Opinion

Zakk v. Diesel

Court: California Court of Appeal
Filed: Mar 25, 2019
Status: Published
Cited by: 0 cases
Authority: More cited than 7.3%

The opinion

Filed 3/25/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GEORGE ZAKK, B284432

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC619933)

VIN DIESEL et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court for Los Angeles

County, John P. Doyle, Judge. Affirmed in part and reversed in part.

Hamrick & Evans, Martin J. Barab, Jonathan D. Dutton and

A. Raymond Hamrick, III, for Plaintiff and Appellant.

Freedman + Taitelman, Sean M. Hardy and Bryan J. Freedman

for Defendants and Respondents Vin Diesel and One Race Films, Inc.

Manatt, Phelps & Phillips, John M. Gatti, Katrina Dela Cruz and

Benjamin G. Shatz for Defendant and Respondent Revolution Studios.

This case involves a dispute over whether plaintiff and appellant

George Zakk is entitled to be paid and receive an executive producer

credit for a film that is a sequel to a film he had worked on and

developed. Zakk sued defendants Vin Diesel, One Race Films, Inc., and

Revolution Studios1 for breach of an oral contract, breach of an implied-

in-fact contract, intentional interference with contractual relations,

quantum meruit, promissory estoppel, and declaratory relief. His case

was dismissed after the trial court sustained defendants’ demurrers to

Zakk’s third amended complaint. The primary bases for the trial court’s

ruling were its findings that the third amended complaint was a sham

pleading and that the breach of oral contract claim (and its derivative

claims) were barred by the statute of frauds. In addition, the court

found that Zakk’s quantum meruit claim was barred by the statute of

limitations, and it dismissed his claim for promissory estoppel because

it was added without leave of court.

With regard to oral contracts that fall within the statute of frauds

category of contracts not to be performed within a year, we hold that the

promisee’s full performance of all of his or her obligations under the

contract takes the contract out of the statute of frauds, and no further

showing of estoppel is required. We distinguish cases involving other

categories of contracts within the statute of frauds, such as contracts to

make a will or contracts not to be performed within the promisor’s

lifetime, because those categories of contracts historically have been

1 We will refer to Vin Diesel and One Race Films, Inc. collectively as

Diesel/One Race, and to all defendants collectively as defendants.

treated differently than contracts not to be performed within a year.

Therefore, we conclude that to the extent those cases hold that

avoidance of the statute of frauds requires the promisee to satisfy the

elements of estoppel--showing extraordinary services by the promisee or

unjust enrichment by the promisor--they do not apply to the category of

contracts not to be performed within a year.

Here, Zakk’s allegation that he fully performed his obligations

under the alleged oral contract at issue is enough to avoid the statute of

frauds. Therefore, in finding that Zakk’s breach of contract and related

claims were barred by the statute of frauds absent alleged facts showing

defendants were estopped to assert the statute, the trial court erred.

We also conclude the trial court erred in finding the third amended

complaint was a sham pleading, and that the statute of limitations

barred his quantum meruit claim. However, we conclude the trial court

did not abuse its discretion in dismissing the promissory estoppel claim.

Accordingly, we affirm the judgment to the extent it dismisses Zakk’s

promissory estoppel claim and reverse the judgment as to his remaining

claims.

BACKGROUND

Because this appeal raises the question whether the third

amended complaint was a sham pleading, we must discuss each version

of the complaint, the demurrers, and the rulings on the demurrers in

some detail to give some context to our analysis of that issue. In

accordance with the standard of review, we treat the facts alleged in the

complaints as true for the purposes of this appeal. (Thaler v. Household

Finance Corp. (2000) 80 Cal.App.4th 1093, 1098.)

A. Original Complaint

1. Allegations

Zakk filed the original complaint in this case on May 10, 2016. It

asserted four causes of action--breach of contract, breach of implied-in-

fact contract, declaratory relief, and intentional interference with

contractual relations--based upon his assertion that he was entitled to

receive an executive producer credit and a $275,000 executive producing

fee for the sequel to a film entitled xXx. The complaint alleged as

follows.

Vin Diesel is an actor, producer, and director. Diesel founded One

Race, a production company, in or about 1995; it was incorporated in

March 2001. Zakk ran One Race from its inception, and was

responsible for developing projects and managing them to conclusion.

Zakk did not receive a salary, reimbursement for expenses, or any other

compensation for his daily work. Instead, he “had an oral and/or

implied-in-fact agreement with DIESEL and ONE RACE FILMS which

provided that for each motion picture in which (a) DIESEL would star

in and act in the capacity as producer in and (b) ZAKK helped develop

and/or worked on while running the operations of ONE RACE FILMS,

including sequels based thereon, ZAKK would, unless otherwise agreed,

receive the following: [¶] (a) A fee that ranged from $250,000 to

$275,000; and [¶] (b) An Executive Producer or Producer credit on

screen and in promotional materials on a Most Favored Nation (MFN)

basis with other Executive Producers or Producers (depending on

whether ZAKK received an Executive Producer or Producer credit on

the motion picture).”

The complaint alleged “there is a considerable amount of

precedent which evidences ZAKK’s oral and/or implied-in-fact

agreement with DIESEL and ONE RACE FILMS,” and listed six

original films and one sequel for which he was paid and given executive

producer or co-producer credit. The first film, Strays, was produced in

1997; the last original film listed, Find Me Guilty, was produced in

2006. The one sequel listed, Riddick (which was a sequel to the 2004

original film, The Chronicles of Riddick) was produced in 2013; Zakk

received an executive producer fee and credit for the sequel even though

his relationship with Diesel and One Race had terminated in 2007.

With regard to the film xXx, which was produced in 2002, the

complaint alleged: “ZAK worked on and helped develop xXx.

Accordingly, with respect to xXx and any sequel of xXx which would be

starring and produced by DIESEL, Defendants DIESEL, ONE RACE

FILMS, and/or REVOLUTION STUDIOS (the production company)

agreed to provide ZAKK with an Executive Producer credit and

$275,000 executive producing fee in exchange for his services.” The

complaint further alleged that defendants were currently in production

of a sequel to xXx, entitled xXx: The Return of Xander Cage, starring

Diesel, which was directly based upon the original film and was set to

be released on January 20, 2017.

In the first cause of action for breach of oral contract, the

complaint alleged that “[i]n exchange for ZAKK’s work on the original

xXx, ZAKK, on the one hand, and DIESEL, ONE RACE FILMS, and/or

REVOLUTION STUDIOS, on the other entered into an oral agreement

which provided that ZAKK would receive the following as respects the

xXx Sequel: [¶] (a) An Executive Producer fee of $275,000; and [¶] (b)

An Executive Producer credit on screen and in promotional materials on

a Most Favored Nation basis with other Executive Producers (e.g., same

size print and card).” It alleged that Zakk had “performed all material

conditions, covenants, obligations and promises required on [his] part to

be performed in accordance with the oral agreement except for those

conditions, covenants, obligations and promises that have been waived,

excused, rendered impossible and/or prevented by Defendants,” and

that Diesel, One Race, and/or Revolution breached the agreement by

refusing to pay Zakk his fee or provide him with an executive producer

credit.

The second cause of action, for breach of implied-in-fact contract

(which was alleged only against Diesel and One Race), alleged that by

reason of the practices and conduct as described in the complaint there

existed an implied-in-fact agreement between Zakk and Diesel/One

Race pursuant to which Zakk was entitled to an executive producer fee

of $275,000 and an executive producer credit for the xXx sequel. This

cause of action included the same performance and breach allegations

as alleged in the breach of oral contract cause of action.

The third cause of action, for declaratory relief, alleged there was

an actual dispute between Zakk and defendants concerning their rights

and duties with respect to the xXx sequel. It sought a declaration that

Zakk is entitled to an executive producer fee of $275,000 and executive

producer credit for the xXx sequel.

The fourth cause of action, for intentional interference with

contractual relations (only against Revolution), alleged that, to the

extent Revolution is not found to have entered into the oral contract

with respect to the xXx sequel, it knew of the oral and/or implied-in-fact

contract between Zakk and Diesel/One Race. The complaint alleged

that Revolution’s conduct prevented, or made more expensive or

difficult, Diesel/One Race’s performance of the contract, that Revolution

intended to disrupt the performance of the contract or knew that

disruption was certain or substantially certain to occur, and that

Revolution’s conduct was a substantial factor in causing Zakk damage.

2. Demurrer

Diesel/One Race filed a demurrer to the complaint. They argued

that all causes of action were barred by the two-year statute of

limitations found in Code of Civil Procedure section 339(1), and that the

complaint failed to allege facts sufficient to state any cause of action.

With regard to the statute of limitations, Diesel/One Race noted

that in all of his causes of action, Zakk was seeking to recover

compensation for his personal services. They observed that Zakk’s

services related to the original xXx film “were completely performed by

2002” and that he alleged that he stopped providing services to One

Race in 2007. Thus, they argued that because the statute of limitations

for oral or implied-in-fact contracts for personal services begins to run

when those services end, Zakk’s claims expired in 2004 (if based upon

the completion of services related to the original xXx film) or 2009 (if

based upon the completion of all services to One Race).

Diesel/One Race also argued that Zakk failed to alleged facts

sufficient to state a breach of oral contract claim because (1) the alleged

contract was fatally uncertain and (2) the alleged contract was barred

by the statute of frauds. With regard to the first ground, Diesel/One

Race asserted that the alleged contract was uncertain because “[i]t is

uncertain who the parties are. It is uncertain what the respective

obligations of the parties are. It is even uncertain whether [Zakk] has

alleged one contract or several and under which contract(s) his claims

arise.” With regard to the statute of frauds, Diesel/One Race argued

that the alleged oral agreement by its terms was not to be performed

within a year from its making and therefore was barred under Civil

Code section 1624, subdivision (a)(1).

Finally, Diesel/One Race contended that (1) Zakk’s breach of

implied-in-fact contract cause of action failed to state a claim because

an action based on an implied-in-fact contract cannot lie where there

exists an express contract covering the same subject, and Zakk alleged

both a valid express contract and an implied-in-fact contract; and

(2) Zakk’s cause of action for declaratory relief failed because it did not

allege an justiciable controversy, but instead alleged an accrued cause

of action for an actual breach.

3. Ruling

The trial court sustained in part the demurrer, and granted leave

to amend.

The court rejected Diesel/One Race’s statute of limitations

argument. It observed that the statute begins to run on a breach of

contract cause of action when the contract is repudiated, and the

complaint did not allege when that repudiation took place.

The court agreed in part with Diesel/One Race’s uncertainty

argument. It found the complaint was unclear about whether the

alleged agreement provided that Zakk was to be paid and credited for

sequels even if he did not develop or work on the sequel. It noted if that

were the case, Diesel/One Race’s assertion of the statute of frauds would

be proper. Therefore, it sustained the demurrer to the breach of oral

contract cause of action on the ground of uncertainty.

The court also agreed with Diesel/One Race’s argument that Zakk

could not assert breach of both an implied-in-fact contract and an

express contract covering the same subject matter, and sustained the

demurrer to the breach of implied-in-fact contract claim on that ground.

In doing so, however, it acknowledged that Zakk could assert both

claims in the alternative.

Finally, the court sustained the demurrer to Zakk’s declaratory

relief claim because it only concerned an accrued claim and did not seek

prospective relief by way of a declaration of rights.

B. First Amended Complaint

1. Allegations

Zakk filed a first amended complaint with the following changes

and additions.

First, where Zakk had alleged an “oral and/or implied-in-fact

agreement” in the original complaint, the first amended complaint

alleged an “oral or implied-in-fact agreement.” The first amended

complaint also did not incorporate by reference in his breach of implied-

in-fact cause of action the allegations of his breach of oral contract cause

of action (those allegation had been incorporated in the original

complaint).

Second, Zakk added allegations regarding the alleged contract in

an attempt to clear up any uncertainty. He alleged that under the

contract he “was to be paid and credited for all sequels to motion

pictures that (a) DIESEL would star in and (b) ZAKK helped develop

and/or worked on the original picture upon which the sequel is based,

regardless of whether ZAKK helped develop or work on such sequels.”

Zakk also alleged that “[b]y virtue of the services that ZAKK

provided in connection with xXx (i.e., working on the picture and

helping to develop it), ZAKK fully performed all of his obligations under

the oral or implied-in-fact agreement that ZAKK had with DIESEL and

ONE RACE FILMS, thereby entitling ZAKK to an Executive Producer

credit and $275,000 executive producing fee with respect to any sequel

of xXx which DIESEL would star in, regardless of whether ZAKK

helped develop or work on such sequels.” In addition, Zakk specifically

alleged an oral contract with Revolution with regard to xXx and any

sequel starring Diesel, and that he fully performed all of his obligations

under that oral agreement.2

Zakk also included some additional language to his allegation

regarding the payment and producing credit he received for the sequel

to The Chronicles of Riddick. Thus, he alleged: “For example, in 2013,

in exchange for the services that ZAKK provided (work and

development) in connection with The Chronicles of Riddick (released in

2004), ZAKK received an Executive Producer fee and credit for the

sequel to The Chronicles of Riddick--i.e., the motion picture entitled,

Riddick (released in 2013).” (Additional language underlined.)

In addition, Zakk made a slight addition to his allegation of

performance in his breach of oral contract and breach of implied-in-fact

contract causes of action, presumably to address the trial court’s

comments regarding the statute of frauds. He added the word “fully” to

both allegations, so the allegations stated that he “has fully performed”

all his obligations except for those “that have been waived, excused,

rendered impossible and/or prevented by Defendants.”

Finally, Zakk amended his declaratory relief cause of action to

allege that a controversy had arisen concerning the rights and duties

2 Those allegations stated: “17. In exchange for the services that ZAKK

provided in connection with xXx as alleged herein, REVOLUTION STUDIOS

(the production company for xXx) also orally agreed to provide ZAKK with an

Executive Producer credit and $275,000 executive producing fee with respect

to any sequel of xXx which DIESEL would star in, regardless of whether

ZAKK helped develop or work on such sequels. [¶] 18. By virtue of the

services that ZAKK provided in connection with xXx as alleged herein, ZAKK

fully performed all of his obligations under his oral agreement with

REVOLUTION STUDIOS.”

with respect to “sequels to motion pictures that (a) DIESEL will star in

and (b) ZAKK helped develop and/or worked on the original picture

upon which the sequel is based.” He alleged that he contends and seeks

a declaration that for each such sequel he is entitled to a fee equal to

the fee he received in connection with the film upon which the sequel is

based, as well as an executive producer or producer credit (depending

upon whether he received an executive producer or producer credit on

the original film).3

2. Demurrers

Diesel/One Race and Revolution each filed a demurrer to the first

amended complaint.

In their demurrer, Diesel/One Race asserted that the statute of

frauds barred Zakk’s breach of oral contract claim because it could not

be performed within one year and Zakk did not plead any facts to

support an exception to the statute or estoppel to assert the statute.

They also argued that that claim failed on the merits because there was

no breach, since the xXx sequel had not yet been completed and

released. They contended that the cause of action for breach of implied-

in-fact contract failed for the same reasons the breach of oral contract

failed, and because no such claim can lie where there is a valid express

contract. Finally, they argued the declaratory relief claim failed

3 We note that Zakk did not make any change to the prayer for relief as

to the declaratory relief cause of action, so that the prayer still sought a

declaration only as to the xXx sequel.

because (a) it sought declaratory relief that was duplicative of the

breach of oral contract claim; (b) it sought declaratory relief concerning

Revolution, which was a party to only one alleged oral contract with

Zakk, i.e., with regard to xXx and its sequel; and (c) there was no actual

controversy concerning sequels that are wholly speculative.

In its demurrer, Revolution also argued that the statute of frauds

barred Zakk’s breach of oral contract claim, and that the declaratory

relief claim failed because there was no existing actual controversy

regarding speculative sequels. It also contended that the breach of oral

contract claim failed because the first amended complaint did not

include any specific allegations regarding the existence of the contract

and thus was uncertain, nor did it include facts regarding the formation

of the contract or consideration for the contract. Finally, it challenged

the intentional interference with contractual relations claim (which was

alleged only against Revolution) on two grounds: (1) the first amended

complaint did not plead sufficient facts to show the existence of a valid

contract and intentional wrongful acts to interfere with any contract;

and (2) the claim was factually inconsistent with Zakk’s allegations that

Revolution entered into an oral agreement with him.

3. Ruling

The trial court sustained both demurrers with leave to amend.

The court found that the alleged agreement--which the court identified

as an agreement “for Plaintiff to be paid and credited for sequels merely

because Plaintiff had developed or worked on the original films even if

Plaintiff did not develop or work on the sequels”--was subject to the

statute of frauds because it was not to be performed within a year, since

there was no definitive time for the agreement to terminate. (Citing

Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 328 (Tostevin).) The

court rejected Zakk’s argument that his allegation that he fully

performed his obligations under the agreement was sufficient to defeat

the statute of frauds bar; the court found that Zakk must also allege

facts sufficient to establish an estoppel to assert the statute.

Although the court concluded that its finding regarding the

statute of frauds applied to all causes of action alleged in the complaint

because all of them were derivative of the contract claims, it also

addressed defendants’ other arguments. It rejected Diesel/One Race’s

and Revolution’s arguments regarding the purported insufficiency of the

allegations to support the breach of oral contract, breach of implied-in-

fact, and declaratory relief causes of action. The court agreed, however,

with Revolution’s argument regarding the inadequacies of the

allegations of intentional interference with contractual relations, and

sustained Revolution’s demurrer to that cause of action on this ground

(as well as on the statute of frauds ground).

C. Second Amended Complaint

1. Allegations

Zakk filed the second amended complaint on December 7, 2016.

The only differences between the first amended complaint and the

second amended complaint were found in three paragraphs: one in the

background and general allegations section and two in the fourth cause

of action for interference with contractual relations.

In the background and general allegations section, Zakk updated

one paragraph to state that defendants “have recently produced a

sequel to the original xXx, which was produced in 2002,”4 and added

factual allegations to establish estoppel to assert the statute of frauds.

Among the facts alleged were that Zakk “fully performed all of his

obligations under the alleged agreement,” that his “performance as

respects xXx was directly induced” by defendants’ promise to provide

him a producer fee and credit for any sequel starring Diesel, and that

he “agreed to accept substantially less than what his services were

worth in connection with his creating and developing the xXx film

franchise based specifically” on defendants’ promise with regard to any

sequel starring Diesel.

In the intentional interference cause of action, Zakk added an

allegation naming an individual at Revolution who knew about the oral

agreement and its terms, and added additional language to another

paragraph about Revolution’s conduct that prevented Diesel/One Race’s

performance of the oral agreement.

2. Demurrers

Once again, Diesel/One Race and Revolution each filed a demurrer

to the second amended complaint.

In their demurrer, Diesel/One Race argued that the alleged

contracts were barred by the statute of frauds, and that Zakk failed to

4 The first amended complaint had alleged that defendants “are now in

production of a sequel to xXx.”

plead facts to support any exception to the statute of frauds. They

contended that estoppel did not apply under the circumstances of this

case because the rendition of personal services compensable in quantum

meruit is an insufficient basis for estoppel, and because Zakk cannot

claim that his personal services in connection with the original xXx film

clearly related to the alleged contract regarding a speculative sequel.

Finally, Diesel/One Race challenged the declaratory relief claim on the

same grounds as previously asserted.

Revolution argued in its demurrer that the breach of oral contract

claim was barred by the statute of frauds because Zakk did not allege

facts sufficient to show that he would suffer an unconscionable injury,

or that defendants would be unjustly enriched if the statute of frauds

were applied. Revolution also argued that the declaratory relief claim

failed because the underlying contract was barred by the statute of

frauds, and that the intentional interference claim failed because Zakk

did not allege facts sufficient to establish a valid contract or intentional

wrongful acts by Revolution.

3. Ruling

Once again, the trial court sustained the demurrers with leave to

amend. It found that Zakk’s allegations that he was not fully

compensated for his work on the original xXx film were insufficient to

allege estoppel to assert the statute of frauds because he failed to allege

facts showing that he provided services of an extraordinary or

exceptional character. The court explained, “[s]tated differently,

Plaintiff fails to allege facts why estoppel should be applied to permit

enforcement of the alleged contract instead of Plaintiff being required to

pursue a quantum meruit claim.” Based upon this finding, the court

sustained the demurrers to all causes of action, but granted Zakk leave

to amend, including leave to add an alternative quantum meruit claim.

Although the court found that all causes of action were barred by the

statute of frauds, it also specifically addressed, and rejected,

Revolution’s argument that Zakk failed to allege sufficient facts to state

a claim for intentional interference with contractual relations.

D. Third Amended Complaint

1. Allegations

Sometime after Zakk filed his second amended complaint in

December 2016, he received documents he had requested in requests for

production that he had propounded at the inception of the lawsuit

(which was filed in May 2016). One of those documents was a letter

that Zakk contended constituted a written agreement or memorandum

evidencing the terms of the alleged oral contract at issue, although one

of those terms was somewhat different than the term he previously had

alleged. He filed a third amended complaint that included several

significant, and some less significant, changes from the previous

complaints; many of those changes appear to be the result of Zakk’s

receipt of this discovery. The changes are as follows.

First, the third amended complaint added an introductory

paragraph setting forth the nature of the action. It stated that the

action arises out of defendants’ “wrongful and unjustified refusal to

credit and compensate . . . ZAKK, as agreed,” for his services provided

to them “in connection with the xXx film franchise--a film franchise

which ZAKK was instrumental in creating, developing, and bringing to

fruition.”

Second, the description of the nature of Zakk’s relationship with

One Race was slightly modified in the third amended complaint.

Whereas the previous complaints alleged that Zakk ran and/or

managed One Race, the third amended complaint alleged that he

“worked for” One Race.

Third, the third amended complaint alleged that Zakk and

Diesel/One Race entered into several different oral or implied-in-fact

agreements--i.e., a different agreement for each film that Diesel starred

in and Zakk worked on and/or helped develop. The complaint alleged

that those agreements “generally provided” that for each film, Zakk

would receive “[a] fee that ranged from approximately $200,000 to

$275,000,” and an executive producer or producer credit. With regard

to the xXx film, the complaint alleged that Diesel/One Race and

Revolution agreed that, in exchange for Zakk’s services on the original

xXx film, Zakk would receive compensation of at least $200,000 and no

less than 125 percent of his then current quote, and executive producer

credit on the xXx sequel starring Diesel.

Fourth, the third amended complaint alleged that the agreement

with respect to xXx was memorialized in a writing signed by Diesel’s

agent and Revolution’s agent. The complaint also included alleged

language from that letter.

Fifth, the third amended complaint included additional

allegations to support Zakk’s position that the alleged agreement was

not barred under the statute of frauds. Those allegations included

allegations (1) that Zakk “was instrumental in creating, developing, and

bringing the xXx film franchise to fruition,” and that the services he

performed in connection with that franchise “were extraordinary and of

an exceptional character in that, among other things, no one else could

have performed [them]”; and (2) that the alleged oral or implied-in-fact

agreement was an at-will agreement that could have been terminated

at any time before Zakk fully performed his services in connection with

the original xXx film.

Finally, the third amended complaint added two causes of action,

one for quantum meruit and one for promissory estoppel. The quantum

meruit cause of action alleged that defendants requested that Zakk

perform services for their benefit in connection with the xXx film

franchise and promised to pay Zakk the reasonable value of those

services (which is alleged to be no less than $2 million), and that Zakk

performed those services. The complaint alleged that within the past

two years Zakk requested that defendants pay him the reasonable value

of the services that he performed in connection with the xXx sequel, but

they refused to do so. The promissory estoppel cause of action alleged

that defendants promised Zakk that in exchange for the services he

provided in connection with the original xXx film, Zakk would receive in

connection with the xXx sequel the compensation and credit alleged,

that defendants have not performed any part of their promise, and as a

result of Zakk’s reasonable reliance upon defendants’ promises he has

suffered substantial monetary damages.

2. Demurrers

Diesel/One Race and Revolution each filed a demurrer to the third

amended complaint, as well as a motion to strike the promissory

estoppel cause of action and a request for judicial notice of (among other

things) the document the complaint alleged memorialized the purported

oral agreement.5

In their demurrer, Diesel/One Race argued that the third

amended complaint was a sham pleading because (1) it alleged several

different oral or implied-in-fact agreements rather than a single

agreement; and (2) it contradicted the previously-alleged facts that

Zakk generally was to be paid a fee ranging from $250,000 to $275,000,

and that he was to be paid $275,000 for the xXx sequel, by now alleging

that he generally was to be paid a fee ranging from $200,000 to

$275,000, and was to be paid at least $200,000 and no less than 125

percent of his then current quote for the xXx sequel.

Diesel/One Race also argued that Zakk’s amendments failed to

cure the previously-identified defects with regard to application of the

statute of frauds, and that the writing identified in the third amended

complaint was insufficient to take the alleged oral agreement out of the

statute of frauds. With regard to the writing, Diesel/One Race asserted

that it not only directly contradicted the terms of the agreement alleged

in the earlier complaints, but that Zakk misrepresented the actual

5 The document at issue, which was produced under a protective order,

was filed under seal.

language of the letter (of which Diesel/One Race asked the court to take

judicial notice).

Finally, Diesel/One Race challenged the newly-added causes of

action for quantum meruit and promissory estoppel. They contended

that the quantum meruit cause of action was barred by the two-year

statute of limitations. They argued that the statute begins to run on a

quantum meruit claim alleging a promise to pay for personal services

when those services are terminated. Thus, because Zakk’s services on

the original xXx film terminated in 2002, the statute of limitations

expired in 2004. With regard to the promissory estoppel cause of action,

Diesel/One Race’s challenge was two-fold. They contended it was

improperly added without leave of court (which was the basis of their

motion to strike), and they argued that it failed on the merits as a

matter of law.

Revolution made similar arguments in its demurrer. It argued (in

a footnote) that the third amended complaint was a sham pleading

because it changed the amount of the fee he was to receive for the xXx

sequel under the alleged contract; it did not argue that the change in

the number of contracts alleged rendered the complaint a sham

pleading. It contended that the complaint failed to allege sufficient

facts to support estoppel to assert the statute of frauds. It also asserted

that the alleged writing was insufficient to take the oral agreement out

of the statute of frauds, and that the complaint mischaracterized the

writing.6 And, like Diesel/One Race, it argued the quantum meruit

cause of action was barred by the statute of limitations, and challenged

the promissory estoppel cause of action on the merits and on the ground

that Zakk was not given leave to amend to allege such a claim.

3. Ruling

Over Zakk’s objection, and following additional briefing and a

separate hearing on the issue, the trial court granted defendants’

requests for judicial notice of the alleged writing. The court then

sustained defendants’ demurrers without leave to amend.

The court found that the third amended complaint was a sham

pleading because it alleged there were multiple oral contracts, as

opposed to one contract as previously alleged.7 It observed that

6 As noted, Revolution also asked the trial court to take judicial notice of

the document referenced in the complaint. In its request for judicial notice,

Revolution submitted two versions of the document; one was identical to the

one submitted by Diesel/One Race (except for the Bates number), and the

other was that same document with handwritten notations on it.

7 At oral argument, counsel for Revolution asserted that the trial court

also found that the third amended complaint was a sham pleading because it

changed the allegation regarding the amount of compensation Zakk was to

receive for the xXx sequel. That is not correct. In its ruling, the court stated:

“Defendants contend that the demurrer should . . . be sustained because the

[third amended complaint] is a sham pleading. Specifically, Defendants

assert that the [third amended complaint] (1) now alleges the existence of

multiple oral contracts . . . and (2) alleges different compensation . . . . [¶]

The Court agrees in part. The allegation that [Zakk] entered into several

contracts, as opposed to one contract as previously alleged . . . is clearly an

attempt by [Zakk] to engineer the [third amended complaint] to escape the

reaches of a demurrer.” (Italics added.) The court then discussed only the

“Plaintiff consistently alleged the existence of one oral or implied-in-fact

contract, but suddenly, and without reference to any reason for the

change, asserts the existence of multiple contracts.” The court found

that this change was “clearly an attempt by Plaintiff to engineer the

[third amended complaint] to escape the reaches of a demurrer,” and

concluded that this was a sufficient basis to sustain the demurrer or

strike the complaint.

In addition, the court found that the writing quoted in the third

amended complaint was insufficient to take the alleged oral contract

out of the statute of frauds and, for the reasons stated in its rulings on

the prior demurrers, that the complaint failed to allege facts sufficient

to establish an estoppel to assert the statute. Finally, the court found

that the quantum meruit cause of action was barred by the statute of

limitations, which began to run in 2002, when Zakk performed the

services on the original xXx film, and it sustained the demurrer to the

promissory estoppel cause of action on the ground that it was added

without leave of the court.8

The court entered a judgment of dismissal, from which Zakk

timely filed a notice of appeal.

allegation of multiple contracts, thus impliedly rejecting the other ground

defendants asserted.

8 On the day of the hearing on the demurrer, Zakk filed fictitious name

amendments to the complaint to add One Race Productions, Inc.; Revolution

Production Services, LLC; and Revolution Films. The trial court ordered

them stricken without prejudice.

DISCUSSION

Zakk raises several contentions on appeal, only some of which we

will need to address. He contends the trial court erred in finding that

the third amended complaint was a sham pleading, erred in finding

that the breach of oral contract, breach of implied-in-fact contract,

intentional interference with contractual relations, and declaratory

relief claims (collectively, the contract claims) were barred by the

statute of frauds, erred in finding that the quantum meruit claim was

barred by the statute of limitations, and abused its discretion in

dismissing the promissory estoppel claim. We agree as to all but the

dismissal of the promissory estoppel claim. In light of that, we need not

address Zakk’s contentions regarding the trial court’s granting

defendants’ requests for judicial notice, refusal to consider Zakk’s offer

of proof made with respect to those requests, and his request for leave

to amend.9

A. Standard of Review Governing Judgment Sustaining Demurrers

“On appeal from a judgment sustaining a demurrer to a complaint

the allegations of the complaint must be regarded as true. The court

must, in every stage of an action, disregard any defect in the pleadings

which does not affect the substantial rights of the parties. [Citation.]

Pleadings must be reasonably interpreted; they must be read as a whole

9 Zakk also challenges the trial court’s ruling striking his fictitious name

amendments, which were filed the day of the hearing on the demurrers to the

third amended complaint. We need not address this issue because that

ruling was without prejudice, so Zakk is not precluded from filing the

amendments when the matter is remanded to the trial court.

and each part must be given the meaning that it derives from the

context wherein it appears. . . . In determining whether the complaint

is sufficient as against the demurrer on the ground that it does not state

facts sufficient to constitute a cause of action, the rule is that if on

consideration of all the facts stated it appears the plaintiff is entitled to

any relief at the hands of the court against the defendants the

complaint will be held good although the facts may not be clearly

stated, or may be intermingled with a statement of other facts

irrelevant to the cause of action shown, or although the plaintiff may

demand relief to which he is not entitled under the facts alleged. In

passing upon the sufficiency of a pleading, its allegations must be

liberally construed with a view to substantial justice between the

parties. While orderly procedure demands a reasonable enforcement of

the rules of pleading, the basic principle of the code system in this state

is that the administration of justice shall not be embarrassed by

technicalities, strict rules of construction, or useless forms.” (Gressley v.

Williams (1961) 193 Cal.App.2d 636, 638-639.)

B. Sham Pleading

Under the sham pleading doctrine, “[i]f a party files an amended

complaint and attempts to avoid the defects of the original complaint by

either omitting facts which made the previous complaint defective or by

adding facts inconsistent with those of previous pleadings, the court

may take judicial notice of prior pleadings and may disregard any

inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230

Cal.App.3d 147, 151.) Where no explanation for an inconsistency is

offered, the trial court is entitled to conclude that the pleading party’s

cause of action is a sham and sustain a demurrer without leave to

amend. (Amid v. Hawthorne Community Medical Group, Inc. (1989)

212 Cal.App.3d 1383, 1390-1391.)

As noted, Diesel/One Race argued in their demurrer to the third

amended complaint that the complaint was a sham pleading for two

reasons: it alleged there were multiple contracts (one for each film)

rather than a single contract (applicable to all films), and it changed the

range of compensation Zakk was to receive for sequels generally and the

compensation for the xXx sequel specifically. (In its demurrer,

Revolution argued, in a footnote, only the latter.) The trial court

rejected Diesel/One Race’s second (and Revolution’s only) reason,

finding that the third amended complaint was a sham pleading solely

because it asserted that there were several oral contracts, whereas the

prior complaints “consistently alleged the existence of one oral or

implied-in-fact contract.”10

On appeal, Zakk contends the trial court’s finding was erroneous

because the original, first amended, and second amended complaints

10 The trial court’s rejection of defendants’ argument that the amendment

to change the compensation term was proper. As Zakk explained in his

oppositions to the demurrers, he amended the compensation term due to his

recent receipt of discovery, including the written memorandum that allegedly

set forth the compensation he was to receive for any xXx sequel. In light of

the many years that had passed from the time he entered into the alleged

agreement and the time he filed this lawsuit, the change in the allegation

does not “‘carr[y] with it the onus of untruthfulness.’” (Berman v. Bromberg

(1997) 56 Cal.App.4th 936, 946.) Rather, it simply reflects a faulty

recollection.

consistently had alleged multiple oral contracts. We conclude that

although the allegations in the prior iterations of the complaint were

not as clear as the third amended complaint with regard to alleging

multiple oral contracts, we agree that taken in context, the prior

versions did allege more than one contract.

There is no question that the prior versions of the complaint

alleged a single overarching oral or implied-in-fact contract in which

Diesel/One Race agreed that “for each” film that Diesel starred in and

Zakk helped to develop and/or worked on, Zakk would receive a

producer or executive producer fee and credit. Nor is there any

question that the third amended complaint no longer alleges that

overarching contract, and instead alleges there were separate oral or

implied-in-fact contracts for each film. But read in context, the

allegations of the overarching contract in the prior complaints implied it

was a contract to enter into separate contracts with respect to each film,

because it alleged a range of compensation and credits. Thus, it implied

that the exact fee and credit Zakk would receive had to be agreed upon

for each film. In other words, there would be a separate agreement for

each film with the same general terms as alleged in the overarching

contract, but with the specific compensation and credit to be given for

that film. That this is a plausible interpretation of the allegations of

the prior complaints was implicitly acknowledged by Diesel/One Race in

their demurrer to the original complaint, when they asserted the

complaint was uncertain because, among other things, it was “uncertain

whether [Zakk] has alleged one contract or several[,] and under which

contract(s) his claims arise.”

But even if the prior complaints did not impliedly allege separate

contracts for every one of the films that Zakk helped develop and/or

worked on, there is no question that each of the previous versions of the

complaint expressly alleged an oral or implied-in-fact contract

specifically with respect to the xXx film and its sequel. For example, in

the original complaint, Zakk alleged in paragraph 15: “That picture

[i.e., Strays, produced in 1997] was followed in 2002 with xXx. ZAKK

worked on and helped develop xXx. Accordingly, with respect to xXx

and any sequel of xXx which would be starring and produced by

DIESEL, Defendants DIESEL, ONE RACE FILMS, and/or

REVOLUTION STUDIOS (the production company) agreed to provide

ZAKK with an Executive Producer credit and $275,000 executive

producing fee in exchange for his services.” (Italics added.) In the first

and second amended complaints, Zakk alleged two separate agreements

with regard to xXx and its sequel, one with Diesel/One Race (in

paragraph 16) and one with Revolution (in paragraph 17).

Because the focus of Zakk’s complaint has been, from the start

and throughout the amended complaints, on the alleged agreement with

respect to xXx and its sequel, the omission from the third amended

complaint of the allegation of the overarching agreement has no

practical effect.11 If anything, the amended pleading merely clarifies

11 The only possible exception is the declaratory relief cause of action,

because after the trial court sustained Diesel/One Race’s demurrer to that

cause of action in the original complaint on the ground that it only sought a

declaration as to the parties’ rights and obligations with respect to the xXx

sequel, the cause of action was amended to seek a declaration of rights with

regard to any qualifying sequels of films that Zakk helped develop and/or

the basis for Zakk’s claims for relief. Therefore the sham pleading

doctrine does not apply. (Hahn v. Mirda (2007) 147 Cal.App.4th 740,

751 [“The doctrine is not intended to prevent honest complainants from

correcting erroneous allegations or to prevent the correction of

ambiguous facts”].)

C. Statute of Frauds

Zakk contends the trial court erred in finding the contract causes

of action were barred by the statute of frauds. He argues the statute

does not apply because (1) the third amended complaint alleged the oral

contract was terminable at will, and therefore it could be performed

within a year; (2) the complaint alleged he had fully performed all of his

obligations under the contract; and (3) the complaint alleged a written

memorandum that memorialized the oral agreement. Zakk also

contends that, even if the statute of frauds applied, the third amended

complaint alleged facts sufficient to establish that defendants were

estopped to assert the statute of frauds. We agree that the statute of

frauds does not apply under the allegations of the third amended

complaint.

worked on. However, given our conclusion that the allegations of the

previous complaints implied that there were separate contracts with respect

to each film, the third amended complaint’s omission of the allegation of an

overarching contract coupled with the addition of express allegations of

separate contracts for each film cannot trigger the sham pleading doctrine.

The statute of frauds, as memorialized in Civil Code12 section

1624, sets forth several categories of contracts that “are invalid, unless

they, or some note or memorandum thereof, are in writing and

subscribed by the party to be charged or by the party’s agent.” (§ 1624,

subd. (a).) The defendants contend, and the trial court found, that the

contract at issue in this case falls within the category described in

subdivision (a)(1), i.e., “[a]n agreement that by its terms is not to be

performed within a year from the making thereof.” (§ 1624, subd.

(a)(1).)

In finding the alleged agreement was one that was not to be

performed within a year, the trial court relied upon Tostevin, supra, 160

Cal.App.2d 321. In that case, the court of appeal held that an oral

contract with no termination date, in which the defendant agreed to pay

the plaintiff a certain sum weekly for services in connection with a

television show, was an agreement not to be performed within a year.

The appellate court explained, “[s]ince it is clear from the pleadings

that payment was to continue so long as the program was broadcast

throughout the world, the parties must have contemplated that the

continued performance of the contract was to last more than one year

from the date of making, as indeed it did.” (Id. at p. 328.) Defendants

contend the contract alleged in this case is similar to the contract at

issue in Tostevin because it is evident that the parties intended it was

to be performed over a period longer than a year, inasmuch as it covers

sequels, which could not have been produced within a year.

12 Further undesignated statutory references are to the Civil Code.

Zakk contends that Tostevin is distinguishable because the

plaintiff in that case alleged in his verified complaint that the contract

at issue was to continue for “‘an indefinite period,’” while the third

amended complaint in the present case alleged that the contract was an

at-will contract that could be terminated at any time. (Citing Tostevin,

supra, 160 Cal.App.2d at p. 326.) He argues that under the Supreme

Court opinions in White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336

and Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, when an

alleged oral contract may be terminated at will by either party, it is

capable of being performed within a year and therefore it is not within

the statute of frauds. Defendants respond that those cases are not

applicable here because, unlike in this case, they involved straight-

forward employment contracts. We need not determine whether the

contract alleged in this case was capable of being performed within a

year because even if it could not, there is a different ground for

concluding that the statute of frauds does not apply.

Zakk contends that his allegation that he fully performed all of his

obligations under the contract takes the contract out of the statute of

frauds. (Citing, among other cases, Secrest v. Security National

Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 556 (Secrest)

[“‘Where the contract is unilateral, or, though originally bilateral, has

been fully performed by one party, the remaining promise is taken out

of the statute [of frauds], and the party who performed may enforce it

against the other’”], quoting 1 Witkin, Summary of Cal. Law (10th ed.

2005) Contracts, § 370, p. 414.) Defendants argue that full performance

by itself is not sufficient to take the contract out of the statute and that

Zakk also must allege facts showing such unusual and extraordinary

circumstances that the equitable doctrine of estoppel applies to bar the

assertion of the statute. They are mistaken.

We acknowledge that most of the cases defendants rely upon in

support of their argument (and that the trial court cited in its ruling)

held that the plaintiffs must show more than full performance in order

to avoid the statute of frauds.13 But all but four of those cases involved

oral contracts to make a will (or to devise property in a will) or contracts

not to be performed during the lifetime of the promisor. (See, e.g., Day

v. Greene (1963) 59 Cal.2d 404, 406 [contract to devise property in will];

Di Salvo v. Bank of America (1969) 274 Cal.App.2d 351, 353 [contract to

make a will]; Dini v. Dini (1961) 188 Cal.App.2d 506, 513 [contract not

to be performed during promisor’s lifetime]; Palmer v. Phillips (1954)

123 Cal.App.2d 291, 292 [contract to make a will]; Jirschik v. Farmers

& Merch. Nat. Bank (1951) 107 Cal.App.2d 405 [contract to devise

13 In some of the cases defendants cite, the courts used language of

estoppel in finding that the statute of frauds did not apply, but they did not

hold that facts sufficient to support estoppel are required when full

performance is alleged. (See, e.g., Dougherty v. California Kettleman, etc.

(1937) 9 Cal.2d 58, 81 (Dougherty) [“the circumstances of this case, showing

as they do complete performance by Dougherty, clearly create an estoppel to

plead the statute. Dougherty’s performance was clearly induced by Ochsner’s

representation that he would sign the contract. This creates an estoppel”];

Tobola v. Wholey (1946) 75 Cal.App.2d 351, 357 [“In any event, to permit

appellant at this late date, when the agreement in question has been

performed in its entirety by respondent, to rely on the defense of the statute

of frauds would be manifestly unfair to respondent and would allow the

appellant to be enriched unjustly at his expense”].)

property in a will]; Walker v. Calloway (1950) 99 Cal.App.2d 675, 676

[contract to devise property in will]; Baker v. Bouchard (1932) 122

Cal.App. 708, 709 [contract to devise property in a will].) Those

contracts, which fall under different contract categories in the statute of

frauds,14 are treated differently than contracts that fall under

subdivision (a)(1) of section 1624.

The section of the Restatement Second of Contracts describing the

applicability of the statute of frauds on contracts not to be performed

within a year states: “(1) Where any promise in a contract cannot be

fully performed within a year from the time the contract is made, all

promises in the contract are within the Statute of Frauds until one

party to the contract completes his performance. [¶] (2) When one

party to a contract has completed his performance, the one-year

provision of the Statute does not prevent enforcement of the promises of

other parties.” (Rest.2d, Contracts, § 130.) Comment d to this section

further explains: “If either party promises a performance that cannot

be completed within a year, the Statute applies to all promises in the

contract, including those which can or even must be performed within a

year. But unlike other provisions of the Statute, the one-year provision

does not apply to a contract . . . which has been fully performed on one

14 A contract that is not to be performed during the lifetime of the

promisor falls under section 1624, subdivision (a)(5). A contract to make a

will or devise property in a will made before 1985 fell under former section

1624, subdivision (6); such a contract made currently is governed by Probate

Code section 21700. (14 Witkin, Summary of Cal. Law (11th ed. 2017) Wills

and Probate, § 358, p. 437.)

side, whether the performance is completed within a year or not.”

(Rest.2d, Contracts, § 130, comment d, italics added.)

The California Supreme Court followed this rule in Dougherty,

supra, 9 Cal.2d 58 and Dutton v. Interstate Investment Corp. (1941) 19

Cal.2d 65 (Dutton). In Dougherty, the plaintiff sought to enforce against

the defendant an oral contract (which was reduced to writing, but the

defendant’s predecessor never signed it) in which the defendant’s

predecessor agreed to pay the plaintiff, in exchange for the plaintiff’s

services in locating lands and obtaining prospecting permits, a royalty

in any oil or gas produced from lands embraced within the prospecting

permit. (Dougherty, supra, 9 Cal.2d at p. 64.) The plaintiff located the

lands and obtained the permits, but the defendant refused to pay the

agreed-upon royalty. The Supreme Court rejected the defendant’s

contention that enforcement of the contract was barred by the statute of

frauds. The Court stated: “The fact that the agreement between

Dougherty and [the defendant’s predecessor] rested in parol is of no

legal significance in this case. This agreement was fully executed by

Dougherty. Assuming the contract could not be performed within a

year and therefore fell within the statue of frauds, the circumstances of

this case, showing as they do complete performance by Dougherty,

clearly create an estoppel to plead the statute. Dougherty’s

performance was clearly induced by [the defendant’s predecessor’s]

representations that he would sign the contract. This creates an

estoppel.” (Id. at p. 81.) Thus, although the Court in Dougherty spoke

in terms of estoppel, it did not require the plaintiff to show anything

more than his full performance in reliance on the promise of the

defendant.

In Dutton, the plaintiff (Dutton), and two others entered into an

oral agreement in which Dutton and one of the others would obtain, on

behalf of a corporation controlled by the third person, a lease and

permit for oil development on land Dutton located, and the three parties

would share any profits from the development. When the corporation

assigned the permit to another company for consideration, it refused to

share any portion of the consideration with Dutton. The Supreme

Court rejected the corporation’s argument that the statute of frauds

barred Dutton from enforcing the oral contract because it was not

intended to be performed within a year. The Court stated, “Assuming

that the agreement in the present case falls within this provision of the

statute of frauds, the finding of the trial court that Dutton had fully

performed all of his obligations under the contract operates to remove

the bar of the statute.” (Dutton, supra, 19 Cal.2d at p. 70.) The Court

cited to, among other authorities, section 198 of the original

Restatement of Contracts in support of its statement that full

performance removes the statute from the statute of frauds. That

section provides: “Where any of the promises in a bilateral contract

cannot be fully performed within a year from the time of the formation

of the contract, all promises in the contract are within Class V of § 178

[which sets out classes of contracts within the statute of frauds], unless

and until one party to such a contract completely performs what he has

promised. When there has been such complete performance, none of the

promises in the contract is within Class V.” (Rest. Contracts, § 198.)

In contrast to oral contracts that are not to be performed within a

year, oral contracts to make a will or devise property in a will

consistently have been subjected to stricter application of the statute of

frauds. The reason for the stricter application was noted by the

California Law Revision Commission in its report recommending

legislation that resulted in the repeal from section 1624 of the oral

contract to devise property in a will provision and enacting a specific

statute of frauds for such contracts as part of the Probate Code. The

Commission observed: “Where an oral agreement to make or not to

revoke a will is alleged after promisor is deceased and unable to testify,

there is an opportunity for the fabrication of testimony concerning the

existence of the agreement. Sound policy requires some form of written

evidence that such an agreement actually exists.” (16 Cal. Law

Revision Com. Rep. (1982) pp. 2348-2349, fns. omitted.)

This concern about fabrication of testimony is significantly

lessened in a case such as this one, where all parties to the alleged

contract are able to testify as to its existence or nonexistence. Thus, we

conclude that the holdings of cases involving oral contracts to make a

will or devise property in a will, which require evidence of unusual and

extraordinary circumstances to support application of estoppel

regardless whether there was full performance by one party, do not

apply here.

We also conclude that the holdings of two other cases that

defendants rely upon--Secrest, supra, 167 Cal.App.4th 544 and Denio v.

Brennecke (1935) 6 Cal.App.2d 678, 680 (Denio)--similarly do not apply

here because they both involve provisions of the statute of frauds other

than the “not to be performed within a year” provision. The alleged oral

contract in Secrest was a forbearance agreement that purportedly

modified a promissory note and deed of trust. The alleged oral contract

in Denio was an agreement by the defendants to give the plaintiffs an

interest in oil rights in the defendants’ land in exchange for the

plaintiffs’ legal services. The courts in both cases found that the

contracts came within the provision of section 1624 governing

agreements for the sale of real property or an interest in real property.

(Secrest, supra, 167 Cal.App.4th at pp. 552-553; Denio, supra, 6

Cal.App.2d at pp. 680-681.) Thus, neither court addressed the provision

governing contracts not to be performed within a year.

Although the remaining two cases defendants rely upon for their

argument that full performance is not sufficient by itself to take an oral

contract out of the statute of frauds involved contracts under the “not to

be performed within a year” category, neither applies here.

In Gressley v. Williams, supra, 193 Cal.App.2d 636, the appellate

court rejected the plaintiff’s argument that his full performance of an

oral contract not to be performed within a year took the contract out of

the statute of frauds. The court observed that “[t]he mere rendition of

services is not usually such a part performance of an oral contract as

will relieve the contract from the operation of the statute.” (Id. at p.

641.) The only support the court gave for this statement, however, was

Kobus v. San Diego Trust & Savings Bank (1959) 172 Cal.App.2d 574,

which involved an oral contract to make a will. Thus, we find Gressley

unpersuasive on this point.

The other case involving a contract not to be performed within a

year, Ruinello v. Murray (1951) 36 Cal.2d 687 is inapposite because it

involved partial, rather than full, performance of the contract at issue.

In that case, the alleged oral contract was for five years, but the parties

ended the relationship after three years. Thus, the Supreme Court did

not address the effect of full performance on the statute of frauds; the

only issue raised and discussed was whether the plaintiff had alleged

facts sufficient to establish estoppel to assert the statute. We agree

with the court of appeal in Nesson v. Moes (1963) 215 Cal.App.2d 655,

which found that “Ruinello is peculiarly within the area of the law

relating to estoppel,” and therefore is not applicable to a case in which

the plaintiff alleges he fully performed all of his obligations under an

oral contract that falls under the “not to be performed within a year”

provision of the statute of frauds. (Id. at p. 658.)

In short, we hold that Zakk’s allegation that he fully performed all

of his obligations under the alleged oral or implied-in-fact contract was

sufficient to take the contract out of the statute of frauds. In light of

our holding, we need not address Zakk’s other arguments related to the

statute of frauds, including whether the trial court properly took

judicial notice of the letter defendants submitted or whether the court

erred in failing to consider the materials Zakk submitted in response to

defendants’ submission and in support of his offer of proof.

D. Quantum Meruit

Defendants’ demurrer to the quantum meruit cause of action

alleged in the third amended complaint, and the trial court’s ruling

sustaining those demurrers, were based on the ground that the two-

year statute of limitations began to run when Zakk’s services with

respect to the original xXx film ended in 2002, and therefore the claim,

brought in 2017, was time-barred. Zakk contends on appeal that the

trial court erred in sustaining the demurrers on this ground because

(1) Code of Civil Procedure section 339, subdivision (1), which sets forth

the statute of limitations, expressly states that the cause of action shall

not be deemed to have accrued until the aggrieved party discovers the

loss or damage; and (2) a quantum meruit claim does not accrue until

the repudiation or breach of the oral promise upon which it is based,

which in the present case did not occur until the xXx sequel was

released in 2017.

Zakk’s first contention is based upon a misreading of Code of Civil

Procedure section 339, subdivision (1). That statute provides, in

relevant part, that it applies to “[a]n action upon a contract, obligation

or liability not founded upon an instrument of writing . . . ; or an action

founded upon a contract, obligation or liability, evidence by a certificate,

or abstract or guaranty of title of real property, or by a policy of title

insurance; provided, that the cause of action upon a contract, obligation

or liability evidenced by a certificate, or abstract or guaranty of title of

real property or policy of title insurance shall not be deemed to have

accrued until the discovery of the loss or damage suffered by the

aggrieved party thereunder.” (Italics added.) As is clear from the

italicized language, the discovery of damages provision does not apply

to the facts of this case, because the contract at issue is not alleged to

have been evidenced “by a certificate, or abstract or guaranty of title of

real property or policy of title insurance.” Thus, Zakk’s first contention

fails.

Zakk’s second contention, however, is well taken. Although the

statute of limitations on a cause of action for quantum meruit for

personal services usually begins to run when those services or the

relationship between the parties terminate (see, e.g., Maglica v.

Maglica (1998) 66 Cal.App.4th 442, 452-454), that is not always the

case. Where services are provided with the understanding that

payment for those services will be made at some time after the

termination of those services or upon some contingency, the statute of

limitations does not begin to run until that time arrives or contingency

occurs. (See, e.g., Fracasse v. Brent (1972) 6 Cal.3d 784, 791-792

[attorney was hired under a contingency fee agreement and discharged

by client without cause; “the attorney’s [cause of] action for reasonable

compensation accrues only when the contingency stated in the original

agreement has occurred”]; Thompson v. Ruiz (1901) 134 Cal. 26, 28 [the

plaintiff provided services for the promisor, and parties agreed he would

be paid upon the promisor’s sale of certain land; Supreme Court held

that “the statute of limitations did not begin to run against plaintiff’s

claim until it matured and could be enforced, . . . regardless of whether

the time fixed was reasonable or unreasonable”].)

In the present case, Zakk alleged that defendants agreed to pay

him the reasonable value of the services he performed “when the xXx

Sequel was released.” He also alleged that the sequel was released “on

or about January 20, 2017.” Therefore, the two-year statute of

limitations on his quantum meruit cause of action did not begin to run

until January 20, 2017, and the trial court erred in finding that his

claim, filed on March 17, 2017, was time-barred.15

E. Promissory Estoppel

As noted, the trial court sustained defendants’ demurrers to

Zakk’s promissory estoppel cause of action on the ground that he added

it without leave of court. Zakk contends the court’s ruling was in error

because his “new cause of action for promissory estoppel responds

directly to the Court’s reasoning for sustaining the Demurrers to the

[second amended complaint].” We conclude the trial court did not abuse

its discretion in dismissing the cause of action.

“Following an order sustaining a demurrer or a motion for

judgment on the pleadings with leave to amend, the plaintiff may

amend his or her complaint only as authorized by the court’s order.

[Citation.] The plaintiff may not amend the complaint to add a new

cause of action without having obtained permission to do so, unless the

new cause of action is within the scope of the order granting leave to

amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th

1018, 1023.)

In this case, when the trial court sustained the demurrers to the

second amended complaint on statute of frauds grounds, it granted

Zakk leave to amend, and specifically granted him leave to add a

quantum meruit cause of action. Zakk argues that even though the

15 Because defendants did not challenge Zakk’s quantum meruit claim on

the merits in their demurrers or their respondents’ briefs, we do not address

the merits here.

court did not directly give him leave to add a promissory estoppel cause

of action, he was allowed to do so because that cause of action “directly

responds to the Trial Court’s concerns” regarding the statute of frauds

because promissory estoppel is not subject to the statute. We disagree.

The granting of leave to amend after a demurrer is sustained on one

ground does not give the plaintiff a license to add any possible cause of

action that might not be subject to dismissal on that ground.

Otherwise, there would be virtually no limitation on amendments

following the sustaining of a demurrer.

Because Zakk did not obtain leave from the trial court to amend

his complaint to add a promissory estoppel cause of action, we affirm

the judgment of dismissal with respect to that cause of action.

DISPOSITION

The judgment is affirmed to the extent it dismissed the cause of

action for promissory estoppel, and reversed with respect to the

remaining causes of action. Zakk shall recover his costs on appeal.

CERTIFIED FOR PUBLICATION

WILLHITE, Acting P. J.

We concur:

COLLINS, J. CURREY, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.