Tipton

MEMORANDUM *

Ken Tipton appeals the district court’s grant of summary judgment in favor of Internet Entertainment Group, Inc. and Seth Warshavsky (IEG). As triable issues of fact exist, we reverse.

I

IEG argues that there was no meeting of the minds because IEG believed that the primary content of the site involved two teenage virgins engaging in sex for the first time, whereas Tipton knew that this content would not be provided on the site. However, there is no evidence that content of the website was discussed during negotiations or that content rather than, say, number of anticipated hits, was material. IEG’s uncommunicated, subjective beliefs are immaterial. In re Estate of Wilson, 64 Cal.App.3d 786 , 134 Cal.Rptr. 749, 758 (1976). To the extent that the meaning of the term “ourfirsttime.com website” is ambiguous, whether there was a meeting of minds on what IEG agreed to host and Tipton to provide cannot be ascertained except by resort to parol evidence. This presents a factual issue that cannot be resolved on summary judgment.

Nor is IEG’s breach excused as a matter of law by failure of a condition precedent. IEG suggests that it is, because the only reasonable…