Arif Khan Global v. State Bank of India CA2/3

Filed 9/20/23 Arif Khan Global v. State Bank of India 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
ARIF KHAN GLOBAL, INC., B311534
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV06024)
v.
STATE BANK OF INDIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Law Office of Robert M. Silverman and Robert M.
Silverman, for Plaintiff and Appellant.
Squire Patton Boggs, Scott W. Coyle, Helen H. Yang,
Chassica Soo, and Shaun Kim, for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Arif Khan Global, Inc. (Akgus) appeals from a trial
court order sustaining a demurrer to its complaint against
defendant State Bank of India (State Bank). Akgus asked State
Bank to assist it with a large-scale international sugar
transaction involving a letter of credit as the method of payment.
The operative complaint alleges Akgus entered a written contract
with State Bank to facilitate the letter of credit transaction and
that State Bank breached the contract by withdrawing its
participation. The complaint further alleges State Bank made
false representations in connection with the contract
negotiations. The complaint asserts claims for breach of contract,
promissory estoppel, fraud, and negligent misrepresentation.
State Bank demurred, arguing Akgus did not state a claim as to
any of the four counts against State Bank. The trial court
agreed. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We take the relevant facts from the operative third
amended complaint and attached exhibits. (Rufini v.
CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 302; Hill v. Roll
Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300.)
The Sugar Contract and Letter of Credit Transaction
Akgus is a re-seller that facilitates international
commodities sales. Akgus executed a contract in April 2017 (the
Sugar Contract) to supply hundreds of thousands of tons of sugar
to Dubai-based White Rays Food Stuff LLC (White Rays). Akgus
subsequently contracted to purchase sugar from a supplier in
Brazil. State Bank was not a party to either of these contracts.
It became involved in the transaction later and, the complaint
alleges, entered a separate written contract with Akgus.
2
The Sugar Contract required White Rays and its bank,
India Overseas Bank (India Overseas), to prepare a documentary
letter of credit (the Letter of Credit). A letter of credit is a
document used to facilitate payment in international
transactions. It is prepared by a buyer’s bank and guarantees
that the buyer will pay the “beneficiary” of the letter of credit
(that is, the seller) on time and in the proper amount. The letter
of credit also sets forth logistical details for the transaction.
(1 McCullough, Letters of Credit (1st ed. 2023) The Nature of a
Letter of Credit, § 4.02[1][a]; see also Paramount Export Co. v.
Asia Trust Bank, Ltd. (1987) 193 Cal.App.3d 1474, 1480; Dibrell
Bros. International S.A. v. Banca Nazionale Del Lavoro (11th Cir.
1994) 38 F.3d 1571, 1578–1579 (Dibrell).)
According to the complaint, a typical letter of credit
transaction proceeds as follows. The buyer’s bank acts as the
“issuing” bank, meaning it prepares and sends the letter of credit
to the seller’s bank. The seller’s bank serves as the “receiving”
and “advising” bank, meaning it will receive the letter of credit
and advise the seller.1 After receiving the letter of credit, the
supplier ships the goods and submits an onboard bill of lading (a
document from the shipper acknowledging receipt of goods) to the
seller. The seller then submits an invoice, certificate of origin,
and packing list, as specified in the letter of credit, to its bank.
The seller’s bank verifies these documents, as specified in the
letter of credit, and submits them to the buyer’s bank. The
1 An advising bank is responsible for informing the
beneficiary that the letter of credit has been issued. (Cal. U.
Com. Code, § 5102.) An advising bank must also “satisfy itself as
to the apparent authenticity of the credit . . . .” (1 McCullough,
Letters of Credit (1st ed. 2023) Advising Bank, § 3.02[7][c][ii][B].)
3
buyer’s bank then pays the seller’s bank, and in turn, the seller’s
bank pays the supplier. Although the complaint describes the
transaction generally as involving a “buyer” and “seller,” Akgus
intended to act as an intermediary and re-seller, with its bank
acting as the “seller’s bank” with respect to the letter of credit.
The Sugar Contract required the Letter of Credit to be
“confirmed” by a bank. Confirmation is an optional step that
provides an additional level of security: the confirming bank
would guarantee payment to Akgus and the sugar supplier, up to
a designated “exposure limit,” if India Overseas failed to pay.
(See Cal. U. Com. Code, § 5107, subd. (a) [“A confirmer is directly
obligated on a letter of credit and has the rights and obligations
of an issuer to the extent of its confirmation”]; see also Dibrell,
supra, 38 F.3d at pp. 1579–1580.) Akgus’s first sugar supplier
wanted an American bank to confirm the Letter of Credit.
Akgus, White Rays, and the sugar supplier initially agreed to use
Wells Fargo.
Akgus first contacted non-party State Bank of India
(California) (State Bank California) “for the purpose of
processing” the Letter of Credit. Akgus described the proposed
transaction as follows:
“To summarize we are re-selling Sugar with no
risk to us and our bank. Our buyer makes funds
available and issues transferable [Letter of Credit] to
us. Then our bank transfers the same [Letter of
Credit] to our seller. [¶] After the goods are loaded
our seller submits documents as per the contract to
our bank (SBI) for payment. SBI replaces our seller’s
invoice with our invoice and submits to our buyers
[sic] bank in Singapore. Singapore banks [sic] pays
our bank SBI for this transaction. SBI, keeps our
share of profit and pays our seller as per the
4
transferred [Letter of Credit] only after receiving
funds from Singapore bank. This is repeated for the
full contract.”
State Bank California referred Akgus to its subsidiary,
State Bank.
The complaint alleges State Bank told Akgus that it could
confirm the Letter of Credit and asked Akgus to “convince” the
sugar supplier to use State Bank for this purpose. State Bank
told Akgus that it had exposure limits and a Relationship
Management Application (RMA) with India Overseas. This RMA
meant State Bank could interface directly with India Overseas
without the need to involve an intermediary bank to facilitate the
transaction. In addition, State Bank told Akgus that Wells Fargo
may require additional restrictions that could delay the
transaction.
The first sugar supplier refused to agree to have State
Bank act as the confirming bank, but it later withdrew from the
transaction. Akgus procured a second sugar supplier: CMA
Trading (CMA). According to the complaint, White Rays and
CMA “agreed to have [State Bank] process the entire [Letter of
Credit] transaction—receiving/advising bank, confirming bank,
transferring bank and provide payment.” State Bank would thus
“earn a tremendous amount of money from taking advantage of
currency exchange rates, transfer fees and confirmation fees.”
The complaint alleges that Akgus and State Bank entered
into an express written contract under which State Bank agreed
to “receive the [Letter of Credit], add its confirmation to the
[Letter of Credit], and transfer the [Letter of Credit]” to CMA.
Pursuant to “custom and practice,” the contract was based on
“email, texts, documentation and telephone calls among the
parties.” The complaint attaches several documents purporting
5
to reflect Akgus’s and State Bank’s correspondence that
constituted the contract:2
Attachment A. On May 8, 2017, Akgus contacted State
Bank California by e-mail to request assistance with the Letter of
Credit. State Bank California stated on May 10 that it was
“looking into it.”
Attachment B. On May 22, Akgus provided State Bank
with a draft of the Letter of Credit. State Bank responded on
May 24 and requested several revisions. On May 30, Akgus
informed State Bank that its first sugar supplier requested that
the Letter of Credit be transferred to the supplier’s bank as part
of the transaction. Akgus also provided State Bank with a list of
revisions to the Letter of Credit that it intended to request from
White Rays. State Bank indicated on June 1 that the revisions
“seem Ok.” Later that day, Akgus forwarded State Bank’s e-mail
to K. Ramaswamy (Ram), Akgus’s financial advisor, and asserted
that State Bank “will issue the certificate that the documents are
as per the [Letter of Credit] after checking for discrepancies.”
Attachments C and D. Akgus sent Ram a draft of the
Letter of Credit on June 8. This draft of the Letter of Credit lists
Wells Fargo as the confirming bank.
Ram sent a draft of the Letter of Credit to White Rays on
June 8 and informed White Rays that the draft had been
“approved by our Bank.” The draft that Ram sent was not itself
attached to the complaint.
Ram sent an e-mail to Akgus on June 9 with the subject
“Mail to the Buyer WhiteRays.” The message addressed
2 These communications were exchanged between
representatives for the parties, but in the interest of clarity, we
refer to the parties rather than the individuals.
6
Nathaniji, a WhiteRays representative. Ram indicated State
Bank informed him that it had an RMA with India Overseas and
that State Bank “can add their confirmation if it is acceptable to
the Refinery in Brazil.” State Bank told Ram that Wells Fargo
would “add a few clauses and there will be delay when documents
go through different Banks.” The e-mail continued:
“I told [the Chief of State Bank] that the
Refinery is comfortable with Welsfargo [sic] which is
one of the TOP 10 Banks in the World where as
[State Bank] ranks at 62. [¶] However I am talking
to the Refinery about [State Bank] and trying to
persuade them to accept the [State Bank]
confirmation. I am Awaiting their final approval. [¶]
If they agree we can ask [India Overseas] to advise
the [Letter of Credit] directly to [State Bank] who
will be advising to us and also confirm the [Letter of
Credit]. So [Letter of Credit] Advising Bank, Our
Bank, [Letter of Credit] Confirming Bank are one
which is [State Bank]. This is subject to the Brazil
Refinery accepting [State Bank].”
On June 9, Akgus told State Bank that it had convinced its
first sugar supplier to accept State Bank as the confirming bank.
However, Akgus continued, “The supplier has accepted [State
Bank] confirmation instead of Wells Fargo on the condition that
[State Bank] provide some kind of assurance that after receiving
and verifying the documents, [State Bank] will pay
immediately/fast. Please let us know what can be done.”
On June 10, Akgus sent Ram a document described as
“Final Comments to [Letter of Credit] Draft with [State Bank],
Los Angeles Agency, USA confirmation.” This draft of the Letter
of Credit lists State Bank as the confirming bank.
7
On June 13, State Bank responded to Akgus’s June 9 e-
mail, but did not acknowledge Akgus’s request regarding the
timing of payment. Instead, State Bank provided Akgus with a
blank form titled “Application for Transfer of Letter of Credit.”
This application would allow Akgus to request that State Bank
transfer the Letter of Credit “to the Second Beneficiary” (i.e., the
sugar supplier). The application required Akgus to specify
logistical details about the transfer and agree to several terms
and conditions. The same e-mail and attachment appear to be
the content of Attachment D.
Attachment E. On June 22, Akgus told State Bank that it
was finalizing an agreement with replacement sugar supplier
CMA. Akgus asked State Bank to confirm that it could transfer
the Letter of Credit to CMA’s bank. State Bank responded that it
was “ok with the arrangement and can transfer the [Letter of
Credit] to your supplier’s Bank.”
Attachment F. On June 26, Akgus e-mailed state Bank,
writing: “Our supplier is considering getting the [Letter of Credit]
transferred within [State Bank]. He banks with Chase Bank.”
Akgus asked State Bank to confirm or explain that CMA would
not need to open an account with State Bank. State Bank
responded:
“There is no need of opening an account with
us. We will be sending the SWIFT message to your
supplier’s bank that the referenced [Letter of Credit]
is transferred in the Supplier’s name by you and that
we would remit the amount to the his [sic] bank
account (with any US Bank) as per the terms of
Transfer.
“We will keep the original [Letter of Credit]
with us and the supplier can submit the documents
directly to us.
8
“We will credit his account on receipt of
payment from the [Letter of Credit] opening bank.”
Attachment G. Akgus contacted State Bank again on
June 28 to convey that CMA was “concerned about getting paid
under the [Letter of Credit] . . . .” Akgus asked State Bank to
“[p]lease confirm the following”:
“1) The [Letter of Credit] will be issued to us
Arif Khan Global Inc from [India Overseas], Hong
Kong and will come to State Bank of India, Los
Angeles.
“2) This [Letter of Credit] will be confirmed by
State Bank of India, Los Angeles.
“3) State Bank of India, will transfer this
[Letter of Credit] to our supplier, CMA internally in
State Bank of India, Los Angeles and will send swift
message to CMA Bank which is CHASE for this
[Letter of Credit] transfer in CMA name.
“4) CMA submits all documents as per [Letter
of Credit] directly to State Bank of India, Los
Angeles.
“5) State Bank of India, Los Angeles
negotiate[s] the [Letter of Credit] and transfers cash
to CMA account in Chase Bank.
“GUARANTEE OF [LETTER OF CREDIT]
PAYMENT––
“Since State Bank of India, Los Angeles is
confirming the [Letter of Credit], STATE BANK
Guarantees payment against the [Letter of Credit] to
CMA (Supplier) and Arif Khan Global both after the
documents are submitted as per the [Letter of Credit]
and Uniform Customs. State Bank of India, Los
Angeles operates in USA as per FDIC guidelines and
abide by them.”
9
State Bank responded to Akgus on June 28 and stated:
“If the documents are as per the [Letter of
Credit] we will certify them and send to the opening
Bank. Once we receive the payment from the
opening Bank, the same will be remitted to your
supplier as per terms of the Transfer of [Letter of
Credit].
“State Bank of India is the largest Bank in
India and one of the Fortune 500 companies. The Los
Angeles Agency of SBI is in existence in USA since
the last 35 years and we have a successful track
record for all our Trade Finance customers.
“If the documents submitted are as per [Letter
of Credit] then you should be sure of getting the
payment.”
According to the complaint, the Letter of Credit “was
to be sent to [State Bank] in the early part of July 2017” and
CMA required the Letter of Credit to be transferred to it by
July 15, 2017.
Attachment H. State Bank contacted Akgus by text
message on July 7 and instructed it to “hold the [Letter of
Credit]. [S]ome clarifications required to be sorted out.” Later
that day, State Bank informed Akgus that it “will not be able to
confirm the [Letter of Credit].”
The complaint alleges it was “impossible” for Akgus to find
another bank to replace State Bank in time to complete the
transaction. Akgus canceled the transaction altogether. Akgus
also lost the opportunity to facilitate a second transaction that
was predicated on Akgus’s ability to demonstrate that it had
conducted a large-scale sugar transaction in the past.
10
The Lawsuit
Akgus filed its original complaint in February 2019
asserting six causes of action: (1) breach of contract,
(2) promissory estoppel, (3) fraudulent inducement, (4) negligent
misrepresentation, (5) breach of guaranty, and (6) breach of
implied in fact contract. The complaint named State Bank
California as a defendant. In March 2019, Akgus filed a first
amended complaint replacing State Bank California with State
Bank.3 State Bank demurred to the first amended complaint in
May 2019.
In November 2019, the trial court sustained the demurrer
to the breach of contract claim, concluding the complaint did not
adequately allege the terms of any written contract. However,
the court noted Akgus asserted it could establish the existence of
a binding written agreement by attaching relevant written
contracts and communications, thus the court granted leave to
amend. The court also sustained the demurrer to the promissory
estoppel claim with leave to amend on the basis that the
complaint did not allege facts supporting its general allegations
that State Bank intended to induce reliance and that Akgus’s
reliance was reasonable. The court overruled the demurrer to the
fraudulent inducement and negligent misrepresentation causes of
action, noting the demurrer argued Akgus failed to allege where
the misrepresentations took place, but did not also address
whether Akgus sufficiently alleged all of the requisite elements of
those claims. Akgus agreed to remove the breach of guaranty
and breach of implied in fact contract causes of action, and the
3 The operative complaint also names two individual
defendants who are not parties to this appeal.
11
court sustained the demurrer to those counts without leave to
amend.4
In December 2019, Akgus filed a second amended
complaint. The complaint asserted claims for (1) breach of
contract, (2) promissory estoppel, (3) fraudulent inducement, and
(4) negligent misrepresentation. The complaint also attached
nine documents. State Bank demurred to the second amended
complaint in January 2020, and in July 2020, the trial court
sustained the demurrer with leave to amend.
Akgus filed a third amended complaint in July 2020 and a
corrected third amended complaint in January 2021. The
complaint asserted the same four causes of action as the second
amended complaint. It also attached the same nine documents
that were attached to the second amended complaint and added
additional pages to Attachments A, B, C, and D.
State Bank successfully demurred to the third amended
complaint. As to the breach of contract claim, the trial court
found that the attachments contradicted some of the allegations
in the complaint, did not establish that any contract was entered,
and did not reflect the terms of any contract. With respect to the
promissory estoppel claim, the trial court found the complaint did
not allege State Bank made a clear promise to perform or that
Akgus reasonably relied on any promise. And as to the fraud and
negligent misrepresentation claims, the trial court found the
complaint did not adequately allege a material misrepresentation
or scienter. The trial court sustained the demurrer without leave
4 State Bank demurred to the implied contract claim based
in part on the statute of frauds, which requires that contracts to
extend credit in an amount greater than $100,000 must be in
writing. (Civ. Code, § 1624, subd. (a)(7).)
12
to amend and entered judgment in favor of State Bank.5 Akgus
timely appealed.
DISCUSSION
I. Standard of Review
“ ‘On review from an order sustaining a demurrer, “we
examine the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory,
such facts being assumed true for this purpose.” ’ ” (Tucker v.
Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 210
(Tucker).) “The court does not, however, assume the truth of
contentions, deductions or conclusions of law.” (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 967.) “Exhibits attached to
the complaint take precedence to the extent they contradict
allegations in the complaint.” (Bank of New York Mellon v.
Citibank, N.A. (2017) 8 Cal.App.5th 935, 943 (Bank of New
York).)
“If a demurrer is sustained, we exercise our independent
judgment on whether a cause of action has been stated as a
matter of law, regardless of reasons stated by the trial court.
[Citation.] We affirm if the trial court’s decision was correct on
any theory. [Citation.]” (Tucker, supra, 208 Cal.App.4th at
pp. 210–211.)
5 State Bank also moved to strike the punitive damages
claim in the complaint and the trial court denied the motion as
moot in light of its decision to sustain the demurrer. On appeal,
Akgus argues State Bank’s motion to strike was groundless and
should have been denied. Because we affirm, we similarly
conclude the motion to strike is moot.
13
II. The Complaint Does Not Allege Facts Demonstrating
That the Parties Formed a Written Contract
Akgus argues the trial court erroneously concluded that the
complaint and attached documents did not allege the existence
and breach of a written contract. We disagree.
A. Legal principles
“A cause of action for damages for breach of contract is
comprised of the following elements: (1) the contract,
(2) plaintiff’s performance or excuse for nonperformance,
(3) defendant’s breach, and (4) the resulting damages to plaintiff.”
(Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1388.)
“The terms of an express contract are stated in words.”
(Retired Employees Assn. of Orange County, Inc. v. County of
Orange (2011) 52 Cal.4th 1171, 1178, citing Civ. Code, § 1620.) A
contract may be “ ‘pleaded either by its terms—set out verbatim
in the complaint or a copy of the contract attached to the
complaint and incorporated therein by reference—or by its legal
effect.’ [Citation.]” (Heritage Pacific Financial, LLC v. Monroy
(2013) 215 Cal.App.4th 972, 993.) A written contract may be
reflected in a series of related documents, such as back-and-forth
e-mails. (J.B.B. Investment Partners Ltd. v. Fair (2019) 37
Cal.App.5th 1, 11.)
“ ‘Under California law, a contract will be enforced if it is
sufficiently definite (and this is a question of law) for the court to
ascertain the parties’ obligations and to determine whether those
obligations have been performed or breached.’ [Citation.]”
(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209
(Bustamante).) “ ‘Where a contract is so uncertain and indefinite
that the intention of the parties in material particulars cannot be
14
ascertained, the contract is void and unenforceable.’ [Citations.]”
(Ibid.) “ ‘[T]erms proposed in an offer must be met exactly,
precisely and unequivocally for its acceptance to result in the
formation of a binding contract; and a qualified acceptance
amounts to a new proposal or counteroffer . . . .’ ” (Panagotacos v.
Bank of America (1998) 60 Cal.App.4th 851, 855–856
(Panagotacos).)
“Preliminary negotiations or an agreement for future
negotiations are not the functional equivalent of a valid,
subsisting agreement.” (Kruse v. Bank of America (1988) 202
Cal.App.3d 38, 59.) Likewise, “ ‘[t]he law does not provide a
remedy for breach of an agreement to agree in the future.’ ”
(Alaimo v. Tsunoda (1963) 215 Cal.App.2d 94, 99.) “ ‘[I]f an
essential element is reserved for the future agreement of both
parties, the promise can give rise to no legal obligation until such
future agreement.’ ” (Ablett v. Clauson (1954) 43 Cal.2d 280,
284–285,quoting 1 Williston, Contracts, (rev. ed. 1936) 131, § 45.)
B. The alleged written contract is uncertain and
indefinite
The complaint alleges State Bank breached an express
written contract under which it “unconditionally committed” to
“receive the [Letter of Credit], add its confirmation to the [Letter
of Credit], and transfer the [Letter of Credit]” to CMA’s bank.
Akgus alleges Attachments A through G to the complaint reflect
the written contract. However, the writings exchanged between
the parties demonstrate that State Bank did not agree to the
specific terms proposed by Akgus—and in particular, it did not
agree to confirm the Letter of Credit.
Specifically, the complaint alleges that on “June 1, 8, 22,
and 28, 2017, [State Bank] committed to proceed and process the
15
[Letter of Credit],” and that on “May 30, 31, June 1, 8, 22, 26 and
June 28, 2017,” State Bank “agreed to enter into this transaction
and committed to proceed with performing all obligations under
the [Letter of Credit] transaction.” The allegations are
contradicted for each specified date.
Neither the complaint nor the attached exhibits refer to or
reflect any communications from State Bank to Akgus on May 30
or May 31. State Bank’s communication on June 1 was in
response to proposed letter of credit language Akgus intended to
request from White Rays. State Bank responded only: “Other
details seem Ok however in field 57D you do not need to mention
your Bank account number.”
On June 8, Akgus sent Ram a draft letter of credit with
Wells Fargo as the confirming bank, and Ram sent White Rays a
draft letter of credit which is not attached to the exhibit. The
complaint’s attachments neither reflect any written
correspondence from State Bank to Akgus on that day, nor reflect
that State Bank received the communications Akgus sent to
Ram, or that Ram sent to White Rays.
Ram’s June 9 e-mail addressed to White Rays referenced a
June 8 conversation with State Bank in which it said it could
confirm the Letter of Credit if the Brazilian refinery agreed.
Ram’s report of the conversation did not reflect State Bank’s
contractual commitment or promise; in fact, Ram appeared to
denigrate State Bank’s participation to the bank’s “chief,” citing
the bank’s poor global rating. Further, Ram explicitly indicated
State Bank’s role as the confirming bank was contingent on the
approval of the supplier, which Akgus did not yet have and never
received because the first supplier refused to agree to State
Bank’s participation.
16
On June 22, Akgus asked State Bank to confirm that it
could transfer the Letter of Credit “and can work with Chase
when the documents are submitted as per the requirements of
the [Letter of Credit].” State Bank responded it was “ok with the
arrangement and can transfer the [Letter of Credit] to your
suppliers Bank i.e. Chase Bank.” State Bank was silent on
confirming the Letter of Credit.
Akgus’s next e-mail to State Bank on June 26 suggested
the parties’ negotiations were still ongoing, as it indicated the
supplier was “considering getting the [Letter of Credit]
transferred within State Bank,” and asking for further
explanation of details. State Bank responded with details about
the logistics of a transfer. It did not commit to confirming the
letter of credit.
Finally, on June 28, the negotiations culminated in
Attachment G, Akgus’s e-mail to State Bank. The complaint
alleges this e-mail shows State Bank had “contractual
commitments” to approve, transfer, and confirm the Letter of
Credit. But this document also contradicts the complaint’s
allegations. (Bank of New York, supra, 8 Cal.App.5th at p. 943.)
In Attachment G, Akgus asked State Bank to “confirm” five
specific terms and approve one new guarantee. Akgus sought
State Bank’s written agreement that: “[T]his [Letter of Credit]
will be confirmed by State Bank of India, Los Angeles;” and
“[s]ince State Bank of India, Los Angeles is confirming the
[Letter of Credit], STATE BANK Guarantees payment against
the [Letter of Credit] to CMA (Supplier) and Arif Khan Global
both after the documents are submitted as per the [Letter of
Credit] and Uniform Customs.”
17
State Bank did not agree. Instead, it responded to Akgus’s
specific terms with generalities and ignored the proposed
guarantee altogether. State Bank described the transfer logistics
and indicated only: “If the documents submitted are as per
[Letter of Credit] then you should be sure of getting the
payment.”6 This did not reflect an unconditional agreement to
guarantee payment or to separately confirm the Letter of Credit.
A party must accept “precisely and unequivocally for its
acceptance to result in the formation of a binding contract.”
(Panagotacos, supra, 60 Cal.App.4th at pp. 855–856; Civ. Code,
§ 1585 [“acceptance must be absolute and unqualified”].) State
Bank did not do so here. Instead, Attachment G shows that
Akgus asked State Bank to accept five specific terms, including a
promise to confirm the Letter of Credit, and commit to a new
“guarantee of payment” to CMA and Akgus. Akgus’s request that
State Bank “confirm” these terms only supports that they were
unsettled—if State Bank had agreed to them previously, this
confirmation would be unnecessary. State Bank countered with a
vague commitment as to some of the terms, ignored the express
guarantee language (a term Akgus had indicated was essential
because the supplier was concerned about getting paid), and did
not agree to confirm the Letter of Credit. The exchange
establishes State Bank and Akgus did not “reach a meeting of the
minds on all material points.” (Banner Entertainment, Inc. v.
6 State Bank stated it would “certify” certain documents
relating to the Letter of Credit. In the context of item 4 in
Akgus’s e-mail, these are documents that would eventually be
submitted by sugar supplier CMA. They are separate from the
Letter of Credit itself, which was to be prepared by India
Overseas. State Bank’s agreement to “certify” those documents is
not a promise to confirm the Letter of Credit.
18
Superior Court (1998) 62 Cal.App.4th 348, 359.) This failure
“prevents the formation of a contract even though the parties
have orally agreed upon some of the terms, or have taken some
action related to the contract.” (Ibid., italics omitted.)
Likewise, “equivocal and nonconfirmatory responses do not
‘show[ ]’ ” that parties “ ‘made a contract’ or set forth the
‘essential contract terms with reasonable certainty.’ [Citation.]”
(Smyth v. Berman (2019) 31 Cal.App.5th 183, 197.) Akgus
alleges State Bank’s agreement to confirm the letter of credit was
an essential term of their contract, and that the attachments to
the complaint reflect the parties’ written agreement. Yet, the
written exchanges demonstrate State Bank responded only
equivocally, or not at all, regarding confirmation of the Letter of
Credit.
Those same exchanges further reflect only conditional
agreement to other proposed terms, as well as the uncertainty of
State Bank’s participation in the transaction. Although this was
a time-sensitive transaction, the parties’ written exchanges did
not set forth any provisions regarding the timing of State Bank’s
performance, or reflect that it even responded to Akgus’s request
for a commitment to immediate or fast payment. While the
complaint alleged State Bank stood to profit from the transaction,
the parties’ written exchanges included no term regarding State
Bank’s fees or other compensation. State Bank’s participation
was also conditioned upon the seller accepting its role, yet as late
as June 26, Akgus represented the seller was only “considering”
having the Letter of Credit transferred within State Bank. The
complaint fails to show State Bank and Akgus entered into
“sufficiently definite” promises to form an enforceable contract.
(Bustamante, supra, 141 Cal.App.4th at p. 209.)
19
III. The Complaint Does Not State a Claim for
Promissory Estoppel
Akgus also argues the trial court erred in sustaining the
demurrer as to its claim for promissory estoppel. We find no
error.
A. Legal principles
“ ‘The elements of a promissory estoppel claim are “(1) a
promise clear and unambiguous in its terms; (2) reliance by the
party to whom the promise is made; (3) [the] reliance must be
both reasonable and foreseeable; and (4) the party asserting the
estoppel must be injured by his reliance.” [Citation].’
[Citations.]” (Advanced Choices, Inc. v. State Dept. of Health
Services (2010) 182 Cal.App.4th 1661, 1672.)
B. The complaint does not allege Akgus reasonably
relied on State Bank’s representations
The complaint alleges State Bank promised it would
receive, confirm, and transfer the Letter of Credit; verify certain
documents “to be supplied by the seller after shipment;” and
“rapidly” pay CMA and Akgus. For purposes of its promissory
estoppel claim Akgus may rely on oral representations. (Frebank
Co. v. White (1957) 152 Cal.App.2d 522, 523.) Thus, while the
purported written contract fails to show unconditional and
definite promises, the complaint alleges State Bank told Akgus
on a conference call that it would “confirm and transfer” the
Letter of Credit; that State Bank told Akgus it would “rapidly
pay[ ]” CMA and Akgus; and that State Bank promised to
“certify” certain documents that would be provided by CMA.
However, even accepting these allegations as true and
concluding they were sufficiently clear promises for purposes of a
promissory estoppel claim, the complaint fails to adequately
20
allege that Akgus reasonably relied on these promises. The
complaint merely recites this element of promissory estoppel. It
does not identify any factual allegations suggesting Akgus’s
reliance was reasonable. Rather, the complaint establishes
Akgus’s reliance was not reasonable because State Bank’s
written representations contradicted several aspects of the
alleged oral promises.
Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12 (Murphy)
is instructive. In Murphy, the plaintiff was permanently
suspended from Twitter after posting messages that violated the
company’s conduct rules. (Id. at p. 17.) The plaintiff claimed this
violated a clear and unambiguous promise to not censor accounts,
as reflected in Twitter’s user agreement, on its website, and in its
public statements. (Id. at p. 22.) The court concluded plaintiff’s
reliance on these promises was not reasonable because the
promises were contradicted by other terms prohibiting certain
conduct and reserving the right to suspend or terminate accounts
for any reason. (Id. at pp. 38–39.)
Similarly, the promises on which Akgus alleged it relied are
contradicted by State Bank’s written correspondence. The
attachments to the complaint show State Bank indicated it could
transfer the Letter of Credit or certify documents, but it never
agreed in writing to confirm the Letter of Credit despite Akgus’s
request. In describing what it was willing to do, State Bank
stated it would “transfer” the Letter of Credit, and would take
actions “per the [Letter of Credit],” but repeatedly failed to state
it would add its confirmation to the Letter of Credit. State Bank
was also silent in response to Akgus’s written request for
“immediate[ ]” payment. State Bank’s failure to provide written
confirmation of purported oral promises, even when Akgus
21
specifically sought such written verification, fatally undermines
any allegation that Akgus’s reliance was reasonable. (Murphy,
supra, 60 Cal.App.5th at p. 39 [whether reliance was justified
may be decided as a matter of law if reasonable minds can come
to only one conclusion based on the facts].)
IV. Akgus Has Not Alleged Facts Sufficient to State
Claims for Fraud or Negligent Misrepresentation
Finally, Akgus argues the trial court erred in sustaining
State Bank’s demurrer as to the claims for fraud and negligent
misrepresentation. We find no error.
A. Legal principles
The elements of fraud are “ ‘ “(a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of
falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.” ’ [Citations.]”
(Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184 (Charnay).)
“The elements of negligent misrepresentation are similar to
intentional fraud except for the requirement of scienter; in a
claim for negligent misrepresentation, the plaintiff need not
allege the defendant made an intentionally false statement, but
simply one as to which he or she lacked any reasonable ground
for believing the statement to be true.” (Charnay, supra, 145
Cal.App.4th at p. 184.) “To be actionable, a negligent
misrepresentation must ordinarily be as to past or existing
material facts. ‘[P]redictions as to future events, or statements
as to future action by some third party, are deemed opinions, and
not actionable fraud.’ [Citations].” (Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158 (Tarmann).)
“Fraud and negligent misrepresentation must be pleaded
with particularity and by facts that ‘ “ ‘show how, when, where, to
22
whom, and by what means the representations were tendered.’ ” ’
[Citation.]” (Charnay, supra, 145 Cal.App.4th at p. 185, fn. 14.)
B. Forward-looking statements are not actionable as
fraud or negligent misrepresentation
The claims for fraud and negligent misrepresentation are
based on State Bank’s alleged representations that it would
receive, confirm, and transfer the Letter of Credit. Specifically,
Akgus alleges that on May 30, 2017, State Bank said in a
conference call that it “would definitely” transfer the Letter of
Credit, and that State Bank made a similar statement during a
May 31 phone call with Akgus. On June 1, State Bank told
Akgus by phone and by e-mail that it approved of and “would
transfer” the Letter of Credit. State Bank told Akgus by phone
on June 8 that it “will definitely” accept, process, and transfer the
Letter of Credit; “will confirm” the Letter of Credit; and would
transfer payment to CMA and Akgus. Finally, on July 5, State
Bank told Akgus that it would tell Akgus as soon as it received
the letter of Credit so that it could transfer the Letter of Credit
and related payments. Each of these representations is
fundamentally forward-looking and thus not actionable under
theories of standard fraud or negligent misrepresentation.
(Tarmann, supra, 2 Cal.App.4th at p. 158; Stockton Mortgage,
Inc. v. Tope (2014) 233 Cal.App.4th 437, 458 [representation of
future performance does not support claim for negligent
misrepresentation].)
C. The promissory fraud theory fails because the
complaint does not adequately allege State Bank
had no intention to perform
On appeal, Akgus argues the complaint’s allegations state a
claim for promissory fraud. “[I]n a promissory fraud action, to
23
sufficiently alleges [sic] defendant made a misrepresentation, the
complaint must allege (1) the defendant made a representation of
intent to perform some future action, i.e., the defendant made a
promise, and (2) the defendant did not really have that intent at
the time that the promise was made, i.e., the promise was false.”
(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) “Each
element must be alleged with particularity.” (Ibid.)
The complaint alleges State Bank sent Akgus a letter on
July 21, 2017, “admitt[ing]” that it “had no intention to go
forward” with the transaction. But the complaint does not
include any specific factual allegations about State Bank’s intent
when it made the alleged misrepresentations several weeks
earlier. Because “plaintiff has alleged no facts or circumstances
suggesting defendants’ intent not to perform the alleged promise
when it was made,” these “are the very sort of general and
conclusory allegations that are insufficient to state a fraud
claim.” (Reeder v. Specialized Loan Servicing LLC (2020) 52
Cal.App.5th 795, 804.)
D. The complaint does not allege State Bank’s
representations regarding the RMA were false
The complaint also alleges that on June 8, 2017, State
Bank fraudulently or negligently misrepresented that it had an
RMA with India Overseas. But the complaint does not allege this
representation was false, which is a required element under both
causes of action. (Charnay, supra, 145 Cal.App.4th at p. 184.)
The complaint therefore does not adequately plead fraud or
negligent misrepresentation as to State Bank’s representation
about the RMA.
24
E. The complaint does not adequately allege State
Bank made knowing or negligent
misrepresentations regarding its exposure limits
Finally, the complaint additionally alleges that on June 8,
2017, State Bank fraudulently or negligently misrepresented that
it had sufficient exposure limits with India Overseas. To state a
valid fraud claim, the complaint must allege State Bank knew
these statements to be false at the time they were made.
(Charnay, supra, 145 Cal.App.4th at p. 184.) As for the negligent
misrepresentation claim, the complaint must allege State Bank
“lacked any reasonable ground for believing the statement to be
true.” (Ibid.)
The complaint alleges State Bank told Akgus that it did not
have exposure limits with India Overseas on July 11, 2017. But
the complaint does not allege State Bank knew this to be false on
June 8, when it made the alleged misrepresentation. It also does
not allege facts suggesting State Bank did not have any
reasonable basis to believe the statement was true on June 8.7
The complaint does not adequately allege fraud or
negligent misrepresentation.
7 We note that even after the trial court sustained State
Bank’s demurrer to the fraud and negligent misrepresentation
causes of action in the second amended complaint in part on the
ground that Akgus failed to allege falsity or scienter, Akgus failed
to allege facts to support those elements in the third amended
complaint. Further, Akgus does not challenge the trial court’s
ruling denying leave to amend.
25
DISPOSITION
The judgment is affirmed. Respondent to recover its costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
LAVIN, J.
26