Superstars, Inc. v. L.S.A. Corp.

Filed 4/23/07 Superstars, Inc. v. L.S.A. Corp. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline A. Connor, Judge. Affirmed.

Bremer, Whyte, Brown & OMeara, Keith G. Bremer, Jeremy S. Johnson and Alison K. Hurley; Stephenson, Worley, et al. and Susan D. White; and Everett L. Skillman for Plaintiff and Appellant.

Turner, Aubert & Friedman, Steven A. Morris and Jonathan M. Deer for Defendant and Respondent.

INTRODUCTION

This appeal contests the trial courts order sustaining without leave to amend the demurrer to a second amended complaint. Although the complaint contained several causes of action, it was predicated upon a claim of breach of a written contract. Because the writing is integrated and its terms directly contradict the complaints allegations, the parol evidence rule compels the conclusion that appellant cannot state any valid cause of action. Therefore, we affirm the trial courts ruling.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Overview

Appellant Superstars, Inc. (Superstars) owns and operates Century 21 franchises. Respondent L.S.A. Corporation, dba Coastline Capital Partners (Coastline) arranges financing for business transactions.

In April 2004, Superstars and Coastline discussed whether Coastline could arrange financing for Superstars to purchase another real estate company, Award, Inc., dba Century 21 Award (Award).

Coastline and Superstars executed an Engagement Letter dated August 26, 2004 reflecting their agreement. The letter recited that Superstars engaged Coastline to act as its exclusive placement agent for a period of 60 calendar days to obtain the required financing. Coastline agreed on a best efforts basis and subject to the satisfactory completion of [its] continuing due diligence to arrange the loan. Superstars agreed to to pay Coastline a cash commission equal to four percent (4.0%), with a minimum of $400,000, of the total amount of the Senior Debt committed to by the Lender, or 5% if Coastline provides Senior Debt with an IRR (Lender Internal Rate of Return) of 12% or less. The letter explains: Nothing herein or by implication will be held to constitute a warranty, guarantee, or promise of success and [Coastline] shall have no liability, in contract or otherwise, for the lack of success in raising the funds contemplated and [Superstars] will no rely in any way on any oral or other representation to the contrary.

The last paragraph of the Engagement Letter recited that it represent[s] the entire agreement between [Superstars] and Coastline with respect to the matters addressed herein and will supersede all previous oral or written agreements or understandings of any nature whatsoever between the parties.

On May 19, 2005, counsel for Coastline wrote to Superstars, stating that Coastline intended to sue Superstars for its commission unless the parties reached a more amicable resolution of the dispute. Attached to the letter was a draft complaint that Coastline intended to file. Less than 10 days later, Superstars commenced the present lawsuit against Coastline. (Coastline has not filed its complaint against Superstars.)

2. Superstars Original Complaint

On May 27, 2005, Superstars filed a complaint against Coastline for declaratory relief. A copy of the August 2004 Engagement Letter was attached to the complaint. Superstars alleged that in September 2004, Coastline introduced it to a potential lender: Nogales Investors Management, LLC (Nogales). Superstars and Nogales negotiated for two months but were unable to reach an agreement. Thereafter, Award offered to finance the purchase with owner carry-back financing and Superstars was able to close the purchase. Superstars alleged, that notwithstanding these events, Coastline claimed that it had fulfilled the terms of the Engagement Letter and therefore had demanded full payment of its commission. Superstars alleged that it had no liability to Coastline for a commission.

Superstars, claiming that an actual controversy had arisen between it and Coastline, sought a judicial declaration about the parties respective rights and duties under the Engagement Letter.

3. Superstars First Amended Complaint

In July 2005, Superstars filed its first amended complaint. This pleading also attached the August 2004 Engagement Letter. It alleged causes of action for breach of fiduciary duty, breach of contract, and declaratory relief.

The cause of action for breach of fiduciary duty alleged that Coastline, as Superstars exclusive placement agent, owed Superstars a fiduciary duty to provide it with diligent and faithful service and to deal fairly with it. Coastline breached its fiduciary duty by promising to provide [Superstars] with a third-party lender that would be able to meet [Superstars] required financial terms, even though [Coastline] did not have experience or justification to make such a claim. [Coastline] knew that [it] could not promise to provide the desired financing, yet made these representations to [Superstars] in the off chance that [Coastline] would be able to set up appropriate third-party financing and, as such, collect a commission from [Superstars]. . . . [Coastline] knew that [Superstars] would be able to fund the purchase of Award without the third-party financing if necessary, yet, in hopes of securing a large commission, promised [Superstars] that it would locate a lender.

Superstars cause of action for breach of contract built on the above allegations to claim that Coastlines breach of its fiduciary duty also constituted a breach of its contract with Superstars. For example, Superstars alleged that Coastlines failure to consider [Superstars] interests constituted a breach of contract.

Superstars alleged that it had been damaged by Coastlines breach of fiduciary duty and breach of contract because it had spent approximately $400,000 in expert fees and costs for the due diligence necessary to secure the inappropriately promised financing.

The cause of action for declaratory relief sought a declaration that Coastline had breached the Engagement Letter by failing to perform and that Superstars owed Coastline nothing.

Coastline filed a demurrer to the first amended complaint, raising various arguments. As is relevant to this appeal, Coastline, citing the parol evidence rule, noted that that [t]o the degree that the complaint is intended to imply some separate promise to obtain financing, such claim is, as a matter of law, not permissible. One may not seek to prove the existence of promises which contradict the express terms of an integrated writing. Superstars opposition to the demurrer did not respond to Coastlines reliance on the parol evidence rule.

The trial court ruled:

[The] demurrer to [Superstars] first amended complaint is SUSTAINED in its entirety with 20 days leave to amend. [Citation.] The Court finds that [Coastline was] not under an obligation to provide [Superstars] with a lender, but rather, to employ their best efforts to obtain one. Moreover, [Superstars] fails to allege any facts which demonstrate that [Coastline] made false representations to [it] in the hopes of obtaining a large commission. In addition, the Court observes that even if [Coastline] acted as [Superstars] alleges, such conduct would not support a cause of action for either breach of contract or breach of fiduciary duty. Finally, although [Superstars] has a statutory right to bring a cause of action for declaratory relief, [Superstars] claim is predicated upon the breach of fiduciary duty and breach of contract causes of action. As such, [Superstars] claim for declaratory relief must also be dismissed.

4. Superstars Second Amended Complaint

In December 2005, Superstars filed its second amended complaint. It alleged causes of action for declaratory relief, breach of fiduciary duty, breach of the covenant of good faith of fair dealing, intentional misrepresentation, and negligent misrepresentation. The pleading incorporated by reference the August 2004 Engagement Letter.

Although Coastlines (successful) demurrer to Superstars first amended complaint had raised the parol evidence rule, Superstars second amended complaint failed to address that point. That is, Superstars never alleged that it had interpreted Coastlines promise to use its best efforts as a guarantee of performance. Instead, Superstars simply continued to allege that Coastline promised to find a suitable lender without acknowledging the conflict inherent between that (alleged) promise and Coastlines contractual promise to use best efforts to find a lender. In particular, while the new pleading included an extremely detailed recitation of the four-month negotiations leading up to the execution of the August 2004 Engagement Letter, the pleading never addressed the meaning of the phrase best efforts.

Instead, Superstars alleged that as a result of the on-going negotiations, Coastline had become intimately knowledgeable of [Superstars] finances and . . . needs and expectations concerning third party funding of [its] potential purchase of Award. As such, Coastline was aware of [Superstars] independent ability to self fund the purchase of Award if necessary and, as a result, [Superstars] desire to only arrange third party financing with a low IRR and minimal equity interest in the company. Superstars alleged that it signed the Engagement Letter because of Coastlines knowledge of its finances and needs and because Coastline expressly promisedwithin the Engagement Letter to provide [Superstars] with a third party lender that would meet [its] requirements concerning the funding and purchase of Award. (Italics added.) Superstars never identified where in the Engagement Letter this promise could be found.

The cause of action for declaratory relief sought a determination that the Engagement Letter did not obligate Superstars to pay Coastline any commission as a result of its self funding of the purchase of Award.

The cause of action for breach of fiduciary duty alleged (as had the previous pleadings) that Coastline had promised to provide Superstars with a lender even though Coastline did not have any basis to make such a promise.

The cause of action for breach of the implied covenant of good faith and fair dealing alleged that Coastlines continual representations that it would find a suitable third party lender were unreasonable and not made in good faith, but rather [were] made with selfish intentions based on the off chance that Coastline would find a lender and be able to collect a commission from [Superstars].

The cause of action for fraud alleged that Coastline intentionally misrepresented that it would be able to acquire third-party financing that would meet [Superstars] expectations and that it made these representations to deceive and induce Superstars into signing the Engagement Letter. In addition, Superstars alleged that a month after signing the Engagement Letter, Coastline told Superstars that it had prior experience with Nogales and that Coastline was confident that it would obtain a loan with Nogales on Superstars terms.

The cause of action for negligent misrepresentation alleged that Coastline made false statements of material fact without grounds for such beliefs by promising [Superstars] that [it] would be able to obtain third party lending on the terms Superstars desired.

Coastline filed a demurrer to the second amended complaint. In large part, Coastline relied upon the parol evidence rule. Coastline contended that the last paragraph of the Engagement Letter constituted an integration clause; that the contract obligated Coastline only to use its best efforts to obtain financing; and that Superstars allegations that Coastline had promised it would find financing to meet Superstars needs constituted an improper attempt to contradict the express terms of the Engagement Letter.

Superstars opposition to the demurrer argued, among other things, that the terms of the Engagement Letter were ambiguous so that the allegations in its second amended complaint did not contradict the letters express terms but, instead, explained Superstars understanding of the agreement. Superstars urged that the trial court must accept [its] allegations [that] . . . the written agreement is ambiguous and that parol evidence may be introduced at trial to explain those terms.^[1](Boldface in original.) However, as noted above, Superstars second amended complaint did not allege or identify any ambiguity in the Engagement Letter.

The trial court ruled:

[The] demurrer to second amended complaint is SUSTAINED in its entirety without leave to amend. [Citation.] Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action, i.e., if the complaint pleads facts which would entitle the Plaintiff to relief. [Citations.] The face of the pleading includes attachments and incorporations by reference. [Citation.]

Here, each of the five causes of action rely on the allegation that [Coastline] promised [Superstars] that it would be able to provide a third party lender for [Superstars] purchase of Award, Inc. However, the Engagement Letter, attached as Exhibit A to the second amended complaint, expressly provides that [Coastline] was to act on a best efforts basis in its attempts to provide the necessary lender. It is well settled that facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. [Citations.] Accordingly [Superstars] fails to assert facts sufficient to constitute a cause of action and the requested relief must be afforded.

While there is some debate as to the use of the phrase best efforts basis, the Court finds that any attempt by [Superstars] to contradict its plain meaning will be an exercise in futility. The parol evidence rule, with certain exceptions, prohibits the introduction of any extrinsic evidence (oral or written) to vary or add to the terms of an integrated written instrument. [Citation.] Here, it is not contested that the Engagement Letter attached to the second amended complaint represents an integration. Although [Superstars] suggests in its opposition that it will be able to submit extrinsic evidence which explains the intended meaning of best efforts basis, such evidence is precluded by the parol evidence rule. [Citation.] Likewise, any evidence that [Coastline] promised [Superstars] that it would find a lender is also inadmissible. [Citation.]

This appeal by Superstars follows.

DISCUSSION

The principles governing appellate review of an order sustaining a demurrer without leave to amend are well-settled. [W]e assume the truth of the allegations of the complaint and determine whether they state a cause of action and, if not, whether the defect may be cured by amendment. [Citation.] We will affirm the [trial] courts ruling if it is correct under any legal theory raised in the demurrer, whether the trial court relied on the theory or not. [Citation.] The denial of leave to amend we review for abuse of discretion. [Citation.] (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 946.) However, the rule that we assume that the complaints allegations are true does not apply to allegations contradicted by the exhibits to the complaint . . . . [Citation.] (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.)

In this case, the core of Superstars complaint, regardless of the legal theory advanced, is the allegation that Coastline promised Superstars that Coastline would find a lender that met Superstars requirements. That allegation is flatly contradicted by the August 2004 Engagement Letter attached to the pleading. The Engagement Letter provided only that Coastline would make its best efforts to obtain the loan. Coastline made no promise that it would, in fact, find a lender. In fact, the Engagement Letter explicitly stated Coastline was not warranting, guaranteeing or promising to find a lender for Superstars. Consequently, in reviewing the trial courts ruling, we must ignore Superstars allegation that Coastline promised to locate a lender. If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. [Citation.] (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

To avoid the force of this conclusion, Superstars argues that the term best efforts is ambiguous so that extrinsic evidence must be examined at a trial to discern [its] meaning. We are not persuaded.

The parol evidence rule, as codified, provides: Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. (Code Civ. Proc.,  1856, subd. (a).) As explained by Justice Traynor, [w]hen the parties to a written contract have agreed to it as an integrationa complete and final embodiment of the terms of an agreementparol evidence cannot be used to add to or vary its terms. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 953 (Founding Members), quoting from Masterson v. Sine (1968) 68 Cal.2d 222, 225.)

The last paragraph of the August 2004 Engagement Letter contains a classic integration clause. It recites that the letter represent[s] the entire agreement between [Superstars] and Coastline with respect to the matters addressed herein and will supersede all previous oral or written agreements or understandings of any nature whatsoever between the parties. This language is almost identical to the contractual provision analyzed in Banco Do Brasil, S.A. v. Latian, Inc. (1991) 234 Cal.App.3d 973. There, the parties executed a contract containing the following clause: This Agreement together with exhibits attached hereto, embodies the entire agreement and understanding among the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. (Id. at pp. 996-997, fn. omitted.) The appellate court held: It is difficult to imagine how the parties could have more clearly expressed their intent to make the written instrument a full and complete expression of their agreement. (Id. at p. 1003.) The same analysis applies to this case. The last paragraph of the Engagement Letter leaves no doubt that the parties intended the document to be a complete expression of their understanding.^[2] (Ibid.)

However, notwithstanding the presence of an integration clause, extrinsic evidence can sometimes be offered. Even if a contract appears unambiguous on its face, a latent ambiguity may be exposed by extrinsic evidence which reveals more than one possible meaning to which the language of the contract is yet reasonably susceptible. [Citation.] The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citation.] (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 391, italics added (Dore).)

An ambiguity arises when language is reasonably susceptible of more than one application to material facts. There cannot be an ambiguity per se, i.e. an ambiguity unrelated to an application. [Citations.] (Dore, supra, 39 Cal.4th at p. 391, italics added.) That is, language which might be considered ambiguous as applied to some circumstances is not necessarily ambiguous per se. (Herzog v. National American Ins. Co. (1970) 2 Cal.3d 192, 199, fn. 5.) This means that we determine whether the phrase best efforts is ambiguous in the context of this lawsuit: an action predicated upon Superstars claim that Coastline breached the Engagement Letter by failing to find a lender. Hence, the only issue is whether a promise to use best efforts can reasonably be interpreted as a guarantee to perform. We therefore do not examine, by way of example, whether best efforts would be an ambiguous term had Superstars sued claiming that Coastline had breached the Engagement Letter because it had failed to employ its best efforts to find a lender.

Significantly, Superstars second amended complaint failed to allege either that the promise to use best efforts was ambiguous (e.g., a phrase reasonably susceptible to more than one meaning) or that it (Superstars) interpreted the promise to be a guarantee of performance. Instead, Superstars, in its opposition to Coastlines demurrer, simply argued that it should be given the opportunity to introduce evidence that it (Superstars) understood the phrase to mean that Coastline promised to find a lender. (See fn. 1, ante.) That approach was insufficient. If a party proceeds on the theory that a contracts terms are ambiguous, then it must allege in [the] complaint the meaning which the party ascribes to that contract. [Citations.] (Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 817; see also Hayter Trucking, Inc.v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 18 [if the instrument is ambiguous, the pleader must allege the meaning he or she ascribes to it] (Hayter) and Beck v. American Health Group Internat., Inc. (1989) 211 Cal.App.3d 1555, 1561 [The plaintiff must allege[] the meaning which he ascribes to an ambiguous writing attached to and incorporated into the complaint].) Here, Superstars failed to make the required allegations. Consequently, we will construe the language of the contract on its face to determine whether, as a matter of law, the contract is reasonably subject to a construction sufficient to sustain a cause of action for breach. (Hayter, supra, 18 Cal.App.4th at p. 18, italics added.)

In that regard, the governing principle is that [w]hen a dispute arises over the meaning of contract language, the first question to be decided is whether the language is reasonably susceptible to the interpretation urged by the party. If it is not, the case is over. [Citation.] (Dore, supra, 39 Cal.4th at p. 393.) Further, California recognizes the objective theory of contracts [citation], under which [i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation [citation]. The parties undisclosed intent or understanding is irrelevant to contract interpretation. (Founding Members, supra, 109 Cal.App.4th at p. 956.)

Superstars has failed to establish that a promise to use best efforts can reasonably be interpreted to mean a guarantee of performance. In fact, Superstars opening brief indicates that its interpretation is not reasonable. For example, Superstars acknowledges that [t]he duty of best efforts has diligence as its essence and is more exacting than the usual contractual duty of good faith. (National Data Payment Systems v. Meridian Bank (3d Cir. 2000) 212 F.3d 849, 854.) In addition, Superstars notes that one treatise has explained: Best efforts is a more rigorous standard than good faith. (2 Corbin on Contracts (rev. ed. 1995)  6.5, p. 246.) However, nothing in these definitions suggests that a party could reasonably believe that a promise to employ best efforts was a guarantee that a particular result would be obtained. As a matter of simple logic, (Dore, supra, 39 Cal.4th at p. 391) a best efforts promise communicates that the promisor cannot guarantee performance because it promises only to use its best efforts to obtain a specified goal.

In addition, any claim that the best efforts promise in this contract was a promise to obtain a lender would contradict the latter provision in the Engagement Letter that Coastline was making no promise of success and would incur no liability for the lack of success in raising the funds contemplated. Superstars has never addressed this point.

Moreover, Superstars approach misapprehends the nature of the parol evidence rule. The rule is not one of evidence, but rather one of substantive law. (2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence,  62, pp. 182-183.) It declares that a writing that incorporates all terms of an agreement is, as a matter of law, the contract of the parties. Extrinsic evidence is inadmissible not because of usual evidentiary concerns such as probative value or reliability. It is inadmissible because by law the writing is the contract; any contradictory agreement that might be manifested by the extrinsic evidence is unenforceable. (See Estate of Gaines (1940) 15 Cal.2d 255, 264.)

In sum, the parol evidence rule bars Superstars from arguing that best efforts was a guarantee of performance. Hence, the trial court properly sustained the demurrer to the causes of action for breach of fiduciary duty and breach of the implied covenant of good faith and fair dealing. The predicate of both theories was the claim that Coastline had promised to find a lender for Superstars. As explained above, that allegation was directly contradicted by the terms of Engagement Letter which obligated Coastline only to use its best efforts. As a consequence, Superstars allegations are insufficient as a matter of law.

To a certain extent, Superstars advances, for the first time on appeal, the argument that Coastlines breach was, instead, its failure to use its best efforts to obtain financing for Superstars. However,

that is not what Superstars second amended complaint alleged. It alleged the failure to perform a promise to obtain financing. In view of the fact that Superstars has not requested, either in the trial court or on appeal, for leave to file a third amended complaint to present allegations that Coastline failed to use its best efforts, we need not discuss or decide whether Superstars would be entitled to amend its complaint to reflect that theory.

As for the causes of action for fraud and negligent misrepresentation, the trial court properly sustained the demurrer without leave to amend. The core of those theories was the claim that Coastline made, either intentionally or negligently, a false promise to Superstars that Coastline would obtain financing. However, Coastline made no such promise in the Engagement Letter. As explained above, any effort by Superstars to prove such a promise runs afoul of the parol evidence rule. When, as here, the claimed fraud consists of a false promise with respect to a matter covered by the agreement itself, the [extrinsic] evidence [of fraud] would contradict the terms of the agreement, in direct contradiction of the [parol evidence] rule. Such proof is not permitted. [Citations.] (Green v. Del-Camp Investments, Inc. (1961) 193 Cal.App.2d 479, 482.)

Lastly, we turn to Superstars cause of action for declaratory relief which sought nothing more than an advisory opinion that in the event Coastline sues it, Superstars is not liable. While Superstars other causes of action sought damages based upon Coastlines alleged breach of the Engagement Letter, the declaratory relief cause of action focused on a claim that had not yet materialized: a lawsuit by Coastline alleging that Superstars had breached the Engagement Letter by not paying Coastline a commission. Although shortly before Superstars filed this action Coastline had indicated it would sue Superstars for breach of contract, Coastline has not filed that lawsuit. In this situation, declaratory relief is not available. The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject. [Citation.] The court may sustain a demurrer on the ground that the complaint fails to allege an actual or present controversy, or that it is not justiciable. The court also may sustain a demurrer without leave to amend if it determines that a judicial declaration is not necessary or proper at the time under all the circumstances. [Citations.] (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545, italics in original.)

One treatise explains the principle as follows. [T]here is no basis for declaratory relief where only past wrongs are involved. Hence, where there is an accrued cause of action for an actual breach of contract or other wrongful act, declaratory relief may be denied. [Citations.] (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading,  823, p. 279.) Here, whatever rights Coastline may have to sue Superstars for breach of contract have already accrued.^[3] But because Coastline has not sued Superstars, there is no justiciable controversy between the parties on that question. If and when Coastline files such an action, Superstars liability for breach of contract will be determined, but not before.^[4]The trial court therefore properly sustained the demurrer without leave to amend to the cause of action for declaratory relief. (See Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 407-408 [declaratory relief in breach of contract action properly denied because cause of action had accrued and there was no actual controversy between the parties concerning any future rights].)

DISPOSITION

The judgment (order of dismissal) is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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^[1] Superstars also argued that whether its allegations contradict the terms of a written contract or explain them is an issue for another day and that its interpretation of that agreement must be accepted as correct in testing the sufficiency of the complaint. (Boldface in original.) Superstars also stated that it will be able to present evidence at the time of trial demonstrating that [its] understanding of terms of the Engagement Letter as pled in the Complaint does not contradict the Agreements terms, but rather explains them. (Boldface in original.) Superstars never identified what that evidence would be.

^[2] In its reply brief, Superstars argues for the first time that Coastline has waived application of the parol evidence rule because Coastlines proposed lawsuit would have proceeded on a theory contradicting the terms of the Engagement Letter (e.g., Coastline was entitled to a commission even if Superstars engaged in seller-financing). This argument deserves little attention. For one thing, Coastline has not filed any lawsuit against Superstars. And, even if one were filed, we fail to see how, on this record, it would constitute a waiver of application of the parol evidence rule to this action.

^[3] We express no opinion on the merits of any lawsuit Coastline may bring against Superstars.

^[4] Without citation to any authority, Superstars urges that declaratory relief is appropriate because, otherwise, the threat of a lawsuit [will] hang over [its] head for several years since Coastline has technically . . . the right to file a complaint against Superstars until November 16, 2008 . . . and could conceivably wait until November 16, 2011 to serve that complaint. We decline to address this argument because Superstars has failed to provide any authority to support it. (See, e.g., Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [deficient presentation of a contention constitutes a forfeiture or abandonment of the claim].)