NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

David Calvert-Jones appeals from a postjudgment order negating the jury's special verdict imposing liability on Helinet Aviation Services, LLC and its co-owner Alan Purwin (unless specified, collectively Helinet), for allegedly breaching an oral stock option agreement. The oral agreement, negotiated as part of his compensation when Calvert-Jones became chief executive officer (CEO), purportedly granted Calvert-Jones vested stock options to purchase a 5 percent interest in Helinet.1 The jury concluded the oral contract had been breached, and by special verdict, awarded Calvert-Jones $1.92 million. The damages awarded represented the value Calvert-Jones's expert placed on the appreciation of a 5 percent equity interest in Helinet from the date Calvert-Jones became CEO to the date he was fired 19 months later. The trial court granted Helinet's judgment notwithstanding the verdict (JNOV) based upon insufficient evidence that an enforceable oral stock option agreement existed between the parties. (Code Civ. Proc., § 629.) Upon our independent review of the evidence, giving deference to the jury's verdict, we conclude there is insufficient evidence to establish mutual assent to a separate oral agreement for stock options, and even if there were, as a matter of law the oral agreement is not an enforceable contract.

BACKGROUND

Helinet is a privately held company that provides helicopter services for medical, charter, news, and movie production companies. Purwin is one of Helinet's founders and co-owners. In 2005, Bison Capital owned a 25 percent interest in Helinet, acquired in exchange for a $20.5 million loan. Helinet also borrowed an additional $25 million from PNC Bank, and the company's value dropped from $80 million to $5.5 million. To address the company's challenges and to attempt a financial turnaround, Purwin decided to hire a new CEO. In July 2005, after a failed executive search, Purwin offered the CEO job to plaintiff Calvert-Jones. This lawsuit involves a dispute over Calvert-Jones's executive compensation, and more specifically, whether he had an oral stock option agreement to purchase 5 percent of Helinet's stock vesting immediately upon assuming his position as CEO.

1. Calvert-Jones Joins Helinet and Serves as Interim CEO

Calvert-Jones began working at Helinet in 2004 as a pilot and earned $40,000 per year. He is an Australian citizen and the nephew of Rupert Murdoch, the chairman and chief executive officer of News Corporation, which includes Fox television stations. Helinet had a contract with Fox, and Calvert-Jones contacted Purwin through his family's connections. Calvert-Jones was a helicopter pilot and owned helicopters. He took up flying helicopters as a hobby, and eventually contemplated starting a helicopter business. He intended to gain experience at Helinet for approximately one year and then return to Australia to start a similar company. Before joining Helinet, Calvert-Jones managed a family private equity firm.

In May 2005, while Helinet searched for a CEO, Calvert-Jones served as interim CEO. During the search for a new CEO, Purwin and Calvert-Jones, along with attorneys and consultants, discussed implementing an "equity compensation plan for management, new hires (including potentially a CEO) . . . ." Purwin explained that he was told an equity compensation plan was a way to attract CEO candidates. An e-mail addressed to Purwin from Helinet's attorneys stated: "As I understand it, approximately 15% of any equity pool would be set aside for management with a new CEO getting as much as 7%. A grant of from 1-7% is probably within the range of what is market for CEO equity grants." Purwin testified he had decided to set aside as much as 7 percent for a new CEO.

In July 2005, Mike Gillin became CEO of Helinet and resigned four days after assuming the position.2 Calvert-Jones was familiar with Gillin's compensation agreement and believed Gillin had been given stock options.

2. Calvert-Jones Becomes CEO and Demands Vested Stock Options

Calvert-Jones agreed to become CEO during a cell phone conversation with Purwin. Calvert-Jones demanded and received a salary of $200,000.

Calvert-Jones also testified that he told Purwin he wanted vested3 stock options to purchase 5 percent of Helinet, referencing at an earlier point in their conversation the contract Helinet had agreed to give Gillin, the short-lived CEO. In response, Calvert-Jones testified Purwin said: "`Great. Thank you.'"

During this cell phone conversation, Calvert Jones and Purwin did not discuss the exercise price for these options. But, Calvert-Jones knew that the stock options would not be free. ~(1634:24-1635:4)~ He thought the same mechanism negotiated to determine the price of stock options for Gillin's agreement would be used to determine the exercise or "strike price" for his contract.4

Calvert-Jones and Purwin also did not discuss the method of valuation or a valuation date. Calvert-Jones again thought that by mentioning Gillin's agreement, they would use the same method to value the company. Helinet already had engaged a valuation company as part of its efforts to create an executive stock option plan.

Calvert-Jones admitted that during their cell phone conversation, Purwin did not specifically say anything about "the vesting issue."

Calvert-Jones also acknowledged they did not discuss the mechanism to exercise the options. Calvert-Jones testified he planned to exercise his stock options through the Helinet stock option plan and never did so because Helinet did not get approval to implement the plan.

3. Calvert-Jones Works to Implement Helinet's Stock Option Plan, Which Includes His Options to Purchase 5 Percent of Helinet's Stock

Before Calvert-Jones became CEO, he knew that Helinet was attempting to create an executive stock option plan. One month into his tenure as CEO, Calvert-Jones hired a new law firm to draft the plan. The new law firm asked Calvert-Jones to forward "option commitments which the company has made to current or prospective employees[.]" Calvert-Jones told the attorneys the company made a commitment to grant him options to purchase 5 percent of Helinet's stock. Calvert-Jones did not tell the attorneys that he already had been granted vested stock options through another stock option mechanism.

Calvert-Jones intended to participate in the company's stock option plan. The September 2005 stock option plan allocation spreadsheet listed Helinet's management team. Calvert-Jones was listed as having an option allocation to purchase 5 percent of Helinet's stock, but not vested options. The July 2006 stock option plan allocation spreadsheet listed Calvert-Jones's option allocation as 5 percent of Helinet's shares (or 100,000 shares) with immediate vesting. According to the attorneys, the reference to "vesting immediately" in this stock option plan allocation spreadsheet indicated the options would vest upon adoption of the plan. Purwin had not approved the stock option allocations for the executives, with the exception of Calvert-Jones. Once the plan was adopted, based upon the stock option plan allocations, Calvert-Jones was entitled to receive vested stock options to purchase 5 percent of Helinet's stock.

In August 2006, the attorneys prepared another version of the company's stock option plan. Helinet, however, could not get Bison, which held a 25 percent equity interest in the company, to approve the plan. Helinet was in the process of attempting to remove this impediment for plan approval by refinancing to pay off the Bison loan.5 By December 2006, negotiations with banks to refinance were almost completed.

In late December 2006, Helinet still did not have approval of the stock option plan. Calvert-Jones sent an e-mail to Purwin regarding the stock option plan with several attachments, including a draft letter to "option holders," a draft letter he prepared addressed to him from Purwin, and the spreadsheet with the proposed option allocations. In the e-mail, Calvert-Jones explained that he wanted to get the "long awaited letters to all the option holders before the end of the year."

The draft letter addressed to Calvert-Jones from Purwin explained the company had been working toward adopting a stock option plan. It further announced that subject to approval of the plan, Calvert-Jones was among the persons to whom options would be granted. The options granted to Calvert-Jones permitted him to purchase 5 percent of the company's "membership interest." As noted, Calvert-Jones drafted this letter and admitted it made no sense if he already had been granted vested stock options.

Calvert-Jones was asked to resign. He refused because he did not want to "resign his rights away," which was understood to mean his stock option rights. Calvert-Jones was replaced on February 23, 2007; his tenure as CEO lasted approximately 19 months, from July 2005 to February 2007.

4. Appreciation of 5 Percent Equity in Helinet While Calvert-Jones is CEO

Assuming Calvert-Jones had 5 percent equity in Helinet, competing experts determined the value on July 11, 2005 when Calvert-Jones became CEO and on February 23, 2007, calculating the appreciation during that period.6 Calvert-Jones's expert valued the equity interest at $153,000 in July 2005 and at $2,003,000 in February 2007. Thus, the appreciation of the 5 percent equity interest was $1.92 million. The Helinet expert valued the appreciation at $88,000.

5. Jury Awards Calvert-Jones Appreciation Value of 5 Percent Equity

The jury credited Calvert-Jones's expert and awarded him $1.92 million as damages for breach of the oral agreement. During deliberations, the jury asked. "[A]re the damages [$1.92 million] and $88,000 or can we decide something in between that can be justified?" In response, the court again read the jury the damages instruction.

6. Trial Court Finds Insufficient Evidence of Essential Contract Terms and Grants Helinet's JNOV

The trial court granted Helinet's JNOV, concluding there was no substantial evidence presented of an enforceable contract. The court noted there was no evidence that the material terms of the contract were discussed, including option price, vesting, valuation, and a mechanism to exercise the options. The trial court reasoned the lack of material terms made it difficult for the jury to determine the appropriate remedy. As the court stated, "you can't fashion a remedy when [there are] no parameters," referring to the jury's confusion during deliberations when considering the appropriate measure of damages. The evidence, according to the court, showed at best that Calvert-Jones demanded stock options to purchase 5 percent of the company.

The court further concluded Purwin's response to Calvert-Jones's stock option demand was not sufficient evidence of a separate agreement apart from the stock option plan. Instead, the trial court stated the evidence supported the conclusion that Calvert-Jones would be given options to purchase 5 percent of Helinet's stock upon approval of the stock option plan, citing evidence of Calvert-Jones's participation under the same terms.

In light of its ruling, the trial court denied as moot Helinet's new trial motion and motion to tax costs. Calvert-Jones appeals from the judgment, and Helinet filed a protective cross-appeal from the trial court's denial of its motion for a new trial.

DISCUSSION

Calvert-Jones contends that his testimony regarding the cell phone conversation with Purwin is sufficient evidence to set aside the trial court's postjudgment order granting Helinet's JNOV. The crux of the dispute is whether Calvert-Jones's testimony shows the oral stock option agreement was independent of the company's stock option plan, and even if it were a separate agreement, whether the terms discussed during that cell phone conversation established an enforceable contract as a matter of law for compensatory stock options.

Stock options are often given to corporate executives as part of their incentive compensation package. (In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1374-1375.) A stock option is a contractual right to acquire a specified number of shares of the company's stock at a specified price, sometimes referred to as a "strike price," for a specified amount of time. (Id. at p. 1374; see also Scully v. US WATS, Inc. (3d Cir. 2001) 238 F.3d 497, 507-508.) "Stock options . . . allow an employee to buy the employer's stock at a specified future date at a price . . . fixed on the date that the stock is granted. Stock options are granted with the expectation that the stock will increase in price during the intervening period, thus allowing the grantee the right to buy the stock significantly below its market price." (Scully v. US WATS, Inc., at p. 507.) The option holder must invest funds in the amount of the strike price times the number of shares purchased. (In re Marriage of Pearlstein, at p. 1374.) "If the market price climbs higher than the strike price, the holder of the options will be able to realize income, in the form of the difference between the two prices, if he or she purchases the underlying stock and then immediately sells it. Only if the option holder chooses to purchase the stock at the strike price, but does not sell it, will he or she have acquired an equity interest in the underlying business." (Ibid.)

The distinction between stock options, shares of stock, and equity interest was not always clear during trial. But, Calvert-Jones maintains based upon the cell phone conversation that he was granted stock options to purchase 5 percent of Helinet's stock which were fully vested and exercisable on his first day as CEO. His theory at trial was that he would have exercised the options to purchase the stock at the strike price and held the stock to acquire an equity interest in Helinet. We must decide whether the trial court correctly determined that, despite the jury's verdict, there was no substantial evidence to support his claim of an enforceable oral contract.

1. Standard of Review

The trial court's discretion in granting a JNOV is "severely limited." (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) A trial court cannot reweigh the evidence or judge the credibility of witnesses and should deny the motion if the evidence is conflicting or subject to conflicting inferences. (Ibid.) A JNOV may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. (Ibid.)

On appeal, the standard is the same: We will affirm only if there is no substantial evidence to support the jury's verdict. (Reynolds v. Willson (1958) 51 Cal.2d 94, 99; Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.) We review the evidence, giving all the value that Calvert-Jones's evidence is legally entitled, and we indulge all legitimate inferences from the evidence in his favor. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 227.) We may reject testimony "only when it is inherently improbable or incredible, i.e., `"unbelievable per se,"' physically impossible or `"wholly unacceptable to reasonable minds."' [Citations.]" (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) In order for Calvert-Jones to prevail on appeal, the record must contain sufficient evidence to support a finding in his favor on each and every element of his contract claim. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.)

2. The Cell Phone Conversation is not Substantial Evidence of Mutual Assent to a Separate Agreement for Vested Stock Options

Calvert-Jones contends his testimony of his cell phone conversation with Purwin is sufficient evidence of an oral stock option contract despite contrary or contradictory evidence in the record. We view his testimony as insufficient to establish mutual assent, giving credit to his testimony regarding the cell phone conversation, and further find it wholly improbable on this record that Calvert-Jones's grant of stock options was a separate agreement and distinct from the company's stock option plan.

Mutual assent or consent communicated by each to the other is one of the essential elements of contract formation. (Civ. Code, §§ 1550, 1565.) Assent is not mutual unless the parties all agree upon the same thing in the same sense. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208; see also Civ. Code, § 1580.) "[T]here is no contract until there has been a meeting of the minds on all material points." (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 358.) This is an objective standard. (Bustamante v. Intuit, Inc., at p. 208.)

The evidence does not support a meeting of the minds between Purwin and Calvert-Jones that they had reached a separate agreement in which Calvert-Jones had been given vested stock options to purchase a 5 percent interest in Helinet. Crediting Calvert-Jones testimony, in response to his demand, Purwin stated: "`Great. Thank you.'" Calvert-Jones admits that nothing was specifically said about immediate vesting, strike price, or a mechanism to exercise these options. While Calvert-Jones testified he referred to the former CEO's compensation agreement during their conversation, Calvert-Jones did not testify that Purwin agreed to give him the same terms as negotiated in that agreement. According to Calvert-Jones, Purwin's only response was, "`Great. Thank you.'" This is a non sequitir, from which there is no reasonable inference that Purwin agreed to Calvert-Jones's demand or agreed to terms in the former CEO's stock option agreement. Calvert-Jones's subjective belief that he would get the same deal is not sufficient evidence to establish a meeting of the minds. (See Bustamante v. Intuit, Inc., supra, 141 Cal.App.4th at p. 208.)

Additionally, Calvert-Jones testified he would have exercised his vested stock options through the company's stock option plan. There is no agreement of that sort in the record; there was no company plan on the day Calvert-Jones negotiated the deal or became CEO. Calvert-Jones spent his entire tenure as CEO working to get approval of the stock option plan. Under the terms of that plan, the company intended to give Calvert-Jones the right to exercise options to purchase 5 percent of Helinet's stock, vesting immediately upon plan approval. In December 2006, shortly before he was fired, Calvert-Jones drafted a letter explaining these rights under the newly created stock option plan. Calvert-Jones did not testify this letter entitled him to an additional 5 percent of vested stock options under the terms of the stock option plan. Thus, focusing only on Calvert-Jones's testimony, it was wholly unreasonable that there was mutual assent to a separate stock option agreement between Purwin and Calvert-Jones that was distinct and separate from his participation in the company's stock option plan.

3. Insufficient Evidence to Establish the Terms of an Enforceable Contract

Calvert-Jones contends that he should not bear the burden of the company's failure to implement the stock option plan, and based upon his testimony an enforceable contract existed for vested stock options to purchase a 5 percent interest in Helinet.7 Giving Calvert-Jones's evidence the value it is legally entitled, we must determine if, as a matter of law, the terms of the contract he negotiated with Purwin are sufficiently certain to be enforced. (See Patel v. Liebermensch (2008) 45 Cal.4th 344, 348, fn. 1; Bustamante v. Intuit, Inc., supra, 141 Cal.App.4th at pp. 208-209.) To form a contract, terms must be reasonably certain to provide a basis to determine the existence of a breach and to determine the appropriate remedy so as to be judicially enforceable. (Bustamante v. Intuit, Inc., at p 209.) Whether the terms of a contract are sufficiently certain to be enforced presents a question of law. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 142.)

Here, crediting Calvert-Jones testimony that he had been promised options to purchase 5 percent of Helinet's stock, there was no mutual assent to strike price, vesting, or a mechanism to exercise these options. We reject Calvert-Jones's contention that these missing terms could be implied because he mentioned the former CEO's compensation agreement during his conversation with Purwin. There is no evidence that Purwin agreed to incorporate that agreement (or any other agreement) to supply these missing terms. This testimony shows Calvert-Jones's subjective belief, which is not enough.

We also cannot supply the missing terms, as Calvert-Jones suggests. We cannot imply price from the evidence or from the reasonable inferences of that evidence. Calvert-Jones contends we should imply fair market value on the date the stock options should have been granted, using the terms in the former CEO's agreement. As stated, Purwin and Calvert-Jones did not agree to incorporate that agreement, and they never discussed price or valuation during their cell phone conversation. For this reason, we find inapposite Goodwest Rubber Corp. v. Munoz (1985) 170 Cal.App.3d 919, 920, in which the parties negotiated "fair market value," or cases in which the price is objectively determined by prior course of dealing (see, e.g., Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 482-483). We also reject Calvert-Jones's contention that the absence of a strike price is the equivalent of the absence of terms specifying the time of payment, which can be implied by law. (See Patel v. Liebermensch, supra, 45 Cal.4th at pp. 350-351.) Thus, the absence of a strike price under these circumstances renders the contract unenforceable.

We also do not consider the absence of an agreement on the vesting issue or the mechanism to exercise these options to be immaterial terms. (See Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th at pp. 148-149.) Calvert-Jones's testimony is that Purwin did not specifically agree that his stock options would vest immediately. We cannot infer silence as assent. Therefore, we look to other evidence in the record. Calvert-Jones testified he intended to exercise his options through the company stock plan, although he never discussed this with Purwin. Under the plan, his options vested on plan approval, not at an earlier date. Thus, Calvert-Jones would not have been able to exercise his vested stock options on his first day as CEO, which was the basis for the jury's damages award. For this reason, we find Alexander v. Codemasters Group Limited, at pages 148 through 149, inapposite. Unlike Alexander, the absence of these terms establish the lack of mutual assent. "[T]he failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract. [Citations.]" (Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th 348, 359, italics omitted.) Based upon Calvert-Jones's own testimony, the evidence was insufficient to establish the essential terms of an enforceable contract.

Since we affirm the judgment entered following the trial court's order granting the JNOV, Helinet's cross-appeal is moot.

DISPOSITION

The judgment of the trial court is affirmed. Helinet is entitled to costs on appeal.

CROSKEY, Acting P. J. and KITCHING, J., concurs.