Taylor v. City of Colton CA4/2 (2015) · DecisionDepot
Taylor v. City of Colton CA4/2
California Court of Appeal Oct 28, 2015 No. E058348Unpublished
Filed 10/28/15 Taylor v. City of Colton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
GAYLENE SINGLETARY TAYLOR, as Co-trustee, etc., E058348 Plaintiffs, Cross-defendants and Appellants, (Super.Ct.No. CIVSS800216)
v. OPINION
CITY OF COLTON,
Defendant, Cross-complainant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed in part and reversed in part.
Law Offices of Courtney M. Coates and Courtney M. Coates for Plaintiffs,
Cross-defendants and Appellants.
Best Best & Krieger, Kira L. Klatchko and Irene S. Zurko for Defendant, Cross-
complainant and Appellant.
1
This court previously addressed this case when it was at the anti-SLAPP stage of
the proceedings. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 757 [Fourth
Dist., Div. Two].) The case is now at the summary adjudication stage. At the trial
court, Gaylor W. Singletary (Singletary)1 brought a Third Amended Complaint (TAC)
for (1) promissory estoppel; (2) breach of contract; (3) declaratory relief; and (4) unjust
enrichment. Defendant, cross-complainant and appellant City of Colton (the City) filed
a First Amended Cross-complaint (FACC) for (1) breach of contract; (2) breach of the
implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) unfair
business practices; (5) declaratory relief; (6) injunctive relief; and (7) indemnity.
Singletary owned real property in the City, near where Center Street may be
extended. In 1992, Singletary sought to subdivide his property. As part of the
subdivision plan, Singletary agreed to construct infrastructure for the property, such as
water and sewer systems. In the late 1990s, Singletary bribed a member of the City’s
City Council in exchange for the councilmember influencing the City to approve a
development plan (the Center Street Extension Project), which would result in the City
constructing the infrastructure—the same infrastructure Singletary had agreed to
construct. In 1999, the City Council approved a construction plan, which placed the
1 On April 5, 2015, Gaylor W. Singletary passed away; we granted the motion for substitution of a party, substituting Gaylene Singletary Taylor, as Successor Co- trustee of GW Singletary Private Revocable Living Trust of October 27, 1998. For clarity and ease of reference, with no disrespect intended, we refer to Gaylor Singletary in the body of this opinion.
2
burden on the City to construct the infrastructure. In 2003, Singletary pled guilty to a
charge of bribery. (18 U.S.C. § 666.)
Singletary’s lawsuit sought to have the City held responsible for constructing the
infrastructure along Center Street. The City’s lawsuit sought to have Singletary held
responsible for constructing the infrastructure. Singletary and the City brought motions
for summary judgment, or in the alternative, summary adjudication. The trial court
denied the motions for summary judgment, and proceeded on the alternative motions for
summary adjudication.
The trial court found, in pertinent part, (1) the 1992 contract was the only
contract between the City and Singletary; (2) Singletary was not a third party
beneficiary to other agreements upon which he tried to rely; (3) Singletary was not
obligated to reimburse the City for past infrastructure construction pursuant to a theory
of unjust enrichment; and (4) Singletary’s TAC was barred due to Singletary failing to
petition the trial court for leave to file an untimely government claim (Gov. Code,
§ 946.6). Given the findings, the trial court entered judgment in favor of the City on
Singletary’s TAC, and in favor of Singletary on the City’s FACC.
Both Singletary and the City have appealed. In his appeal, Singletary contends
he was not required to petition the court for leave to file an untimely claim because the
case is based on contract law, not tort law. Additionally, Singletary asserts the trial
court erred by finding the City is not legally responsible to finish constructing the
infrastructure because (1) the City is obligated by the 1992 contract and the law
concerning selection of alternative acts (Civ. Code, § 1450); (2) the City gave
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Singletary untimely notice of its decision to proceed with third party contractors; and
(3) Singletary is a third party beneficiary of the different agreements the City entered.
Singletary asserts this court should remand the matter back to the trial court for the trial
court to determine (1) whether the City had constitutional and/or statutory authority to
contract with Singletary to provide water and sewer connections; and (2) whether the
City is estopped from denying an obligation to complete the infrastructure construction
under the doctrine of promissory estoppel.
The City has filed a cross-appeal. The City raises four issues. First, the City
contends the 1992 agreement is enforceable against Singletary. Second, the City asserts
the issue of whether the City breached the 1992 contract in a manner that precludes
recovery against Singletary is a factual issue that (1) cannot be decided as a matter of
law, or (2) should have been decided in the City’s favor. Third, the City contends there
is a material factual dispute as to whether Singletary engaged in an unlawful business
practice, was unjustly enriched, or otherwise obligated by equity to reimburse the City
for its expenses in constructing the infrastructure. Fourth, the City asserts the trial court
exceeded its authority by summarily adjudicating factual or legal issues that did not
completely dispose of a cause of action. We affirm the trial court’s ruling on the City’s
motion against Singletary’s TAC. We reverse the trial court’s ruling on Singletary’s
motion against the City’s FACC.
4
FACTUAL AND PROCEDURAL HISTORY
A. SINGLETARY’S THIRD AMENDED COMPLAINT
The following allegations are taken from Singletary’s TAC. In 1991, the City
annexed approximately 680 acres of previously unincorporated land. The Center Street
expansion area was within the annexed land. As part of the annexation application, the
City presented a utility plan to the San Bernardino County Local Agency Formation
Commission (LAFCO). The utility plan reflected the City would immediately, upon
annexation, provide water, sewer, and electrical services, at the City’s expense.
In June 1999, the City, the City of Riverside (Riverside), and Singletary
negotiated regarding infrastructure improvements along Center Street. Riverside was
involved because it owned land, known as Pellisier Ranch, adjacent to the planned
extension of Center Street. As a result of the negotiations, in October 1999, Singletary
and the City entered into a development agreement (the development agreement); the
development agreement was approved by the City’s City Council (the City Council). A
city council agenda report from October 1999, reflected the City would extend the
utility services along the planned extension of Center Street in order to “satisfy the 1991
agreements that obligated the City to provide municipal services to the annexed areas.”
The development agreement provided the City would (1) pave the northern half of
Center Street, (2) install sewer and water lines, (3) install fire hydrants, and (4) install a
gas line; and Singletary would procure easements for the City from the property owners
along the planned Center Street expansion, in order to facilitate the infrastructure
improvements.
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As part of the development agreement, Singletary hired design engineers and
contractors “to assist him in providing services to [the] City to facilitate the project.”
The City awarded a no-bid contract to Krieger & Stewart, Inc. to design and engineer
the project; however, the City then awarded a contract to Singletary’s engineer, in order
to utilize that engineering company’s plan for the project. Singletary acquired cost-free
easements for the City from property owners along the planned Center Street expansion,
in order to facilitate the project.
In June 2000, the City and Riverside agreed to share the costs of some of the
infrastructure improvements. Also in 2000, the City’s assistant city manager sent letters
to property owners along the planned Center Street extension. In the letters, the City
committed to providing water, sewer, and gas lines, and to pave the northern portion of
Center Street. Included with the letters were easement documents and/or dedication
statements for the property owners to complete.
In October 2006, the City awarded a contract to a pipeline contractor for the
installation of water and wastewater lines as part of the Center Street expansion. In
November 2006, the City awarded another contract for materials and supplies related to
the water and sewer improvements. In 2007, the City performed a portion of the
infrastructure improvements, including construction of a 16-inch water line, a 12-inch
gravity sewer, and a 12-inch force main. However, property owners along the planned
Center Street expansion remain unable to connect to the City’s water and sewer
systems, the northern portion of Center Street was not fully paved, and the gas line was
not installed.
6
In June 2008, Riverside sued the City over alleged violations of the California
Environmental Quality Act. The two cities engaged in settlement discussions. In June
2009, the two cities entered into a memorandum of understanding (MOU), in which the
City agreed to construct a sewage pump station or other facilities to convey wastewater
to the City’s wastewater treatment facility. The pump station would serve Riverside’s
Pellisier Ranch property, along with the properties along the Center Street expansion as
part of the Pellisier Ranch Specific Plan. Riverside agreed to allow property owners
along the Center Street expansion to temporarily discharge their wastewater into
Riverside’s sewer system. The City agreed to construct a metering station upstream of
the connection to Riverside’s sewer system, and to pay Riverside a monthly service
charge. The two cities agreed to share rights of ingress and egress granted in the
easements by the property owners along the Center Street expansion.
In September 2009, the City sent Singletary a letter demanding that Singletary
pay $408,398.70 for the infrastructure improvements already performed along the
Center Street expansion. The City further demanded Singletary commence constructing
infrastructure improvements. Singletary rejected the City’s demands because the City
had agreed to construct the improvements at its own expense through bonds. The City
refused to pay for the improvements, which caused Singletary and other property
owners along the Center Street expansion to pay for the improvements. The
infrastructure improvements remain unfinished; the property owners were not connected
to the sewer lines, the street was unpaved, and the gas line was not installed. Singletary
spent $21,542.40 for pavement, curb, and gutter work. The estimated cost for paving
7
along Center Street was $137,195. The estimated cost of installing a gas line was
$37,195.
On October 2, 2007, Singletary filed a government tort claim against the City on
behalf of himself and other property owners along the Center Street expansion. The
City found the claim to be untimely under a six-month statute of limitations, and
returned the claim to Singletary. Singletary asserted the six-month limitation did not
apply to contract claims. Singletary applied to have the City reconsider its conclusion
that the claim was untimely. The City did not timely respond to Singletary’s application
for reconsideration.
In Singletary’s TAC, his first cause of action was based upon promissory
estoppel. Singletary asserted the City was estopped from denying it agreed to construct
the infrastructure improvements. Alternatively, Singletary alleged the City made
promises without intending to perform its obligations so as to procure free easements.
Singletary’s second cause of action concerned breach of contract. Singletary asserted
he, and the other property owners along the planned Center Street expansion, were third
party beneficiaries of the MOU (between the City and Riverside) and the contracts the
City entered into to facilitate construction of the infrastructure. Singletary alleged the
City breached its contractual obligations by failing to construct the infrastructure at its
own expense.
Singletary’s third cause of action was for declaratory relief. Singletary requested
the trial court declare (1) a valid and enforceable contract existed between the City and
the property owners along the planned Center Street expansion wherein the City was
8
responsible for constructing the infrastructure; (2) the construction must be completed
within a reasonable time period; and (3) Singletary was entitled to damages for the
City’s construction delays. Singletary’s fourth cause of action was based upon unjust
enrichment. Singletary alleged the City obtained easements at no cost, as well as
Singletary’s services, which unjustly enriched the City.
Singletary sought damages; attorney’s fees; costs; the declaration, detailed ante;
an injunction requiring the City to complete the construction in a reasonable time
period; the value of Singletary’s services in procuring the easements; and any other
relief deemed proper.
B. THE CITY’S FIRST AMENDED CROSS-COMPLAINT
The following allegations are taken from the City’s FACC. In 1992, Singletary
sought permission from the City to subdivide his property. In order to subdivide the
property, Singletary was required to construct infrastructure, such as water and sewer
systems, as well as paving the street. In October 1992, Singletary and the City entered
into a written agreement whereby Singletary could immediately subdivide his property,
but construction of the infrastructure would be deferred until a future time of the City’s
choosing. The agreement was recorded in November 1992 in connection with one of
Singletary’s parcel maps.
In November 1997, James Grimsby (Grimsby) became a councilmember on the
City Council. Singletary gave Grimsby cash in exchange for Grimsby influencing the
City to pay for the infrastructure along the Center Street expansion. In 1999, the City
Council voted to direct City staff to negotiate a development plan with Singletary,
9
known as the Center Street Extension project, and to enter into contracts with engineers,
contractors, and material suppliers to construct the infrastructure. In 2003, Singletary
pled guilty to one count of bribing Grimsby. (18 U.S.C. § 666.)
In 2009, the City discovered the 1992 subdivision agreement involving
Singletary. City staff who had been involved with the 1992 agreement were no longer
employed with the City, and the agreement “had long since been buried in the City’s
archives,” such that it could not have been discovered in the course of a “regular search
of the City’s records.” In August 2009, at a deposition, Singletary admitted signing the
1992 agreement.
The City had been unaware of the 1992 agreement when it constructed portions
of the infrastructure. In September 2009, Colton demanded Singletary commence
building the remaining unconstructed portions of the infrastructure and sought
reimbursement for the already completed portions of the infrastructure. Singletary had
actual and constructive notice of Colton installing the infrastructure due to Singletary’s
frequent communications with the City, Riverside, contractors, and material suppliers,
and his visits to the construction site. The City did not give Singletary formal notice
under the agreement that it was commencing construction, but formal notice “would
have been superfluous and redundant” given the actual and constructive notice.
The City’s first cause of action concerned breach of contract. The City alleged
Singletary breached the 1992 agreement by rejecting the City’s 2009 demand for
Singletary to commence constructing the infrastructure. The City asserted damages
would be an insufficient remedy, and therefore requested Singletary be required to
10
specifically perform the terms of the agreement. The City’s second cause of action was
based upon breach of the implied covenant of good faith and fair dealing. The City
alleged Singletary breached the implied covenant by bribing Grimsby in an attempt to
avoid his obligations under the 1992 agreement.
The City’s third cause of action concerned unjust enrichment. The City asserted
Singletary was allowed to subdivide his property and sell a portion of the subdivided
property, without bearing the cost of the infrastructure improvements, which unjustly
enriched Singletary. The City asserted Singletary should have been required to pay for
the infrastructure improvements. The City’s fourth cause of action was based upon
unfair business practices. (Bus. & Prof. Code, § 17200.) The City asserted Singletary
engaged in an unfair, unlawful, and fraudulent business practice by bribing Grimsby.
The City’s fifth cause of action sought declaratory relief. The City requested the
trial court declare (1) the 1992 contract was valid and enforceable; (2) the 1992 contract
was not superseded by any of the City’s subsequent acts or omissions; (3) the 1992
contract still required Singletary to construct the infrastructure; (4) Singletary was
obligated to reimburse the City for the portion of the infrastructure already constructed
by the City; (5) Singletary’s obligations under the 1992 contract had not been altered by
his sale of the property; (6) the City did not made a selection or election under Civil
Code section 1450; (7) Singletary was directly liable for his breach of the 1992 contract;
(8) Singletary had actual and constructive notice of the City constructing portions of the
infrastructure; (9) the City’s failure to formally notify Singletary that it was
commencing construction was not a breach of the 1992 contract; (10) the failure to
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formally notify Singletary would apply only to the infrastructure already constructed,
and not to the infrastructure that still needed to be built; (11) the 1992 contract did not
violate the City’s Municipal Code or the Subdivision Map Act; (12) Singletary’s bribery
conviction barred Singletary from any monetary or injunctive relief; (13) Singletary
lacked standing to sue as a third party beneficiary of any contract between the City and
another party; and (14) Singletary’s claims were time barred by the Tort Claims Act
(Gov. Code, §§ 900 et seq.).
The City’s sixth cause of action was a request for injunctive relief. The City
asserted it was suffering irreparable harm due to Singletary’s unlawful conduct. The
City requested an injunction requiring Singletary to finish constructing the infrastructure
and reimburse the City for the infrastructure already constructed. The City’s seventh
cause of action sought indemnification. The City alleged Singletary was obligated to
indemnify the City for the costs it incurred in installing the infrastructure.
The City sought: (1) specific performance; (2) actual and consequential
“Thus, a plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause
of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.
[Citation.] A defendant bears the burden of persuasion that ‘one or more element of’
the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete
defense’ thereto.” (Aguilar, supra, 25 Cal.4th at p. 850.)
The second burden concerns the production of evidence. “[T]he party moving
for summary [adjudication] bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact; if he carries his burden
of production, he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a triable issue
of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
“A burden of production entails only the presentation of ‘evidence.’ [Citation.]
A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of
a ‘requisite degree of belief.’” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie
showing is one that is sufficient to support the position of the party in question.
[Citation.] No more is called for.” (Id. at p. 851.)
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II
SINGLETARY’S APPEAL
A. 1999 THROUGH 2001 DOCUMENTS
1. EXISTENCE OF A CONTRACT—CITY’S BURDEN
The City brought a motion for summary adjudication on Singletary’s TAC. The
City argued the only enforceable contract between the parties was the 1992 agreement.
The City did not provide a copy of the 1992 agreement. Rather than argue the validity
of the 1992 contract, the City argued the invalidity of the documents upon which
Singletary was relying. Accordingly, we are examining whether the documents upon
which Singletary relies created a contract or promise.
The City argued that Singletary only presented a mixture of letters, agenda
reports, and city council minutes, which did not amount to a contract. The City relied
on case law reflecting a City’s rules regarding contract formation must be followed in
order for an action/document to be a municipal contract. (First Street Plaza Partners v.
City of Los Angeles (1998) 65 Cal.App.4th 650, 667 [city’s specific contract formation
rules must be followed for enforceable municipal contracts].)
In support of its argument, the City provided the trial court with (1) the October
19, 1999, City Council agenda report, which reflected the City Council would consider
approving a development plan with Singletary wherein the City would construct the
infrastructure; (2) a letter from the City to a design company, reflecting that, at the
October 19 meeting, the City Council awarded a contract to the design company for the
design of the water and sewer infrastructure; (3) an October 2000 letter from the City to
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Center Street property owners reflecting the City was “contemplat[ing]” constructing a
water and sewer main, fire hydrants, and paved roads for the Center Street expansion,
and that the City “agrees to provide the aforementioned improvements . . . in exchange
for the required right-of-way dedications from property owners in the area”; and (4) a
May 2001 City Council agenda report reflecting the council was to consider accepting
the easements offered by property owners along the Center Street expansion. The City
included a variety of other documents, such as the easements.
The City asserted former Colton Municipal Code section 18.58.080 governed the
creation of development agreements, and the requirements of that section were not met
by the foregoing documents. Pursuant to former Colton Municipal Code section
18.58.080(12)(b), a development agreement must state (a) the specific duration of the
agreement, (b) the permitted uses of the property, (c) the density and intensity of use,
(d) the maximum height and size of proposed buildings, and (e) the specific provisions
for reservations or dedication of land for public purposes. Additionally, the
development agreement must be recorded by the County Recorder within 10 days of the
effective date of the agreement. (Former Colton Muni. Code, § 18.58.080(16)(a).)
The agenda reports and letters do not meet the requirements of a development
agreement. The documents do not include the necessary information, and there is
nothing reflecting any of it has been recorded. Accordingly, the City met its burden of
establishing a prima facie case that it did not make an enforceable agreement with
Singletary for the City to construct the infrastructure.
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2. PROMISSORY ESTOPPEL—SINGLETARY’S BURDEN
In Singletary’s opposition to the City’s motion for summary judgment, he
asserted that a resolution by the City combined with the City’s letters to property
owners created a promise by the City to construct the infrastructure. Singletary relied
on promissory estoppel as legal support for his argument. Typically, a city cannot be
bound to a contract by estoppel. (First Street Plaza Partners v. City of Los Angeles,
supra, 65 Cal.App.4th at p. 669.) The reasoning for this rule is that a municipality
cannot avoid its contract formation requirements by relying on estoppel. (Ibid.)
Despite this general rule, we will address Singletary’s promissory estoppel theory.
“‘Promissory estoppel is “a doctrine which employs equitable principles to
satisfy the requirement that consideration must be given in exchange for the promise
sought to be enforced.”’ [Citations.] The elements of promissory estoppel are (1) a
clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the
extent of the obligation assumed and not performed.’” (Toscano v. Greene Music
(2004) 124 Cal.App.4th 685, 692.)
Singletary asserts the City made a promise by (1) passing a resolution, and
(2) sending the 2000 letter to property owners regarding the grant of easements to the
City. In the 2000 letter, the City explained that it had been in negotiations with
Singletary and Riverside regarding improvements along Center Street. The letter
reflects, “As part of the negotiations, the City of Colton agrees to provide the
aforementioned improvements including one domestic sewer connection, one domestic
water connection up to two inches, and fire hydrants per city code, in exchange for the
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required right-of-way dedications from property owners in the area. The Center Street
project and its associated budget were approved by the City Council on May 2, 2000.
The actual construction of the Center Street Project is contingent upon the delivery of
the signed easements from all affected property owners and their acceptance by the City
Council. This letter represents a testimonial to the City of Colton’s commitment to
providing essential public services to property owners in the Center Street area. If you
concur with the exchange stipulated above please indicate by signing the attached grant
of easement document.”
The foregoing is in the nature of an offer; it is not a promise. An “offer must be
certain and definite,” hence the detail in the City’s offer. (Apablasa v. Merritt & Co.
(1959) 176 Cal.App.2d 719, 723.) The party to whom an offer is made must consent to
the exact terms in order for a contract to exist. (Id. at p. 726.) In the 2000 letter, the
City wrote, “If you concur with the exchange stipulated above please indicate by
signing the attached grant of easement document.” In that sentence, the City is asking
for consent to an offer.2
In promissory estoppel, a promise is made when a party states it will perform a
service or provide a good without consideration. (US Ecology, Inc. v. State (2005) 129
Cal.App.4th 887, 903.) The person expecting to receive the good or service need not
provide anything in exchange, so that person’s reliance becomes a substitute for the
2 While we refer to this as an offer, we do so for ease of understanding. Ultimately, as explained post, there is no evidence the assistant city manager who signed the 2000 letter had authority to enter into contracts on the City’s behalf.
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consideration that would typically be present in a contract action. (Id. at pp. 903-904.)
In the instant case, the City offered to construct infrastructure if the property owners
agreed to provide easements. The City wanted consideration, i.e., the easements,
therefore, the City did not make a promise.
In regard to the City passing a resolution, Singletary does not provide the
language of the resolution. Rather, Singletary cites to three declarations, which discuss
the 2000 letter. Since we have not been directed to the language of the resolution, we
cannot determine if a clear promise has been made. (Cal. Rules of Court, rule
8.204(a)(1)(C) [support any reference with a record citation].) As a result, Singletary
has not met his burden on this issue. We conclude the promissory estoppel theory fails.
3. BINDING AGREEMENT—SINGLETARY’S BURDEN
Alternatively, Singletary asserted the agenda reports, city council meeting
minutes, grants of easements, subcontracts, and correspondence from the City to
property owners is evidence of a binding agreement. At oral argument in this court,
Singletary cited Colton Municipal Code section 3.08.160 to support his point. That
section provides, “Pursuant to the California Government Code, the Mayor must
execute all contracts on behalf of the City, unless another City Officer or Employee is
authorized to do so. The City Manager and his or her Designees, as explicitly set forth
in this chapter and the administrative policies implementing this chapter, are hereby
authorized to execute contracts on behalf of the City.”
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The 2000 letter from the City to homeowners, a portion of which is quoted ante,
was signed by the assistant city manager. Thus, the mayor or the city manager was not
a signatory to the letter. Singletary does not direct the court to where “in this
[municipal code] chapter and the administrative policies implementing this [municipal
code] chapter” (1) the assistant city manager is named as a designee, or (2) the
procedure for how a person becomes a designee. (Colton Muni. Code, § 3.08.160.) We
note the city manager, in a declaration, declared he approved the assistant city
manager’s act of sending the 2000 letter to property owners; however, Singletary has
not established that this casual authorization is sufficient to create a “designee”
authorized to execute contracts. There is a significant difference between authorization
to send a letter and authorization/designation to sign a contract.
As a result, we conclude the assistant city manager is not a designee authorized
to execute contracts on behalf of the City. Because the assistant city manager is not
authorized to execute contracts, we conclude the agenda reports, city council meeting
minutes, grants of easements, subcontracts, and correspondence from the City to
property owners did not create a binding agreement.
4. THIRD PARTY BENEFICIARY—SINGLETARY’S BURDEN
Next, Singletary asserted he was an intended third party beneficiary of the
contracts the City entered into with others to design and construct the infrastructure.
The allegation of being an intended third party beneficiary was not raised in
Singletary’s government tort claim form. The only item attached to Singletary’s
government tort claim letter was the 2000 letter sent to homeowners—he did not attach
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contracts involving the City and other parties concerning the design and construction of
the infrastructure. Arguably, because the third party beneficiary theory involves an
effort to premise liability on documents/contracts generated at different times than those
described in Singletary’s initial claim letter, the theory is barred. (See Stockett v.
Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441,
447.)
However, in October 2009, after the City demanded Singletary construct the
infrastructure pursuant to the 1992 agreement, Singletary sent the City a letter. In the
2009 letter, Singletary asserted the property owners along Center Street “are part of a
class of intended third-party beneficiaries to the MOU and those prior agreements
entered into by the City of Colton to facilitate those improvements.” The TAC includes
an allegation that Singletary and property owners along Center Street are “intended
third-party beneficiaries of the MOU, dated June 2009, and those preceding contracts
that were entered into by [the] City of Colton to facilitate the City’s plan, design, and
construction of the promised street and utility infrastructure improvements . . . .”
Accordingly, because there was some notice given of the third party liability theory, we
will address the substantive merits of the issue.
A third party may only enforce a contract that is “made expressly for the benefit
of [the] third person.” (Civ. Code, § 1559; Southern California Gas Co. v. ABC Constr.
Co. (1962) 204 Cal.App.2d 747, 750.) “Expressly,” in this context, is the negative of
“incidentally”—the third party does not need to be specifically named. (Gilbert
Singletary moved for summary judgment or summary adjudication against the
City’s cross-complaint. In the motion, Singletary raised six arguments. First,
Singletary asserted he was not liable for constructing the infrastructure because the
obligation was a covenant running with the land, and Singletary no longer owned the
relevant property. Second, Singletary asserted Colton had a duty to complete
constructing the infrastructure after selecting the option of constructing the
improvements itself. (Civ. Code, § 1450.)
Third, Singletary contended the City failed to perform an express condition
precedent of the 1992 agreement—providing 30 days written notice to Singletary prior
to incurring construction costs at Singletary’s expense. Fourth, Singletary asserted he
had no duty to reimburse the City under a theory of unjust enrichment. Fifth, Singletary
contended the 1992 agreement was unenforceable because it violates the Subdivision
Map Act and the Colton Municipal Code. Sixth, Singletary contended his bribery
conviction did not void the City’s preexisting obligations with respect to constructing
the infrastructure.
B. COVENANT RUNNING WITH THE LAND
We examine Singletary’s assertion that he bears no liability under the 1992
agreement because the agreement constitutes a covenant running with the land.
1. LANGUAGE IN THE 1992 AGREEMENT
The 1992 agreement provides, “This agreement shall constitute a recordable
covenant running with the land and shall be binding upon the heirs, executors,
administrators and successors and assigns of the parties hereto.”
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The 1992 agreement further provides, “In the event Singletary or successor in
interest shall refuse or neglect to commence the installation of said improvements
within one week after the aforesaid 30 days notice [to commence construction], or to
finish the installation within a reasonable period of time, CITY may at its expense by
separate contract or force labor accomplish the installation and construction of said
improvements and Singletary or successor in interest shall be liable to CITY for its costs
thereof including, but not limited to overhead, labor and material. Said liability shall be
a lien on the real property described herein, as a condition of said parcel map.”
2 STATUTORY LAW
a) Law
Civil Code section 1461 provides, “The only covenants which run with the land
are those specified in this Title, and those which are incidental thereto.” “A covenant
can run with the land under either [Civil Code] section 1462 or [Civil Code] section
1468.” (Self v. Sharafi (2013) 220 Cal.App.4th 483, 488.)
b) Civil Code section 1462
Civil Code section 1462 provides, “Every covenant contained in a grant of an
estate in real property, which is made for the direct benefit of the property, or some part
of it then in existence, runs with the land.” The 1992 agreement was created as part of
Singletary subdividing his land. The agreement is not contained in a grant of an estate
in real property. Accordingly, the agreement does not constitute a covenant running
with the land under Civil Code section 1462.
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c) Civil Code section 1468
Civil Code section 1468 provides, “Each covenant, made by an owner of land
with the owner of other land or made by a grantor of land with the grantee of land
conveyed, or made by the grantee of land conveyed with the grantor thereof, to do or
refrain from doing some act on his own land, which doing or refraining is expressed to
be for the benefit of the land of the covenantee, runs with both the land owned by or
granted to the covenantor and the land owned by or granted to the covenantee and shall
. . . benefit or be binding upon each successive owner, during his ownership . . . .”
The City is not described as a landowner in the 1992 agreement. The agreement
does not reflect it will benefit property owned by the City. Rather, the 1992 agreement
provides that Singletary owns property in the City and Singletary consents to
constructing infrastructure that would serve his property and “other property in the
area.” Thus, we conclude the agreement was not made by two landowners. Further, the
agreement does not involve a grantor and grantee. As a result, the 1992 agreement does
not constitute a covenant running with the land under Civil Code section 1468.
3. CASE LAW
In Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, the
Andersons wanted to operate a winery and keep llamas on their property. Some
neighbors objected, asserting the activities were prohibited by the covenants, conditions,
and restrictions (CC&Rs) on the Andersons’ property. The Andersons contended the
CC&Rs were unenforceable because they were not included in any deed to their
property. (Id. at p. 348.)
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The Supreme Court adopted the following rule: “If a declaration establishing a
common plan for the ownership of property in a subdivision and containing restrictions
upon the use of the property as part of the common plan is recorded before the
execution of the contract of sale, describes the property it is to govern, and states that it
is to bind all purchasers and their successors, subsequent purchasers who have
constructive notice of the recorded declaration are deemed to intend and agree to be
bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are
not unenforceable merely because they are not additionally cited in a deed or other
document at the time of the sale.” (Citizens for Covenant Compliance v. Anderson,
supra, 12 Cal.4th at p. 349.)
In the instant case, the document is a contract, not a declaration. The difference
between a contract and a declaration makes this case less like Citizens, and more like
Fresno Canal and Irrigation Company v. Dunbar (1889) 80 Cal. 530 (Fresno). In
Fresno, the plaintiff was a corporation engaged in diverting and supplying irrigation
water. The plaintiff entered into a contract with a landowner, Roeding. The plaintiff
sold Roeding a water right for a tract of real estate that Roeding owned. In the contract,
the plaintiff agreed to construct a box or gate to convey water to the land, and Roeding
agreed to construct a ditch from the box or gate to his land. Roeding agreed to pay $400
per year for the water being furnished to his land. The agreement reflected, “‘It is
covenanted that this agreement and the covenants therein contained, on the part of the
party of the second part, run with and bind the land.’” (Id. at pp. 532-533.)
36
Roeding sold and conveyed the relevant land to Dunbar. The plaintiff sued
Dunbar asserting Dunbar owed money under the contract because the contract
constituted a covenant running with the land, which had been recorded on the property.
(Fresno, supra, 80 Cal. at pp. 533-534.) The trial court found in favor of the plaintiff,
entering a personal judgment against Dunbar and decreeing a lien for the amount due,
ordering a sale of the property. (Id. at p. 534.)
On appeal, Dunbar argued that the contract did not create a covenant running
with the land because it was not made in connection with a conveyance or transfer of
land. (Fresno, supra, 80 Cal. at p. 534.) The Supreme Court agreed the contract did not
create a covenant running with the land, but noted the contract was meant to bind the
land. Thus, the court questioned whether the contract was meant to create a lien upon
the land. The court concluded “it [is] perfectly clear from the language used that this
was the intention of the parties.” The court concluded the contract created a lien upon
the land. (Id. at p. 535.) The Supreme Court held Dunbar was not personally liable for
the water payment; rather, Dunbar purchased property that was subject to the lien.
(Ibid.)
Typically, under the Subdivision Map Act, a subdivider who is responsible for
constructing infrastructure would post a bond, deposit, instrument of credit, or lien on
the property in order to secure the future construction. (Gov. Code, § 66499, subd.
(a)(1)-(3).) A lien is a proper form of security when “the local agency finds that it
would not be in the public interest to require the installation of the required
37
improvement sooner than two years after the recordation of the map.” (Gov. Code,
§ 66499, subd. (a)(4).)
As set forth ante, the 1992 agreement does include language about a lien: “Said
liability shall be a lien on the real property described herein, as a condition of said
parcel map.” The 1992 agreement also reflects the infrastructure need not be
immediately constructed: “It is deemed unnecessary at this time for said site
improvements to be so constructed and installed as part of said parcel map.” Thus, the
agreement reflects the infrastructure construction may be delayed for more than two
years, which would make a lien a proper form of security. (Gov. Code, § 66499, subd.
(a)(4).)
Under the Subdivision Map Act, a subdivision “may be lawfully accomplished
only by obtaining local approval and recordation of a tentative and final map pursuant to
section 66426, when five or more parcels are involved, or a parcel map pursuant to
section 66428 when four or fewer parcels are involved.” (Gardner v. County of Sonoma
(2003) 29 Cal.4th 990, 997.)
In 1992, Singletary subdivided his property into three parcels, under Parcel Map
No. 14405.3 The evidence reflects that Singletary subdivided the property into fewer
than four parcels, and the subdivision was recorded on a parcel map, which triggers the
application of the Subdivision Map Act. (Gardner v. County of Sonoma, supra, 29
3 In 1994, Singletary further subdivided the remainder parcel, which was recorded on Parcel Map No. 14631. It appears the parcel was divided into two lots. In 1998, Singletary again subdivided the remainder parcel into four parcels, which was recorded on Parcel Map No. 15145.
38
Cal.4th at p. 997; Van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549,
565-566.)
Given (1) the Subdivision Map Act is applicable to Singletary’s 1992
subdivision; (2) a lien is a typical method of providing security for improvements under
the Subdivision Map Act (Gov. Code, § 66499, subd. (a)(4)); (3) the 1992 agreement
uses the word “lien”; and (4) our Supreme Court held the contract in Fresno created a
lien, rather than a covenant running with the land (Fresno, supra, 80 Cal. at p. 535), we
conclude the 1992 agreement did not create a covenant running with the land, but did
create a lien upon the property, which was recorded in San Bernardino County’s official
records. Thus, Singletary cannot avoid liability for constructing the infrastructure by
virtue of the 1992 agreement being a covenant running with the land. Singletary is
personally liable for constructing the infrastructure, although his performance is secured
by land he no longer owns. Accordingly, summary adjudication should have been
denied as to this theory.
C. SELECTION OF ALTERNATIVE ACTS
Next, we address Singletary’s assertion that Colton had a duty to complete
constructing the infrastructure after selecting the option of constructing the
improvements itself. (Civ. Code, § 1450.)
1. CONTRACT LANGUAGE
The 1992 agreement provides, “In the event Singletary or successor in interest
shall refuse or neglect to commence the installation of said improvements within one
week after the aforesaid 30 days notice [to commence construction], or to finish the
39
installation within a reasonable period of time, CITY may at its expense by separate
contract or force labor accomplish the installation and construction of said improvement
and Singletary or successor in interest shall be liable to CITY for its costs thereof
including, but not limited to overhead, labor and material. Said liability shall be a lien
on the real property described herein, as a condition of said parcel map.”
2. LAW
Civil Code section 1450 reads, “The party having the right of selection between
alternative acts must select one of them in its entirety, and cannot select part of one and
part of another without the consent of the other party.”
3. DISCUSSION
Singletary asserts that because the City elected to construct the infrastructure at
its own expense (although it ultimately did not finish the construction), the City chose
between the two alternatives of (a) performing the work itself, and (b) Singletary
performing the work.
Singletary’s argument is not persuasive because he has not shown that, prior to
the City’s construction, he refused or neglected to perform the work after being given
notice to perform, thus triggering the City’s obligation to choose between two
alternatives. Singletary asserts the City demanded he perform the construction work in
2009, and he rejected that demand in 2009. However, Singletary is relying on the City’s
construction contract with Riverside, entered into in 2005, as proof that the City chose
the alternative of constructing the infrastructure itself. The City could not have chosen
the alterative of constructing the infrastructure itself in 2005, when the event triggering
40
an election of alternatives did not occur until four years later, in 2009. The portion of
the contract cited by Singletary does not provide for what shall/may occur if the City
simply decides to construct the infrastructure on its own, without the condition
precedent having occurred, i.e. Singletary’s refusal or neglect to commence construction
after notice is given by the City. Accordingly, summary adjudication should have been
denied as to this theory because the selection of alternatives is inapplicable.
D. WRITTEN NOTICE
Next, we address Singletary’s contention that the City failed to perform an
express condition precedent of the 1992 agreement—providing 30 days written notice to
Singletary prior to incurring construction costs at Singletary’s expense.
1. CONTRACT LANGUAGE
“Upon 30 days written notice by CITY to Singletary or successors in interest to
commence the construction and installation of said off-site and street improvements,
namely Pellisier Street improvements and on site improvements 32 foot wide private
road easement from Pellisier to remainder parcel as shown on Parcel Map 14405 he and
or they will do so in accordance with plans and installation of said off-site
improvements, he and or they will do so in accordance with plans and specifications
approved by CITY according to code, ordinances and policies then applicable or in
accordance with the aforementioned public utilities improvement district to accomplish
said construction as expeditiously as reasonably possible. The construction and
installation of said off-site and on-site improvements shall be at no cost whatsoever to
CITY.”
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2. LAW
“A condition precedent is one which is to be performed before some right
dependent thereon accrues, or some act dependent thereon is performed.” (Civ. Code,
§ 1436.)
3. DISCUSSION
There is nothing in the foregoing contract language about reimbursement. The
foregoing language, upon which Singletary is relying, concerns Singletary performing
construction work, and notice being a condition precedent to Singletary’s performance
of that construction work. There is no language about a condition precedent prior to the
City performing work or the City seeking reimbursement. Since there is no relevant
reimbursement language in the foregoing portion of the contract, it cannot be concluded
on this evidence that the City was required to give Singletary notice prior to performing
the work itself and/or seeking reimbursement. (See Crawford v. France (1933) 219 Cal.
439, 443 [evidence is admissible to prove any matter on which a contract is silent]; see
also American Industrial Sales Corp. v. Airscope, Inc. (1955) 44 Cal.2d 393, 397
[same].) Accordingly, summary adjudication should have been denied as to this theory
because it cannot be concluded on this evidence that notice was required prior to the
City engaging in its own construction work.
On our own, we note the 1992 agreement includes a clause, which we have
already quoted multiple times, with the following language: “In the event Singletary or
successor in interest shall refuse or neglect to commence the installation of said
improvements within one week after the aforesaid 30 days notice [to commence
42
construction], or to finish the installation within a reasonable period of time, CITY may
at its expense by separate contract or force labor accomplish the installation and
construction of said improvement and Singletary or successor in interest shall be liable
to CITY for its costs thereof including, but not limited to overhead, labor and material.
Said liability shall be a lien on the real property described herein, as a condition of said
parcel map.”
This clause also does not apply to the situation at hand. The situation being that,
prior to 2009, the City commenced construction without giving notice to Singletary.
The clause does not provide that the City may only seek reimbursement upon giving
notice. Rather, it provides for what may occur if notice is given and Singletary declines
to perform. The contract does not set forth a plan for what will occur in the current
situation. For example, the contract does not read, “the City shall only seek
reimbursement upon first having provided 30 days written notice to Singletary,” thereby
negating the possibility of the City obtaining a reimbursement without first providing
notice. The contract simply does not cover the situation as it occurred in this case.
Accordingly, we are not persuaded that giving notice is an express condition precedent
that the City failed to perform prior to seeking reimbursement.
E. UNJUST ENRICHMENT
Next, we examine Singletary’s assertion that he has no duty to reimburse the City
under a theory of unjust enrichment. Without citing any new contract language,
Singletary contends the City failed to perform an express condition precedent, i.e., the
City failed to provide Singletary notice prior to performing the construction work.
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Singletary reasons that because the City did not perform the express condition
precedent, it cannot prevail on a theory of unjust enrichment.
Unjust enrichment does not lie where an express binding agreement is in place.
(California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001) 94
Cal.App.4th 151, 172.) As explained ante, the contract clause cited by Singletary is
silent concerning the City performing the construction work and/or seeking
reimbursement. Because Singletary has not cited evidence of a binding agreement
concerning the City’s performance of construction work and/or concerning the City
seeking reimbursement, his theory related to unjust enrichment is unpersuasive—
because one could possibly find there is not a contract on this point, unjust enrichment
could perhaps be applicable.
Also, the clause this court raised on its own does not address the situation created
in this case—where the City seeks reimbursement without first notifying Singletary to
commence construction. Because the contract does not expressly include this situation,
it is possible the City could prevail on a cause of action for unjust enrichment—one
could perhaps find there is not a binding agreement for this situation thus triggering the
application of unjust enrichment. Accordingly, summary adjudication should have been
denied as to this theory.
F. VIOLATIONS AND OMISSIONS
Next, we address Singletary’s contention that the 1992 agreement is
unenforceable because it (1) violates the Subdivision Map Act; (2) violates the Colton
Municipal Code; and (3) omits statutorily mandated terms.
44
1. REIMBURSEMENT
a) Law
(1) Subdivision Map Act
The Subdivision Map Act provides, “There may be imposed by local ordinance a
requirement that improvements installed by the subdivider for the benefit of the
subdivision shall contain supplemental size, capacity, number, or length for the benefit
of property not within the subdivision, and that those improvements be dedicated to the
public. Supplemental length may include minimum sized offsite sewer lines necessary
to reach a sewer outlet in existence at that time.” (Gov. Code, § 66485.)
It further provides, “In the event of the installation of improvements required by
an ordinance adopted pursuant to [Government Code] Section 66485, the local agency
shall enter into an agreement with the subdivider to reimburse the subdivider for that
portion of the cost of those improvements, including an amount attributable to interest,
in excess of the construction required for the subdivision.” (Gov. Code, § 66486.)
Additionally, the Subdivision Map Act reflects, “In order to pay the costs as
required by the reimbursement agreement, the local agency may: [¶] . . . [¶]
(c) Establish and maintain local benefit districts for the levy and collection of such
charge or costs from the property benefited.” (Gov. Code, § 66487.)
(2) Colton Municipal Code
The Colton Municipal Code reads, “Pursuant to Section 66485 of the Subdivision
Map Act, the Subdivider May be required to install Improvements for the benefit of the
Subdivision which May contain supplemental size, capacity or number for the benefit of
45
Property not within the Subdivision as a condition precedent to the Approval of a
Subdivision or Parcel map, and thereafter to dedicate such Improvements to the public.
However, the Subdivider Shall be reimbursed for that portion of the cost of such
Improvements equal to the difference between the amount it would have cost the
Subdivider to install such Improvements to serve the Subdivision only and the actual
cost of such Improvements pursuant to the provisions of the Sections [sic] 66486 and
66487 of the Subdivision Map Act. Such reimbursement Shall be accomplished by the
provisions of an agreement by and between the Subdivider and the City.” (Colton
Muni. Code, § 16.56.020.)
b) Discussion
Singletary contends that because the 1992 agreement does not include a
provision for reimbursing him for public improvements, the agreement violates the
Subdivision Map Act and the Colton Municipal Code, which require terms related to
reimbursement.
The 1992 agreement includes language about offsite improvements. The offsite
improvements relate to water and sewer improvements. Therefore, arguably, Singletary
agreed to perform work that would benefit property not within the subdivision—it is
also possible the offsite improvements would only benefit the subdivision, but both
interpretations are possible from the contract language. As a result, we will assume the
reimbursement rules are applicable.
46
Notably, the 1992 agreement contains the following clause: “Singletary or
successors in interest agree to the formation of a public improvement utility district for
permanent water and sewer system, and agree to be a party to the public improvement
utility district which includes Singletary or successors [in] interest paying a
proportionate share of the public improvement utility district costs.”
Thus, it appears from the 1992 agreement that Singletary and the City chose for
Singletary to pay only his portion of the improvement costs via the establishment and
maintenance of a “local benefit district[] for the levy and collection of such charge or
costs from the property benefited.” (Gov. Code, § 66487, subd. (c).) Because the
agreement includes language about Singletary only paying his portion of the costs, we
conclude the rules requiring a reimbursement clause were not violated.
2. NECESSARY IMPROVEMENTS
a) Law
As set forth ante, the Subdivision Map Act provides, “There may be imposed by
local ordinance a requirement that improvements installed by the subdivider for the
benefit of the subdivision shall contain supplemental size, capacity, number, or length
for the benefit of property not within the subdivision, and that those improvements be
dedicated to the public. Supplemental length may include minimum sized offsite sewer
lines necessary to reach a sewer outlet in existence at that time.” (Gov. Code, § 66485,
italics added.)
47
b) Discussion
Singletary contends the 1992 agreement violates Government Code section
66485 because the supplemental length for the sewer lines was not necessary for
reaching the sewer outlet. In support of this assertion, Singletary cites a portion of the
1992 agreement which reads, “It is deemed unnecessary at this time for said site
improvements to be so constructed and installed as part of said parcel map.” This
language does not support Singletary’s assertion that there is a violation. The language
does not reflect that any supplemental length is unnecessary for reaching the sewer
outlet. Rather, the wording provides that none of the infrastructure improvements need
to be immediately constructed.
This interpretation is supported by the clause following the portion cited by
Singletary. The clause that follows the cited language reads, “CITY desires to continue
its right to require the installation and construction of said off-site improvements, in the
future, the exact date of which is uncertain, but it is contemplated that said
improvements may coincide with further or other development upon said real property
or property contiguous thereto or nearby, and by the formation of a public improvement
utilities district.” Thus, it appears the construction was unnecessary because no
development was occurring in the area at the time of the agreement in 1992. There is
nothing reflecting the supplemental length was unnecessary for reaching the sewer
outlet. Accordingly, we conclude Singletary’s argument fails on this point.
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3. SPECIFIED TIME
a) Contract Language
As set forth ante, the 1992 agreement reads, “CITY desires to continue its right
to require the installation and construction of said off-site improvements, in the future,
the exact date of which is uncertain, but it is contemplated that said improvements may
coincide with further or other development upon said real property or property
contiguous thereto or nearby, and by the formation of a public improvement utilities
district.” (Italics added.)
Further, the 1992 agreement provides, “Upon 30 days written notice by CITY to
Singletary or successors in interest to commence the construction and installation of
said off-site and street improvements, namely Pellisier Street improvements and on site
improvements 32 foot wide private road easement from Pellisier to remainder parcel as
shown on Parcel Map 14405 he and or they will do so in accordance with plans and
installation of said off-site improvements, he and or they will do so in accordance with
plans and specifications approved by CITY according to code, ordinances and policies
then applicable or in accordance with the aforementioned public utilities improvement
district to accomplish said construction as expeditiously as reasonably possible.”
(Italics added.)
b) Law
(1) Colton Municipal Code
The Colton Municipal Code provides, “If such Improvement work is not
completed satisfactorily before the final or Parcel map is Approved, the Subdivider
49
Shall be required to enter into an agreement with the City whereby said Improvements
Shall be completed within a specified time. To assure that such work will be
accomplished, the Subdivider Shall furnish to the City security as described in this
“‘[U]se of the word “or” in a statute indicates an intention to use it disjunctively
so as to designate alternative or separate categories.’” (Piscioneri v. City of Ontario,
supra, 95 Cal.App.4th at p. 1044.) Government Code section 66411.1, subdivision (b),
provides construction requirements need not be fulfilled until (1) a development permit
is issued; or (2) if a local ordinance is in effect, then by the time required in an
agreement between the subdivider and local agency. The statute creates alternatives by
the use of the word “or.” The local ordinance option does not take precedence over the
“development permit” option—there are two alternatives set forth in the statute.
In the 1992 agreement, Singletary and the City selected the development permit
option. The 1992 agreement reflects, “it is contemplated that said improvements may
coincide with further or other development upon said real property or property
contiguous thereto or nearby, and by the formation of a public improvement utilities
district.” This language establishes that the construction requirements will need to be
fulfilled in connection with development permits being issued, as set forth in
Government Code section 66411.1, subdivision (b). Accordingly, the 1992 contract
falls within the City’s contracting authority. Thus, summary adjudication should have
been denied as to this theory.
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G. BRIBERY CONVICTION
Singletary’s final contention in his motion for summary adjudication is that his
bribery conviction did not void the City’s preexisting obligations with respect to
constructing the infrastructure. The obligations to which Singletary refers are those
allegedly created by (1) the City’s 1991 annexation agreement, and (2) the 2005 and
2009 agreements with Riverside.
This issue does not assist with resolving a motion for summary adjudication. If
the City has obligations and those obligations are unaffected by Singletary’s bribery
conviction, then it would seem there are triable issues of fact, i.e., whether the City is
obligated to construct anything, whether the City has met its obligations, etc. Because
this issue appears to create triable issues of fact, rather than resolve them, we do not
address it further. Summary adjudication should have been denied as to this theory.
H. CONCLUSION
The trial court erred by granting Singletary’s motion for summary adjudication,
or what was effectively summary judgment. Singletary’s motion against the City’s First
Amended Cross-Complaint should have been denied.4
4 The City requests this court take judicial notice of a November 14, 2012, e- mail from the trial court that contains the trial court’s rulings on evidentiary objections. We grant the request as required by law. (Evid. Code, §§ 452, subd. (c), 453.)
53
DISPOSITION
The judgment on the City’s motion, against Singletary’s Third Amended
Complaint, is affirmed. The judgment on Singletary’s motion, against the City’s First
Amended Cross-Complaint, is reversed. The City is awarded its costs on appeal and
cross-appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.
54
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment against the plaintiff's third amended complaint, holding that the plaintiff failed to comply with the Government Claims Act, and reversed the judgment against the defendant's cross-complaint, finding that the trial court erred in its summary adjudication rulings regarding the 1992 contract.
Issues
Whether the plaintiff was required to petition the court for leave to file an untimely government claim under Government Code section 946.6.
Whether the trial court erred in its summary adjudication of the parties' respective claims regarding the 1992 contract and the City's cross-complaint.
Whether the plaintiff was a third-party beneficiary to agreements between the City and other entities.
Disposition. Affirmed in part and reversed in part.
Quotations verified verbatim against the opinion
“We affirm the trial court’s ruling on the City’s motion against Singletary’s TAC. We reverse the trial court’s ruling on Singletary’s motion against the City’s FACC.”