Lisitsa Law Corporation v. United National Insurance Company, an unknown business entity

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISITSA LAW CORPORATION,
Plaintiff - Appellant,
v.
UNITED NATIONAL INSURANCE
COMPANY, an unknown business entity,
Defendant - Appellee.
No. 11-55700
D.C. No. 2:09-cv-07282-ODW-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Submitted January 7, 2013**
Pasadena, California
Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit Judges.
Lisitsa Law Corporation (Lisitsa) appeals the district court’s order granting
summary judgment on behalf of United National Insurance Company (United
FILED
JAN 15 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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National). Because the parties are familiar with the factual and procedural history
of this case, we repeat only those facts necessary to resolve the issues raised on
appeal. We affirm.
Lisitsa contends that United National’s January 28 letter was an offer, which
Lisitsa accepted by its own letter of January 30. Accordingly, Lisitsa claims that
United National is contractually obligated to pay Lisitsa for its services defending
the Enciso action. Lisitsa is mistaken.
In order to form a contract under California law, “the terms proposed in an
offer must be met exactly, precisely, and unequivocally.” Siegel v. Warner Bros.
Entm’t, Inc., 542 F. Supp. 2d 1098, 1137 (C.D. Cal. 2008) (citing Panagotacos v.
Bank of America, 60 Cal. App. 4th 851, 855-56 (Cal. Ct. App. 1998)). “A
qualified acceptance constitutes a rejection terminating the original offer.” Id.
(citing Panagotacos, 60 Cal. App. 4th at 855–56; Glende Motor Co. v. Superior
Court, 159 Cal. App. 3d 389, 396 (Cal. Ct. App. 1984)); see also Cal. Civ. Code §
1585 (“An acceptance must be absolute and unqualified . . . . A qualified
acceptance is a new proposal.”).
Here, no contract formed because Lisitsa’s purported acceptance was
conditional. For instance, Lisitsa “accepted” the second of United National’s eight
proposals “on the condition that your client and the court enter into a stipulation.”

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(Emphasis added.) The district court correctly determined that “[t]hese conditions
and qualifications to [United National’s] offer do not evidence unqualified
acceptance.” United National’s payments to Lisitsa while the bad faith action was
pending do not alter this conclusion. Because United National’s offer was never
accepted, no contract was formed on which Lisitsa can recover.
“The measure of recovery in quantum meruit is the reasonable value of the
services rendered, provided they were of direct benefit to the defendant.” Palmer
v. Gregg, 65 Cal. 2d 657, 660 (Cal. 1967). “The idea that one must be benefitted
by the goods and services bestowed is thus integral to recovery in quantum
meruit.” Day v. Alta Bates Medical Center, 98 Cal. App. 4th 243, 249 (Cal. Ct.
App. 2002) (citing Maglica v. Maglica, 66 Cal. App. 4th 442, 449-50 (Cal. Ct.
App. 1998)).
The Superior Court found that United National never had a duty to defend or
indemnify the Enciso defendants because the endorsements adding coverage were
fraudulently obtained. Because United National had no duty to defend the Enciso
defendants, Lisitsa’s work on behalf of those defendants conferred no benefit on
United National. Thus, Lisitsa is not entitled to recover in quantum meruit.
AFFIRMED

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