I. FACTUAL BACKGROUND

Because this matter comes before us as a result of the court's sustaining cross-

defendants' demurrers, we take the factual background from the applicable cross-

complaint, exhibits attached thereto, and matters of which the court took judicial notice.

A. Subdivision Map Approval

On September 7, 2005, the City adopted Resolution No. 21388 conditionally

approving a tentative subdivision map permitting the subdivision of a 1.46-acre parcel for

a hotel and residential condominium units at the location of 640 North Indian Canyon,

Palm Springs (the project). The project also included a use permit authorizing multi-

family construction as a part of the project.

Among the conditions of approval was condition 5 requiring Spanish Inn to be

"responsible for the design and construction of the street improvements required to

implement the 'Movie Colony Traffic Calming Program' [Traffic Program]." Condition 6

3 stated, "The Engineering Division has estimated the total cost of the 'Movie Colony

Traffic Calming Program' at approximately $362,000 with an estimated fair share of the

$111,000 assigned to the proposed development." Condition 6 also provided that

Spanish Inn could request the City to enter into a reimbursement agreement providing for

reimbursement from other property owners (reimbursement Agreement) also subject to

the street traffic program: "Reimbursement shall be determined as the proportionate

share of the cost of constructing the street improvements, as approved by the City

Engineer, and reimbursement shall be made to the applicant as reimbursements are

received, if any, in accordance with the terms of the reimbursement agreement."

After the tentative map approval, in 2005 Spanish Inn commenced construction of

the Traffic Program's offsite street improvements and needed to complete that

construction before the final subdivision map would be approved by the City. On

February 13, 2008, the City approved Spanish Inn's final subdivision map, and the offsite

street improvements were completed at that time.

B. The Loans

In April 2008 Nara loaned Spanish Inn $6 million for the purpose of constructing

improvements on the property. The original maturity date of the loan was October 18,

2009.

On March 25, 2010, Nara Bank and Spanish Inn agreed to extend the maturity date

of the $6 million loan. At the time of the extension of the $6 million loan, Nara Bank

loaned Spanish Inn an additional $1.3 million.

4 In need of further funds, Spanish Inn requested financial assistance from the City.

On January 10, 2010, the City approved a $500,000 loan agreement, subject to a number

of covenants and conditions.

Under article II, paragraph 2.1 of the loan agreement with the City, disbursements

would be made to Spanish Inn only after a number of conditions were satisfied. Among

the conditions to disbursement of loan funds were the requirements that (1) no condition

of default as defined in the agreement has been committed; (2) Spanish Inn was to submit

to the City an amended use permit application to convert 20 condominium units in the

previously approved plan to no more than 34 additional hotel units and fully cooperate

with the City regulatory entities and officials in the City's review of the amended use

permit application; and (3) all remaining work must be fully completed and a certificate

of occupancy be completed on or before February 9, 2011.

Because Spanish Inn was unable to complete construction in a timely fashion,

Nara extended the maturity dates of the $6 million and $1.3 million loans on two

occasions, to March 31, 2011, and May 15, 2011, respectively.

Both loans required Spanish Inn to obtain a certificate of occupancy from the City

by May 6, 2011. Spanish Inn agreed to this obligation in a change in terms agreement

(CITA).

C. Spanish Inn Changes Project

Spanish Inn originally planned for the Spanish Inn Hotel to offer hotel rooms and

sell condominiums. Spanish Inn thereafter decided to convert the project to only

providing hotel rooms. However, Spanish Inn concedes that it did not obtain a building

5 permit for the hotel-only project until May 12, 2011, after the final maturity dates of both

loans and the deadline for obtaining a certificate of occupancy.

D. The City Imposes Additional Conditions

In April of 2011 the City notified Spanish Inn of changes that needed to be made

to the project in order to comply with the Americans With Disabilities Act (ADA). As

Spanish Inn concedes in its cross-complaint, however, "The changes the City imposed

meant that the project could not possibly be completed with a Certificate [of Occupancy]

issued by May 9, 2011."

E. Reimbursement Agreement

Attached to Spanish Inn's fourth amended cross-complaint, but not to its sixth

amended cross-complaint, is a reimbursement agreement with the City, dated March 7,

2011. The reimbursement agreement provided for collection and reimbursement of funds

from the owners of two neighboring properties, Colony Palms Hotel and Indian Manor.

Upon Spanish Inn substantiating its costs, the City agreed that within a reasonable time it

would use reasonable efforts to collect up to $45,288 from the Colony Palms Hotel and

up to $50,000 from the Indian Manor property. Upon receipt of payments from these

other property owners, the City would then forward the payments on to Spanish Inn. The

reimbursement agreement stated that it "supersedes all negotiations and previous

agreements between the parties with respect to all or part of the subject matter

hereof . . . ."

According to Spanish Inn, that agreement was contrary to the resolution that

estimated its share of the costs for the Traffic Project at $111,000. As a result of the

6 reimbursement agreement, according to Spanish Inn, it was to be reimbursed

"substantially less than the approximately $400,000 they should have been reimbursed."

Although acknowledging it signed the reimbursement agreement, Spanish Inn alleges it

did so only because the City threatened to revoke its permit if it did not do so.1

F. Spanish Inn Defaults on the Loans

On May 6, 2011, Spanish Inn defaulted on the $6 million and $1.3 million loans

by failing to obtain the certificate of occupancy.

On May 15, 2011, the $6 million and $1.3 million loans became due. Spanish Inn

defaulted on the $6 million and $1.3 million loans by failing to repay the amounts due.

G. Foreclosure Proceedings and Instant Action

On May 27, 2011, Nara recorded a notice of default.

On June 8, 2011, Nara filed this action against Spanish Inn, Kohan, and Ramy.

Thereafter, Nara sold the $6 million and $1.3 million loans to Pacifica. As part of the

sale, Nara assigned its rights under the deed of trust to Pacifica. The assignment was

recorded on August 2, 2011.

On September 1, 2011, Pacifica, as assignee, recorded a notice of sale of the

Spanish Inn Hotel, setting the trustee's sale for September 22, 2011 at 9:00 a.m.

However, prior to the sale, Spanish Inn filed a chapter 11 bankruptcy petition. The

automatic stay thus prevented the trustee's sale from going forward on the date scheduled.

1 As we shall explain, post, on appeal Spanish Inn does not assert that the City breached the reimbursement agreement. 7 Thereafter, the bankruptcy court granted Pacifica relief from the automatic stay,

allowing the trustee's sale to be rescheduled. On December 14, 2011, Pacifica purchased

Spanish Inn at the trustee's sale.

H. The Cross-Complaints

On August 1, 2011, Spanish Inn, Kohan, and Ramy filed their first cross-

complaint against Nara, the City of Palm Springs, and three other cross-defendants.

Spanish Inn did not name Pacifica as a cross-defendant in its initial cross-complaint.

Thereafter, Spanish Inn filed several additional amended cross-complaints, with the last

one being the sixth amended cross-complaint, which is the operative pleading in this

action.

In the sixth amended cross-complaint Spanish Inn asserted three causes of action

against Pacifica, for rescission of the foreclosure, intentional interference with contractual

relationship, and intentional interference with prospective economic advantage. The

sixth amended cross-complaint alleged four causes of action against the City, for breach

of contract, breach of the covenant of good faith and fair dealing, unlawful taking of

private property, and indemnity. Spanish Inn's appeal as against the City, however is

limited to the breach of contract and breach of the covenant of good faith and fair dealing

causes of action. Moreover, Spanish Inn asserts in its opening brief that it "is not

contending on appeal that the Reimbursement Agreement was breached by the City."

The court sustained the City's demurrer without leave to amend. In doing so, the

court found, as to the causes of action for breach of contract, breach of the covenant of

good faith and fair dealing, and indemnification asserted against the City:

8 "[T]he alleged contracts consist of the tentative tract map approval, loan agreement and reimbursement agreement. However the tract map approval is 'legislative adjudicatory' in nature not contractual. [Citation.] The loan agreement required Spanish Inn to timely obtain the certificate of occupancy, which [cross-complainants] allege they did not do. [Cross-complainants] admit they mistakenly included allegations regarding breach of the reimbursement agreement. . . . The twelfth cause of action [for indemnification] is sustained without leave to amend because [cross-complainants] have failed to allege any basis for indemnification. [Cross-complainants] have not and cannot allege facts showing that they are joint tortfeasors."

The court also sustained Nara's demurrer without leave to amend. In doing so, the

court found as follows:

"As to the 1st and 2nd causes of action [for breach of contract and breach of the covenant of good faith and fair dealing], [cross- complainants] have failed to plead a breach of contract by Nara. Although these causes of action [are] are titled 'Breach of Contract', [cross-complainants] identify the 'contracts' which were allegedly breached simply as: 'Construction Loan Agreements and other Related Loan Documents.' No further description is provided, not even the dates of the alleged contracts, let alone identification of the parties to the 'contracts' . . . . Further, the 'contracts' referred to in this cause of action are not attached to the pleading, nor are the applicable terms pled verbatim. Although one particular 'Construction Loan Agreement,' dated April 18, 2008, executed only between Spanish Inn and Nara Bank . . . is referred to earlier in the pleading [citation] and is attached to the pleading as Exhibit 'D', the First Cause of Action does not refer to that Exhibit 'D', or indicate that it is the contract that was allegedly breached. Although [cross- complainants] complain about a whole litany of actions by Nara Bank [citation], it is impossible to know whether any of those are actually a breach of contract without the required identification of the contract and its terms. Further, due to the vagueness of the pleading, it is not possible to determine whether the alleged contract is written, oral, or implied. [Citation.] [¶] As to the 3rd cause of action, [cross-complainants] have failed to plead fraud with the requisite specificity. Cross-complainants generally allege that Nara fraudulently induced them to pay additional monies. . . . In addition, in complaints against a corporation, plaintiff must allege the names

9 of the persons who made the misrepresentations and their authority to speak for the corporation. [Citation.] [¶] As to the 12th cause of action, [cross-complainants] have failed to allege any basis for indemnification."

As to Pacifica's demurrer, the court found:

"[Cross-complainants] have failed to allege any basis for rescission. [Cross-complainants] allege only that 'Pacifica and Roes . . . were not bona fide purchasers of the promissory note because they were aware of the claims . . . herein above alleged before they purchased the promissory note.' [Citation.] As noted above, however, [cross- complainants] have failed to allege any viable claims against, presumably, NARA. Moreover, [cross-complainants] have failed to allege a basis for setting aside the trustee's sale. [¶] As to the [interference claims], [cross-complainants] have failed to allege any actions designed to induce a breach of [cross-complainants'] contract with NARA or acts that disrupted [cross-complainants'] relationship with NARA. [Cross-complainants] allege only that Pacifica presented a scheme to NARA under which NARA would withhold funding to [cross-complainants] so that [cross-complainants] would not be able to timely obtain the certificate of occupancy. In other words, Pacifica is alleged to have caused NARA's breach of contract. However, as noted above, [cross-complainants] have not sufficiently alleged a breach of contract by NARA. [¶] As to the 12th cause of action [for indemnity] see the court's discussion on Nara's demurrer."

DISCUSSION

I. STANDARDS GOVERNING DEMURRERS

When reviewing a demurrer ruling, we determine whether the complaint states a

cause of action. (Moore v. Regents of University of California (1990 51 Cal.3d 120,

125.) Although we assume that the complaint's well-pleaded allegations are true, we do

not assume the truth of conclusions of fact or law. (Ibid.) Appellate courts interpret the

complaint reasonably by "reading it as a whole and all its parts in their context." (Ibid.)

10 Facts appearing in exhibits to a complaint, like well-pleaded allegations in the

complaint, are taken as true on demurrer. (Dodd v. Citizens Bank of Costa Mesa (1990)

222 Cal.App.3d 1624, 1627.) When the facts in exhibits are contrary to the facts alleged

in the complaint, however, the exhibits take precedence. (Ibid.)

We need not accept as true allegations that are contradicted by, or inconsistent

with, matters subject to judicial notice, including exhibits attached to the complaint. (Del

E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Holland v.

Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) Appellate courts may rely

on and accept as true the contents of exhibits attached to the complaint and "treat as

surplusage the pleader's allegations as to the legal effect of the exhibits." (Barnett v.

Fireman's Fund. Ins. Co. (2001) 90 Cal.App.4th 500, 505.)

II. ANALYSIS

A. Nara's Demurrer

1. Breach of contract cause of action

"To state a cause of action for breach of contract, a party must plead the existence

of a contract, his or her performance of the contract or excuse for nonperformance, the

defendant's breach and resulting damage. [Citation.] If the action is based on alleged

breach of a written contract, the terms must be set out verbatim in the body of the

complaint or a copy of the written agreement must be attached and incorporated by

reference." (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

Here, the first cause of action against Nara for breach of contract only identifies

the contracts sued upon as the "Construction Loan Agreements and other Related Loan

11 Documents." However, the terms of the alleged "contracts" are not specified, nor are the

particular terms that were allegedly breached. Nor are the alleged contracts attached to

the cross-complaint and incorporated by reference. Accordingly, the court did not err in

sustaining Nara's demurrer to this cause of action.

Spanish Inn asserts that because this was Nara's first demurrer, "Spanish Inn was

never made aware of these claimed deficiencies and was not afforded the opportunity to

remedy these clearly correctable errors." However, this ignores the fact that the court had

previously sustained Pacifica's demurrer to that cause of action in the fourth amended

cross-complaint, without leave to amend, on the same basis. Therefore, Spanish Inn had

the opportunity to correct this deficiency when it filed its sixth amended cross-complaint

against Nara.

In a supplemental letter brief Spanish Inn has cited two cases in support of its

breach of contract cause of action against Nara, California Bank & Trust v. DelPonti

(2014) 232 Cal.App.4th 162, and Dameron Hospital Assn. v. AAA Northern California,

Nevada & Utah Ins. Exchange (2014) 229 Cal.App.4th 549, that were filed after briefing

was completed. However, those cases are inapposite.

In California Bank & Trust v. DelPonti, supra, 232 Cal.App.4th 162, the Court of

Appeal was presented with the question of whether a waiver of defenses was enforceable

in guarantees. (Id. at p. 166.) The court there was not presented with the question of

whether a breach of contract claim had been adequately alleged in a pleading.

Similarly, Dameron Hospital Assn. v. AAA Northern California, Nevada & Utah

Ins. Exchange, supra, 229 Cal.App.4th 549 only addressed the well-settled principle that

12 contract terms may be inferred from usage of the parties. (Id. at p. 569.) Here, in its

cross-complaint, Spanish Inn did not allege that any terms should be inferred in the loan

agreements (which, as discussed, are not even identified in the cross-complaint) based

upon usage of the parties.

Spanish Inn also cites in its letter brief to two cases decided before the briefing in

this matter that it failed to cite in either of its briefs. These cases also do not assist

Spanish Inn's position. In Construction Protective Services, Inc. v. TIG Specialty Ins.

Co. (2002) 29 Cal.4th 189, 198-199, the California Supreme Court held that "[i]n an

action based on a written contract, a plaintiff may plead the legal effect of the contract

rather than its precise language." Here, however, not only did Spanish Inn fail to plead

the legal effect of the contracts it was suing on, it failed to identify them at all.

Last, in its letter brief, Spanish Inn cites Locke v. Warner Bros., Inc. (1997) 57

Cal.App.4th 354, 363-368, for the proposition that the covenant of good faith and fair

dealing bars a party to a contract from acting in a way that frustrates the other party's

ability to receive the benefits of the contract. However, as we discuss, post, because

Spanish Inn cannot state a cause of action for breach of contract against Nara, it cannot

state a claim for breach of the covenant of good faith and fair dealing.

2. Second cause of action for breach of the covenant of good faith and fair dealing

A covenant of good faith and fair dealing is implied by law in every contract.

(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349.) This covenant, however, is

tied to the underlying contract from which it arises, and cannot "'"be endowed with an

13 existence independent of its contractual underpinnings." '" (Ibid.) In other words, the

covenant "cannot impose substantive duties or limits on the contracting parties beyond

those incorporated in the specific terms of their agreement." (Id. at pp. 349-350, italics

added.)

Thus, because the breach of contract cause of action was properly dismissed based

upon a failure to plead the terms of the contract that were allegedly breached, this cause

of action likewise fails.

3. Third cause of action for fraud

Our Supreme Court requires fraud claims to be "pled specifically; general and

conclusory allegations do not suffice." (Lazar v. Superior Court (1996) 12 Cal.4th 631,

645.) As our high court explained, "'This particularity requirement necessitates pleading

facts which "show how, when, where, to whom, and by what means the representations

were tendered."' [Citation.] A plaintiff's burden in asserting a fraud claim against a

corporat[ion] is even greater. In such a case, the plaintiff must 'allege the names of the

persons who made the allegedly fraudulent representations, their authority to speak, to

whom they spoke, what they said or wrote, and when it was said or written.'" (Ibid.)

Here, Spanish Inn has not met the particularity requirement for pleading a fraud

claim. In its fraud cause of action Spanish Inn asserts, "Cross Complainants received

repeated assurances that Nara Bank would promptly honor draws resulting from

construction work at the Project, and consistent with its prior custom and practice, extend

the Maturity Date if necessary . . . ." Spanish Inn further alleges, "Nara Bank also

represented that it would Reallocate the Funds as necessary to enable Cross Complainants

14 to complete construction and obtain the Certificate of Occupancy." However, there are

no allegations containing the names of the persons who on behalf of Nara made the

allegedly fraudulent representations, their authority to speak, to whom they spoke, what

they said or wrote, and when the representations were said or written. Therefore, the

court did not err in sustaining Nara's demurrer to this cause of action.

B. Pacifica's Demurrer

1. Fourth cause of action for "rescission" and restitution

"Civil Code sections 2924 through 2924k . . . govern nonjudicial foreclosure sales

pursuant to a power of sale contained in a deed of trust. 'The purposes of this

comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick,

inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the

debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly

conducted sale is final between the parties and conclusive as to a bona fide purchaser.

[Citation.]' [Citation.] '[T]he statutory scheme also evidences an intent that a properly

conducted sale be a final adjudication of the rights of the creditor and debtor [citations]

and the sanctity of title of a bona fide purchaser be protected.'" (Biancalana v. T.D.

Service Co. (2013) 56 Cal.4th 807, 813-814.)

"'The purchaser at a foreclosure sale takes title by a trustee's deed. If the trustee's

deed recites that all statutory notice requirements and procedures required by law for the

conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the

sale has been conducted regularly and properly; this presumption is conclusive as to a

bona fide purchaser.'" (Biancalana v. T.D. Service Co., supra, 56 Cal.4th at p. 814.)

15 Moreover, "[o]nce the [trustee's sale is completed], the trustor has no redemption

rights." (Ballengee v. Sadlier (1986) 179 Cal.App.3d 1, 5.) Absent a "failure to comply

with some required procedure which deprive[s] the trustor of his right of reinstatement or

redemption," trustee's sales cannot be set aside or rescinded. (Moeller v. Lien (1994) 25

Cal.App.4th 822, 831.)

Spanish Inn asserts that it is entitled to rescind the foreclosure because when it

purchased the promissory note from Nara, Pacifica was not a bonafide purchaser because

it knew of Spanish Inn's claims at the time of the sale. Specifically, Spanish Inn asserts

that, "[b]y virtue of the allegations alleged herein, [Nara] was not legally justified in

declaring [Spanish Inn] in default under the promissory note," and therefore Pacifica, as

Nara's successor, was also not entitled to foreclose. This contention is unavailing.

As we have discussed, ante, Spanish Inn has not alleged any viable claims against

Nara. Therefore, it cannot set aside the foreclosure by Pacifica based upon alleged

wrongdoing by its predecessor, Nara.

2. Fifth and sixth causes of action for interference with contract and prospective economic advantage

The elements of a claim of intentional interference with contractual relations are:

"'(1) a valid contract between the plaintiff and a third party; (2) defendant's knowledge of this

contract; (3) defendant's intentional acts designed to induce a breach or disruption of the

contractual relationship; (4) actual breach or disruption of the contractual relationship; and

(5) resulting damage.'" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26,

55.) The elements of a claim for intentional interference with prospective economic

16 advantage are the same, except that instead of a contract between the plaintiff and a third

party, there must exist between the plaintiff and a third party an economic relationship with

the probability of future economic benefit to the plaintiff. (Korea Supply Co. v. Lockheed

Martin Corp. (2003) 29 Cal.4th 1134, 1153.)

Causation is an essential element of a claim of intentional interference with

contractual relations (as well as a claim of intentional interference with prospective economic

advantage). (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 391.) To

establish causation, a plaintiff must prove that "but for" a defendant's interference, the

plaintiff's contractual relationship with a third party would not have been disrupted and

plaintiff would not have sustained the alleged losses. (Korea Supply Co. v. Lockheed Martin

Corp., supra, 29 Cal.4th at pp. 1165-1166; Quelimane Co. v. Stewart Title Guaranty Co.,

supra, 19 Cal.4th at p. 55; Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242,

271.)

Here, the cross-complaint fails to allege any facts that support Spanish Inn's

allegation that Pacifica undertook intentional acts designed to induce a breach or

disruption in Nara Bank's contractual relationship with Spanish Inn. Spanish Inn only

asserts that Pacifica induced "NARA BANK to engage in acts that would prevent

SPANISH INN from timely completing the project." The cross-complaint also alleges

that Pacifica "presented a scheme to NARA BANK under which NARA BANK would

withhold funds from SPANISH INN with the expectation that SPANISH INN would not

be able to meet the deadline for obtaining the Certificate of Occupancy, thus allowing

NARA BANK to declare SPANISH INN in default."

17 However, Spanish Inn alleges no facts to support either of these allegations.

Moreover, because Pacifica was the successor to Nara on the loan, it would be impossible

for Pacifica to interfere with Spanish Inn's relationship with Nara. Further, Spanish Inn

does not allege what the inducement involved was or when it occurred. Finally, as we

have discussed, ante, Spanish Inn has not alleged any facts showing that Nara breached

any provision in any agreement with Spanish Inn. Therefore, because there was no

breach, there could be no inducement by Pacifica.

C. The City's Demurrer

Spanish Inn contends that the City breached two agreements: Resolution No.

21388 (the tentative map approval) and the March 2010 Loan Agreement.2 These

contentions are unavailing.

1. Resolution No. 21388

Spanish Inn contends that Resolution No. 21388 amounts to a contract because it

imposed conditions upon Spanish Inn requiring offsite street work and further

annunciated Spanish Inn's right to seek partial reimbursement of its total cost of

construction. This contention is unavailing.

Municipal land use approvals such as the tentative map approval in Resolution No.

21388 are not contractual agreements, but constitute an exercise of the City's police

power under article XI, section 7 of the California Constitution. (Bownds v. City of

2 The seventh cause of action also alleged that the City breached the reimbursement agreement. However, as previously noted, Spanish Inn has elected not to appeal this portion of the trial court's ruling.

18 Glendale (1980) 113 Cal.App.3d 875, 879 ["Land use regulation in California has

historically been a function of local government under the grant of police power

contained in California Constitution, article XI, section 7."].)

Under Government Code section 66474, a municipality may approve, or

conditionally approve, a tentative subdivision map and when it does so, it is acting in a

quasi-judicial capacity. (Griffis v. County of Mono (1985) 163 Cal.App. 3d 414, 426

["approval of a tentative subdivision map . . . is an adjudicatory administrative

decision"].) Thus, the City's adoption of Resolution No. 21388 did not create a contract

as to the offsite improvements.

Spanish Inn asserts that if Resolution No. 21388 is not a contract then that means

that local agencies such as the City may escape any financial liability for the street

improvements. However, the City's responsibility for collecting shares from the

adjoining landowners is governed by the terms of the reimbursement agreement.

However, as noted, ante, Spanish Inn has not challenged that agreement on appeal, and

therefore this issue has been waived.

2. The loan agreement

In its seventh cause of action for breach of contract, Spanish Inn alleges that the

City breached its loan agreement with Spanish Inn by "terminating the Loan Agreement

and failing to disburse loan proceeds to Cross-Complainants after preventing Cross-

Complainants from performing a condition precedent to disbursement . . . ." Spanish Inn

further alleges that, "[as] a direct and proximate result of City's conduct and breach of its

agreements . . . Cross-Complainants . . . were unable to pay all of their subcontractors and

19 material suppliers, unable to complete construction of the SPANISH INN project, and

ultimately lost the project . . . ."

As we have discussed, ante, where a cause of action is based upon a written

contract, "the terms must be set out verbatim in the body of the complaint or a copy of the

written agreement must be attached and incorporated by reference." (Harris v. Rudin,

Richman & Appel, supra, 74 Cal.App.4th at p. 307.) Spanish Inn's failure to do so dooms

its breach of contract claim against the City.

Moreover, the City's obligation to make loan disbursements under its loan

agreement with Spanish Inn arose only upon Spanish Inn's performance of several

conditions, including Spanish Inn's completion of the project. Spanish Inn's own

allegations in the cross-complaint demonstrate it had no financial capacity to complete

the project because of its dispute with Nara Bank over funding obligations. It was

Spanish Inn's difficulty with Nara Bank in obtaining ongoing progress payments which

caused the failure to meet the condition precedent of obtaining a certificate of occupancy

by the loan agreement's deadline of May 6, 2011. Thus, Spanish Inn failed to allege a

required element of its breach of contract cause of action: that the City's actions caused

the damages Spanish Inn allegedly suffered.

Moreover, because Spanish Inn cannot state a cause of action for breach of

contract, its cause of action against the City for breach of the covenant of good faith and

fair dealing fails as well.

20

DISPOSITION

The judgment is affirmed. Cross-defendants shall recover their costs on appeal.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

21