For more than seventy-five years, California courts have precluded evidence

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1 California Supreme Court Overrules Pendergrass and Permits Evidence of Promises at Variance with the Terms of a Contract Kathleen Kizer and Donna Parkinson It was never intended that the parol evidence rule should be used as a shield to prevent the proof of fraud. 1 Introduction For more than seventy-five years, California courts have precluded evidence of broken oral promises that contradict the express terms of an integrated contract, in accordance with the California Supreme Court s Great Depressionera decision in Bank of Am. Nat'l Trust and Sav. Ass'n. v. Pendergrass. 2 For example, if during negotiations of a loan restructure a lender promised not to pursue its remedies for a period of time but the restructured loan agreement provided otherwise, evidence of the promise was excluded by the parol evidence rule as interpreted under Pendergrass. 3 Courts and commentators criticized Pendergrass because of its questionable foundation and rationale, principally because it squarely contradicted the statutory exception to the parol evidence rule permitting evidence of fraud and other matters that call into question the very validity of the contract. 4 Recently, the California Supreme Court revisited Pendergrass, analyzed the authorities pro and con, noted its own contrary decisions, and determined that even in 1932, Pendergrass was plainly out of step with established California law. 5 Because it was ill-considered, it should be overruled. 6 The Court s overruling of Pendergrass will likely have a marked impact on business disputes and, in particular, disputes between lenders and borrowers. Any practitioner who has litigated lender liability claims likely viewed Pendergrass as either a powerful weapon to defeat claims on demurrer or summary judgment or as a roadblock that necessitated careful pleading and proof to get around its prohibition. The cases applying Pendergrass reflect questionable distinctions between false promises and misrepresentations of fact, as well as difficulties discerning whether the oral promise was consistent with or contradictory to the written agreement. 7 As the California Supreme Court noted, the California experience demonstrates that even where a restrictive rule is adopted, many devices will develop to avoid its impact. 8 This article will explain the parole evidence rule, the fraud exception, the Pendergrass limitation, and the decision overruling Pendergrass. It will conclude with an exploration of the potential effects of the Supreme Court s recent decision in Riverisland Cold Storage, Inc. v Fresno-Madera Prod. Credit Ass'n. Kathleen Kizer Kathleen S. Kizer is an attorney with DLA Piper LLP (US) in San Francisco, where she litigates complex commercial disputes in state and federal courts and in arbitration. Ms. Kizer is a graduate of the University of California, Hastings College of the Law, and earned a Bachelor s degree, magna cum laude from Georgetown University, and a Ph.D. in English Literature from Emory University. Donna Parkinson Donna Parkinson is the managing partner of Parkinson Phinney where she focuses on complex bankruptcy and commercial insolvency law issues. She served as Chair of the Business Law Section of the California State Bar ( ) and as Chair of the Insolvency Law Committee, and has been an adjunct professor at the University of the Pacific's McGeorge School of Law teaching bankruptcy law. While cases previously hinged on whether a party to a contract made a false promise in variance to the contract, future cases will likely focus on whether the promisor intended to perform or whether the complaining party s reliance on a false promise was justified. When a promise contradicts the express terms of the contract, proving justifiable reliance may prove to be an uphill battle. 9 Likewise, when a plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury. 10 California s Parol Evidence Rule Codified in Code of Civil Procedure section 1856 and Civil Code section 1625, the parol evidence rule has long been a fixture of California law. 11 The rule permits extrinsic evidence to explain the meaning of a contract only if the evidence presented is relevant to prove a meaning to which the language is reasonably susceptible. 12 Expressed as a rule of prohibition, the parol evidence rule bars extrinsic evidence of prior or contemporaneous negotiations or agreements that alter or add to the terms of an integrated written agreement. 13 The State Bar of California Business Law News 17

2 California Supreme Court Overrules Pendergrass [The parol evidence rule] is not merely a rule of evidence excluding pre-contractual discussions for lack of credibility or reliability. It is a rule of substantive law making the integrated written agreement of the parties their exclusive and binding contract no matter how persuasive the evidence of additional oral understandings. Such evidence is legally irrelevant and cannot support a judgment. 14 The rule assumes the written evidence of the contract is more accurate than parties memories, and it seeks to prevent the fact-finder from being misled. 15 The purpose of the rule is to ensure that the parties final understanding, deliberately expressed in writing, is not subject to change. 16 The parol evidence rule applies only to integrated written contracts. Thus, before applying the rule, a court must determine whether the written contract constitutes the complete and final expression of the parties agreement. 17 The crucial issue is whether the parties intended the written instrument to serve as the exclusive embodiment of their agreement. 18 While the inclusion of an integration or merger clause strongly supports the argument that an agreement is integrated, a court might consider other factors, such as whether the alleged oral agreement is consistent with the written agreement, whether the alleged oral agreement is one that might naturally have been made as a separate agreement, and whether evidence of the alleged oral agreement would be likely to mislead the trier of fact. 19 As Codified, the Parol Evidence Rule Does Not Bar Evidence Challenging the Validity of an Agreement When a party challenges the validity of an agreement, the parol evidence rule does not apply. 20 The California Supreme Court explained that this broad exception... rests on the principle that the parol evidence rule, intended to protect the terms of a valid written contract, should not bar evidence challenging the validity of the agreement itself. 21 Accordingly, courts permit evidence that a contract is void or voidable due to mistake, fraud, duress, undue influence, illegality, alteration, lack of consideration, or another invalidating cause. 22 Because fraud challenges the validity of the contract, the parol evidence rule should not bar evidence of fraud except that for more than seventy-five years after Pendergrass, it did if the fraud consisted of promissory fraud rather than factual fraud, i.e., a promise made without intent to perform rather than misrepresentation of facts. The fraud exception to the parol evidence rule has been in force as long as the rule itself. 23 Before Pendergrass, the fraud exception was considered without limitation even in cases alleging promissory fraud, i.e., an oral promise at variance with the promises in the written agreement. 24 For example, in 1898, the California Supreme Court explained: The [parol evidence] rule cannot be avoided by showing that the promise outside the writing has been broken.... But a promise made without any intention of performing it is one of the forms of actual fraud (Civ. Code, 1572); and cases are not infrequent where relief against a contract reduced to writing has been granted on the ground that its execution was procured by means of oral promises fraudulent in the particular mentioned, however variant from the terms of the written engagement into which they were the means of inveigling the party. 25 One commentator identified multiple species of fraud in connection with the formation of an agreement and noted the incongruity of singling out promissory fraud as somehow different from other types of fraud, particularly since the definition of fraud in Civil Code section 1572(4) expressly includes a promise made without any intention of performing it as one of the species of fraud. 26 California distinguishes between fraud in the inducement when a party is induced by misrepresentations to enter into a contract and fraud in the execution or inception when a party is ignorant of what she is signing because of the other party s misrepresentations. 27 With fraud in the inducement, a contract has been formed through mutual assent, but it is voidable and thus subject to rescission because the party was induced to enter into the agreement by fraud. In contrast, a contract formed through fraud in the execution is void because mutual assent is completely lacking. But under Pendergrass, fraud in the inducement could not be proved unless the party was induced by misrepresentations of fact rather than false promises inconsistent with the contract. The Pendergrass Limitation to the Fraud Exception The general facts in Pendergrass are similar to Riverisland in that both consider promises allegedly made in the context of restructuring a troubled loan. In Pendergrass, after the borrower fell behind on payments on a loan, the parties executed new loan agreements, including a new promissory note that included additional collateral and was payable on demand. The borrower alleged the lender promised not to enforce the note but instead allow the borrower to operate its ranch for the ensuing year and wait for payment from the cash flow from operations. Only a short time after executing the 18 Business Law News The State Bar of California

3 restructured loan agreements, however, the lender seized the collateral and sued to enforce the note. 28 At the end of the borrower s opening statement, the trial court directed judgment for the lender, and the borrower appealed. The court of appeal ordered a new trial because of the apparent violation of the one form of action rule. In affirming the court of appeal s decision, the California Supreme Court opined that evidence of the lender s promises prior to the execution of the new loan documents was barred by the parol evidence rule because the alleged promise is in direct contravention of the unconditional promise contained in the note to pay the money on demand. 29 The supreme court explained: Our conception of the rule which permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing. 30 Thus began the rule excluding evidence of promises that contradict the promises in an integrated written agreement, even if a promise was made without intent of performing it. In reaching its conclusion, the supreme court relied on an 1857 Virginia case, Towner v. Lucas Exr., which stated: It is reasoning in a circle, to argue that fraud is made out, when it is shown by oral testimony that the obligee contemporaneously with the execution of a bond, promised not to enforce it. Such a principle would nullify the rule: for conceding that such an agreement is proved, or any other contradicting the written instrument, the party seeking to enforce the written agreement according to its terms, would always be guilty of fraud. 31 In revisiting the issue in Riverisland, the California Supreme Court determined that the Virginia case did not quite support Pendergrass conclusion because the debtor in Towner alleged neither fraud nor a promise without intent to perform. While dicta in Towner provides some support for the Pendergrass rule, the Towner court appeared to be principally concerned with the consequences of a rule that mere proof of nonperformance of an oral promise at odds with the writing would establish fraud. 32 The California Supreme Court s Decision in Riverisland Overturns Pendergrass Riverisland also concerned promises allegedly made in the context of a loan restructuring. After the borrowers fell behind The State Bar of California Business Law News California Supreme Court Overrules Pendergrass on loan payments to the credit association, the parties agreed to restructure the debt. 33 In a written contract, the credit association agreed to forbear from taking any enforcement actions if the borrowers made specified payments. As consideration for the modification, the borrowers pledged eight parcels of real property as additional collateral. When the borrowers did not make the required payments, the credit association commenced foreclosure by recording a notice of default. The borrowers ultimately repaid the loan, and the credit association dismissed its foreclosure proceedings. 34 The borrowers then filed an action against the credit association, seeking among other things damages for fraud and negligent misrepresentation. 35 The borrowers alleged the credit association s vice president told them a few weeks before they signed the written agreement that the credit association would extend the loan and forbear from pursuing its remedies for two years in exchange for additional collateral of two parcels of property. The borrowers also alleged the vice president made these same assurances at the time they signed the loan modification agreement. These promises, however, contradicted the terms of the written agreement, which provided for a threemonth forbearance period (not two years), and additional collateral of eight, not two, parcels. The borrowers were unaware the written agreement contradicted the alleged oral promises because they did not read it before signing at the locations tabbed for signature. 36 The trial court granted summary judgment to the credit association, excluding the borrowers evidence in reliance on Pendergrass. 37 The court of appeal reversed, characterizing the alleged misrepresentations as factual misrepresentations regarding the contents of the written agreement and thus not barred by Pendergrass. 38 The credit association appealed, and the California Supreme Court took the opportunity to revisit the rule announced in Pendergrass. The supreme court found multiple reasons to overturn Pendergrass. For example, it was unsupported by the statute codifying the parol evidence rule and the fraud exception, and is contrary to the Restatements, most treatises, and the majority of our sister-state jurisdictions. 39 Moreover, it is difficult to apply and has resulted in very troublesome distinctions between false promises and misrepresentations of fact, as evidenced by the court of appeals characterization of the promise in Riverisland as a misrepresentation of fact about the content of the agreement. 40 It also provides a potential shield for fraudulent conduct. 41 The California legislature failed to address the Pendergrass limitation 19

4 California Supreme Court Overrules Pendergrass when it revised the parole evidence rule in Finally, the limitation was an unjustified departure from California precedent in 1932, and it misconstrued the authorities on which it relied. 43 Even the California Supreme Court disregarded Pendergrass a mere two years later. 44 The court concluded, The fraud exception has been part of the parol evidence rule since the earliest days of our jurisprudence, and the Pendergrass opinion did not justify the abridgment it imposed. For these reasons, we overrule Pendergrass and its progeny Now that Pendergrass is no longer the law in California, parties need not strain to characterize a false promise as a misrepresentation of fact, or vice versa, to either avoid or take advantage of the Pendergrass limitation. Potential Impact of Riverisland on Lender Liability Cases Courts and commentators have characterized the Pendergrass limitation as necessary to prevent excessive resort to tort principles in business disputes governed by contract. 46 [I]f loosely construed, the concept of promissory fraud may encourage attempts to convert contractual disputes into litigation over alleged fraud. To be sure, fraud requires proof of the additional elements of intent and reliance. But these can so easily be inferred from any broken promise that promissory fraud may in fact open the door to attempts to enforce oral promises through tort causes of action under the guise of a promise made without intention to perform. 47 The California Supreme Court, however, suggested that overruling Pendergrass should not open the floodgates to evidence of oral promises that contradict written promises because a party seeking to introduce such evidence must still prove each of the elements of promissory fraud. 48 [W]e stress that the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance. We note also that promissory fraud, like all forms of fraud, requires a showing of justifiable reliance on the defendant s misrepresentation. 49 Accordingly, in cases when a party seeks to introduce evidence of broken oral promises, the fight will likely turn to the issues of intent and justifiable reliance. Reasonable reliance may be difficult to prove when a contract expressly contradicts the purported oral promise, particularly as many California cases find that a party signing a contract is deemed to have constructive knowledge of its terms. 50 The California Supreme Court has held that a party cannot be excused from its own negligence in failing to read a contract before signing it, unless it did not have a reasonable opportunity to read the contract. 51 California law, like the Restatement, requires that the plaintiff, in failing to acquaint himself or herself with the contents of a written agreement before signing it, not have acted in an objectively unreasonable manner. One party s misrepresentations as to the nature or character of the writing do not negate the other party s apparent manifestation of assent, if the second party had reasonable opportunity to know of the character or essential terms of the proposed contract. If a party, with such reasonable opportunity, fails to learn the nature of the document he or she signs, such negligence precludes a finding the contract is void for fraud in the execution. 52 To avoid a case like Riverisland, lenders must give their borrowers sufficient opportunity to read the contracts they sign. Parties alleging reasonable reliance on a purported oral promise will also have to explain why the oral promise was not included in the integrated contract. 53 For example, in a 1960 case, the individual guarantor of a corporation s loan alleged the bank promised her that her personal assets, including her residence, would not be affected by the guaranty. 54 She alleged she would not have signed the guaranty had she known the bank could foreclose on her home. The court struck her testimony regarding the alleged promise because it contradicted the terms of the guaranty. After Riverisland, the testimony would be allowed, and a jury would likely be left to determine whose testimony is more credible, but the borrower would have to provide a credible alternative explanation for the purpose of the guaranty. Additionally, while Pendergrass enabled defendants to defeat a claim on demurrer by showing how an oral promise contradicted the terms of a written agreement, it now seems likely that cases will proceed beyond the demurrer or even summary judgment stage, because questions of reasonable reliance and intent tend to involve factual disputes. 55 On the other hand, a party pleading fraud in California must do so with particularity. 56 Failure to do so may enable resolution on demurrer more likely. In any event, it cannot be disputed that Riverisland will definitely change the complexity of contract disputes involving allegations of broken oral promises in the future. n Endnotes 1 Ferguson v. Koch, 204 Cal. 342, 347 (1928), quoted in Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass n, 55 Cal.4th 1169, (2013). 20 Business Law News The State Bar of California

5 2 4 Cal.2d 258 (1935) (hereinafter, Pendergrass ). 3 These are the facts, in a nutshell, of Pendergrass. 4 See, e.g., Price v. Wells Fargo Bank, 213 Cal.App.3d 465, (1989), citing Parol Evidence: Admissibility to Show that a Promise was Made Without Intention to Perform It, 38 Cal. L. Rev (1950), and Justin Sweet, Promissory Fraud and the Parol Evidence Rule, 49 Cal. L. Rev (1961) Cal.4th 1169, (2013). (hereinafter, Riverisland ). The California Supreme Court noted it ignored Pendergrass limitation in two decisions postdating Pendergrass: Fleury v. Ramacciotti, 8 Cal.2d 660, (1937), and Stock v. Meek, 35 Cal.2d 809, (1950). 6 See Riversland,at See, e.g., Simmons v. Cal. Inst. of Tech., 34 Cal.2d 264, (1949) (declaring promise not inconsistent with written agreement); Coast Bank v. Holmes, 19 Cal.App.3d 581, (1971) (while evidence of oral promise was not admissible to explain terms of promissory note, it was admissible to show failure of consideration and fraud in the inducement); Continental Airlines, Inc. v. McDonnell Douglas Corp., 216 Cal. App.3d 388, 421 (1989) (distinguishing between false promise and false statement of fact); Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass n, 191 Cal.App.4th 611, 615 (2011) (characterizing evidence as showing misrepresentation of fact regarding the content of written agreement rather than false promise); Pacific State Bank v. Greene, 110 Cal.App.4th 375, (2003) (misrepresentation of content of writing distinguished from false promise). 8 Riverisland, 55 Cal.4th at 1177, quoting Justin Sweet, Promissory Fraud and the Parol Evidence Rule, 49 Cal. L. Rev. 877, 907 (1961). 9 Pacific State Bank, 110 Cal.App.4th at 393 (finding Pendergrass imposes no limit to evidence of misrepresentation of fact and concluding, the particular circumstances of the contract s execution, including the prominent and discernible provisions of the contents of the writing at issue, must make it reasonable for the party claiming fraud to have nonetheless relied on the mischaracterization. This is not an easily met burden of proof, which also prevents this type of evidence from swallowing up the parol evidence rule. ). 10 Riverisland, 55 Cal.4th at 1183, quoting Tenzer v. Superscope, Inc., 39 Cal.3d 18, (1985) (holding claim for fraud not barred even if fraudulent promise is unenforceable under the statute of frauds). 11 See Cal. Code Civ. Proc. 1856; Civ. Code The State Bar of California Business Law News California Supreme Court Overrules Pendergrass 12 Pacific State Bank, 110 Cal.App.4th at 385 (citations omitted). See also Casa Herrera, Inc. v. Beydoun, 32 Cal.4th 336, 343 (2004). 13 Casa Herrera, Inc., 32 Cal.4th at Banco do Brasil, S.A. v. Latian, Inc., 234 Cal.App.3d 973, 1000 (1991), quoting Mariani v. Jackson, 183 Cal.App.3d 695, 701 (1986). See also Casa Herrera, Inc., 32 Cal.4th 336 (holding that the termination of a case by application of the parol evidence rule constitutes a termination on the merits for purposes of a malicious prosecution claim). 15 Banco do Brasil, 234 Cal.App.3d at 1002, discussing Masterson v. Sine, 68 Cal.2d 222, (1968). 16 Riverisland, 55 Cal.4th at Banco do Brasil, 234 Cal.App.3d at Id. 19 Id. at ( the presence of an integration clause will be very persuasive, if not controlling, on this issue ), 1003 (other factors). 20 Cal. Code Civ. Proc. 1856(f). 21 Riverisland, 55 Cal.4th at 1174 (emphasis in original). 22 Id. at 1175, quoting 2 Witkin, Cal. Evidence 97, p. 242 (5th ed. 2012). 23 Id. at 1180 (citing numerous cases as far back as 1888), 1182 ( The fraud exception has been part of the parol evidence rule since the earliest days of our jurisprudence.... ). 24 Id. at Langley v. Rodriguez, 122 Cal. 580, (1898), quoted in Justin Sweet, Promissory Fraud and the Parol Evidence Rule, 49 Cal. L. Rev. 877, 882 (1961), and in Riverisland, 55 Cal.4th at Sweet noted that none of the litigants in Pendergrass brought Langley to the Court s attention. 26 Justin Sweet, Promissory Fraud and the Parol Evidence Rule, 49 Cal. L. Rev. 877, (1961). 27 Duick v. Toyota Motor Sales, U.S.A., Inc., 198 Cal. App.4th 1316, (2011). 28 Pendergrass, 4 Cal.2d at Id. at Id. 31 Id., quoting Towner v. Lucas Exr., 54 Va. (13 Gratt.) 705, 716 (1857). 32 Riverisland, 55 Cal.4th at Id. at Id. at Id. 36 Id. 21

6 California Supreme Court Overrules Pendergrass 37 Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass n, 191 Cal.App.4th 611, 615 (2011). 38 Id. at Riverisland, 55 Cal.4th at See also id. at 1175 ( Despite the unqualified language of section 1856, which broadly permits evidence relevant to the validity of an agreement and specifically allows evidence of fraud, the Pendergrass court decided to impose a limitation on the fraud exception. ). 40 Id. at 1172, See Riverisland Cold Storage, Inc., 191 Cal.App.4th at 625 (characterizing promise of forbearance as a misrepresentation of fact regarding the content of the agreement). 41 Riverisland, 55 Cal.4th at See also id. at 1177 (stating its limitation on evidence of fraud may itself further fraudulent practices ). 42 Id. at (legislature s adoption of California Law Revision Commission s recommendations). 43 Id. at 1181 ( Pendergrass was plainly out of step with established California law. ), 1182 ( Pendergrass also cited a number of California cases. Yet not one of them considered the fraud exception to the parol evidence rule. ). 44 Id. at 1181 ( Interestingly, two years after Pendergrass this court fell back on the old rule in Fleury v. Ramacciotti (1937) 8 Cal.2d 660, 67 P.2d 339, a promissory fraud case. Ramacciotti, a mortgage debtor, claimed he had signed a renewal note without reading it, relying on a false promise that the note included a provision barring a deficiency judgment. (Id. at p. 661, 67 P.2d 339.) The trial court ruled in Ramacciotti s favor. ). 45 Id. at See, e.g., Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 485 (1989). 47 Id. at Riverisland, 55 Cal.4th at Id., citing Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996). One California Court of Appeal also viewed the need to prove the element of reasonable reliance as a protection against abuse in cases where parties seek to introduce parol evidence that contradicts the terms of an integrated agreement. Pacific State Bank v. Greene, 110 Cal.App.4th 375, 393 (2003). 50 See, e.g., Pacific State Bank, 110 Cal.App.4th at 393; Dias v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204, 1216 (E.D. Cal. 2010) (noting California law finding an insured is presumed to have read its insurance policy). 51 Rosenthal v. Great Western Financial Securities Corp., 14 Cal.4th 394 (1996). This is consistent with the Restatement Second of Contracts, section 163, which provides: If a misrepresentation as to the character or essential terms of a proposed contract induces conduct that appears to be a manifestation of assent by one who neither knows nor has a reasonable opportunity to know of the character or essential terms of the proposed contract, his conduct is not effective as a manifestation of assent. Restatement (Second) of Contracts: When a Misrepresentation Prevents Formation of a Contract 163 (1986), cited in Rosenthal, 14 Cal.4th at Rosenthal, 14 Cal.4th at 423, quoting Restatement (Second) of Contracts 163, p. 443 (1986). 53 See Banco Do Brasil, S.A., 234 Cal.App.3d at 1011 ( We cannot leave this discussion without a general comment. We do not share the concern expressed in some circles that parties to a contract in California are not capable of drafting a written instrument which will fully and completely define a particular legal relationship. As we view it, it is the essence of the judicial function to contribute to legal certainty and reasonable predictability in the affairs of our citizens rather than to suggest that such goals are not attainable. Parties to a business or commercial transaction, such as those in this case, should be able to clearly express their intent as to the nature and scope of their legal relationship and then be able to rely on that expression. If, as in this case, they agree that their entire understanding is completely set forth in a particular writing then they are both entitled and required to live with the agreed terms. The courts simply cannot permit clear and unambiguous integrated agreements, such as the one before us, to be rendered meaningless by the oral revisionist claims of a party who, at the end of the game, does not care for the result. ). 54 Bank of Am. Nat l Trust & Sav. Ass n v. Lamb Finance Co., 179 Cal.App.2d 498, (1960). 55 See, e.g., Sapin v. Security First Natl. Bank, 243 Cal. App.2d 201 (1966) (affirming judgment on the pleadings where plaintiff alleged an oral promise in contradiction to written agreement and thus failed to state a cause of action); Oyefule v. Countrywide Home Loans, Inc., No. B218962, 2010 WL (Nov. 09, 2010) (demurrer sustained because oral promise contradicted express terms of contract). 56 Committee On Children s Television, Inc. v. General Foods Corp., 35 Cal.3d 197, 216 (1983) (plaintiff pleading fraud must state specific facts supporting each element). 22 Business Law News The State Bar of California