Bisno Development Enterprises v. Barry Levine , 671 F. App'x 427 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BISNO DEVELOPMENT No. 14-57008
ENTERPRISE, LLC,
D.C. No. 2:13-cv-07961-R-PJW
Plaintiff - Appellant,
v.
MEMORANDUM*
BARRY LEVINE, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel J. Real, District Judge, Presiding
Argued and Submitted November 9, 2016
Pasadena, California
Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.
Bisno Development Enterprise, LLC (“BDE”) appeals from summary
judgment granted to defendants Barry Levine, Ari Schottenstein, Protilus
Investors, LLC, Illus Investors, LP, Ilus GP US, LLC, Ridgemount Investments,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Inc., Alex Iscoe, and David Ulmer (collectively “Levine defendants”), which
rejected its California state law claims of intentional interference with contract and
quantum meruit. As the facts are known to the parties, we repeat them only as
necessary to explain our decision.
I
BDE contends that it had an agreement with Vineyard Development Inc.
(“VDI”) under which it was entitled to receive a share in the profits from the
development of certain property in Santa, Ana, California. BDE further argues that,
by causing the dissolution of a venture between VDI and the Levine defendants to
develop this property, the Levine defendants interfered with its agreement with
VDI.
But, in order to bring an intentional interference with contract claim, BDE
must first demonstrate that it had enforceable contract with VDI. See Pac. Gas &
Elec. Co. v. Bear Stearns & Co., 791 P.2d 587, 589–90 (Cal. 1990). BDE
acknowledges that the record does not contain such a written agreement;
nonetheless it contends that various documents in the record demonstrate the
existence of an oral agreement. BDE points to the declaration of Ryan Ogulnick,
the owner of VDI, who stated that he made an oral agreement under which “BDE
might be eligible for a discretionary success bonus—at [his] sole and absolute
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discretion.” Such a discretionary agreement is unenforceable, however, because
there is no way to determine if there has been a breach. See Moncada v. W. Coast
Quartz Corp., 164 Cal. Rptr. 3d 601, 609–10 (Cal. Ct. App. 2013); Ladas v. Cal.
State Auto. Ass’n, 23 Cal. Rptr. 2d 810, 814–15 (Cal. Ct. App. 1993). Other
documents in the record also fail to provide the terms of an enforceable agreement.
Thus, BDE cannot recover for intentional interference with contract.
II
Alternatively, BDE argues that it should be entitled to recovery in quantum
meruit. Yet, BDE has failed to provide evidence of actual damages. The parties do
not dispute that BDE received $8,000/month under a separate contract with VDC
at The Met, LLC (“VDCATM”), the corporate entity created by VDI and the
Levine defendants to develop the property. BDE contends that its services
increased the value of the property, entitling it to further compensation. However,
under California law, plaintiffs cannot base recovery on the amount of the benefit
conferred on defendants. Maglica v. Maglica, 78 Cal. Rptr. 2d 101, 105–06 (Cal.
Ct. App. 1998).
Further, BDE failed to confer a direct benefit upon the defendants, another
requirement of California law. See id. at 104. It was hired to provide services to
VDCATM, which is not a party to this litigation. BDE requests that we remand the
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case to allow it to amend its complaint to allege that the defendants were alter egos
of VDCATM. However, it has waived its ability to make this request by not
presenting it to the district court or raising it in its opening brief before our court.
See United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011); Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Thus, BDE’s request for relief in
quantum meruit also fails.
AFFIRMED.
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