rely. This requirement is stated with more particularity in Rule 342(d)

which provides: “The Separate Statement of Undisputed Material Facts in support of a

motion must separately identify … each supporting material fact claimed to be without

dispute with respect to the cause of action, claim, issue of duty, or affirmative defense.”

Consequently, the parties must include in their respective separate statements all the facts

upon which the motion or the opposition is founded; the superior court is not required to

search for the presence of a relevant fact elsewhere in the record.

Whether a superior court is subject to an absolute prohibition on consideration of

facts and evidence not referenced in the separate statements is an issue that we do not

reach in this case because the decision of the superior court did not rely on facts or

evidence not referenced in the separate statements. A conflict over this question exists

between the Second District, which has adopted the “Golden Rule of Summary

Adjudication” prohibiting consideration of a fact not set forth in the separate statements

(United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337; see Roger H.

Proulx & Co. v. Crest-Liners, Inc. (2002) 98 Cal.App.4th 182, 198) and the Fourth

District, which disagrees with this rule. (See San Diego Watercrafts, Inc. v. Wells Fargo

Bank, N.A. (2002) 102 Cal.App.4th 308, 311.)

11.

In the present case, EMC’s separate statement sets forth 17 separately numbered

facts that it contended were undisputed. Wanger conceded six of these; the matters

disputed by Wanger will be addressed in the part of the Discussion to which the facts are

relevant.

3. Evidence and Inferences

The connection between a material fact and the evidence that establishes whether

or not it is disputed is made by the parties in their separate statements. Each of the

material facts stated in the moving party’s separate statement “shall be followed by a

reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b).) Similarly,

each material fact an opposing party contends is disputed shall be included in the

opposing party’s separate statement and “shall be followed by a reference to the

supporting evidence.” (Ibid.) The evidence supporting each party’s position concerning

a particular material fact must be set forth in the second column of its separate statement

along with a citation, including reference to the exhibit, title, page and line numbers, to

where the evidence can be found. (Rule 342(d), (f).)

A material fact can be established or controverted by direct evidence or by an

inference reasonably drawn from the evidence. Therefore, in analyzing whether or not

the material facts are in dispute, we must consider all of the evidence and all of the

inferences reasonably drawn therefrom, and must view such evidence in the light most

favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)

An issue of material fact may not be resolved based on inferences, if contradicted

by other inferences or evidence. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25

Cal.4th at p. 856.) “[T]he court may not weigh the plaintiff’s evidence or inferences

against the defendants’ as though it were sitting as the trier of fact,” but must determine

the question of law of “what any evidence or inference could show or imply to a

reasonable trier of fact.” (Aguilar, at p. 856.) Where the evidence and inferences would

allow a reasonable trier of fact to find the underlying fact in favor of a plaintiff in

12.

accordance with the applicable standard of proof, then a defendant’s motion for summary

judgment must be denied. (Id. at p. 850.)

A reviewing court must consider all the evidence properly identified in the papers

submitted, “except that to which objections have been made and sustained by the

court ….” (Code Civ. Proc., § 437c, subd. (c); Barber v. Marina Sailing, Inc. (1995) 36

Cal.App.4th 558, 561, fn. 2.) Where a plaintiff does not challenge the superior court’s

ruling sustaining a moving defendant’s objections to evidence offered in opposition to the

summary judgment motion, “any issues concerning the correctness of the trial court’s

evidentiary rulings have been waived. [Citations.] We therefore consider all such

evidence to have been ‘properly excluded.’ [Citation.]” (Lopez v. Baca (2002) 98

Cal.App.4th 1008, 1014-1015.)

In this case, the trial court sustained EMC’s objections to certain documents

attached as exhibits D, G, K, M and Q to the declaration of counsel for Wanger. Wanger

has challenged those rulings in her appeal.

III. Breach of Contract*

EMC contends Wanger’s breach of contract claim must fail because (1) the

purported 1993 loan modification never became a binding and enforceable contract or, if

it did, Wanger breached the modification document by failing to pay property taxes; (2)

the reinstatement provisions in the deed of trust required Wanger to pay the entire loan

arrearage, which she did not do; and (3) Wanger’s failure to perform her obligations to

pay principal and interest and to pay property taxes and insurance precludes her claim of

breach.

A. 1993 Loan Modification Agreement

1. Undisputed Facts from EMC’s Separate Statement

EMC’s separate statement establishes as undisputed the facts set forth in the

following two paragraphs.

*See footnote, ante, page 1.

13.

Wanger claims to have signed a two-page loan modification agreement in 1993,

but admits that she never saw any exhibits to it. Wanger claims the 1993 loan

modification agreement reduced her monthly principal and interest payment, which had

been $1,470.55, by approximately $300. In a April 14, 1995, letter to First California,

Wanger stated she was confirming an agreement to settle damages on her loan and

“[r]egular loan payments will commence on June 1, 1995 in the amount of $1470.55.”

Wanger admits (1) she never received any letters written by First California confirming

that her loan was actually modified in 1993, and (2) she did not have the purported 1993

loan modification document notarized or recorded. For loans guaranteed by the Federal

National Mortgage Association (Fannie Mae), a Fannie Mae approval may be a

prerequisite for a modification, but it in no way obligates either the lender or the

borrower to actually enter into the loan agreement.

Wanger made no property tax payments directly to the taxing authority after 1992.

2. EMC’s Inferences and Legal Contentions

Based on the foregoing facts, EMC infers (1) First California did not sign the 1993

loan modification agreement; (2) the parties did not intend the 1993 modification to be a

binding contract unless it was signed on behalf of First California, notarized, and

recorded; and (3) assuming the 1993 modification was binding, Wanger breached its

terms by not paying property taxes as required by paragraph 4 of the loan modification

agreement.

EMC contends Wanger’s contract claim based on the 1993 modification must fail

because there is no signed writing that satisfies the statute of frauds contained in Civil

Code section 1624 and because Wanger is unable to establish an essential element of her

contract claim, i.e., that she performed her obligations under the contract. (See BAJI

No. 10.85.)

3. Wanger’s Inferences and Legal Contentions

In response, Wanger advocates the competing inferences that (1) First California

signed and then lost the fully executed 1993 modification or, alternatively, the 1993

14.

modification became binding when she signed it and (2) she was not required to pay the

Property taxes directly to the taxing authority. Wanger infers First California signed the

1993 modification based on the following evidence.

Wanger testified in deposition that she learned First California signed the

document by talking with Donna Mazzone of First California. Wanger’s declaration says

that she was told in a telephone conversation with First California that the modification

of her loan was effective as of November 1993. In addition, First California prepared the

1993 modification by filling in blanks on a form agreement and sending the modification

to Wanger. It also sent her a copy of Fannie Mae’s October 7, 1993, letter approving the

modification. From these statements and acts by First California, Wanger infers First

California signed the modification or, alternatively, intended to be bound by its written

offer once Wanger expressed her acceptance by signing it. Wanger argues these

inferences are reasonable because, among other things, First California would not have

forwarded her the Fannie Mae approval letter if it intended to reject the very terms it had

considered and placed in the form used for the 1993 modification.

As to the payment of property taxes, Wanger claims the payment was to be made

by the lender from an impound account established from part of the monthly payment

and, therefore, she was not contractually obliged to pay property taxes directly to the

taxing authority.

4. Analysis of Inferences and Legal Contentions

a. Signature on the 1993 modification

The issue of whether or not First California signed the 1993 modification is a

question of fact. Because of the conflicting inferences that may be drawn from the

evidence, the issue is triable. (Code Civ. Proc., § 437c, subd. (c).) The inability to locate

a signed copy of the 1993 modification does not preclude a claim that it was breached. In

Robinson v. Thornton (1969) 271 Cal.App.2d 605, the plaintiff was able to prove the

existence and terms of an enforceable contract to repurchase land using an unsigned

photocopy of the document and other parol evidence.

15.

In addition, EMC has not established the 1993 modification is subject to the

statute of frauds set forth in Civil Code section 1624. EMC does not identify, nor is it

apparent, which of that statute’s seven provisions may apply. First, subdivision (a)(1) of

Civil Code section 16245 does not apply because the 1993 modification might have been

performed in a year. (See Lacy v. Bennett (1962) 207 Cal.App.2d 796, 800-801

[performance within a year of oral agreement for “a long-term loan” was possible though

not probable; statute of frauds in Civ. Code, § 1624 did not apply].) Second, Civil Code

section 1624, subdivision (a)(6)6 does not apply because Wanger is not a real property

purchaser who assumed indebtedness secured by a deed of trust. Third, Civil Code

section 1624, subdivision (a)(7) does not apply to contracts to extend credit secured only

by a single-family residential property.

If, on remand, EMC does not show that a statute of frauds requires the 1993

modification to be signed on behalf of First California, then Wanger may be able to

establish the 1993 modification is a binding contract without a signature. “Whether it

was the parties’ mutual intention that their oral agreement to the terms contained in a

proposed written agreement should be binding immediately [or upon offeree’s signature]

is to be determined from the surrounding facts and circumstances of a particular case and

is a question of fact for the trial court. (Schwartz v. Shapiro (1964) 229 Cal.App.2d 238,

248 …; Columbia Pictures Corp. v. DeToth [(1948)] 87 Cal.App.2d [620,] 629.)

Evidence as to the parties’ understanding and intent in taking what actions they did take

is admissible to ascertain when or whether a binding agreement was ever reached.”

(Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 358.)

5Civil Code section 1624, subdivision (a)(1) requires a writing subscribed by the party to

be charged when the agreement “by its terms is not to be performed within a year from the

making thereof.”