Opinion
G054139 c/w G054846
08-30-2018
FUTURE DB INTERNATIONAL, INC., Plaintiff and Respondent, v. CITY OF IRVINE, Defendant and Appellant.
Rutan & Tucker, Jeffrey Melching, Todd O. Litfin, and Joseph D. Larsen, for Defendant and Appellant. Lanak & Hanna, Craig P. Bronstein and Mac W. Cabal, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00743698) OPINION Appeal from a judgment of the Superior Court of Orange County, John C. Gastelum, Judge. Reversed. Rutan & Tucker, Jeffrey Melching, Todd O. Litfin, and Joseph D. Larsen, for Defendant and Appellant. Lanak & Hanna, Craig P. Bronstein and Mac W. Cabal, for Plaintiff and Respondent.
The City of Irvine (City) appeals from the trial court's judgment granting Future DB International, Inc.'s (FDBI) petition for writ of mandate awarding FDBI its bid preparation costs. The City argues the court erred because FDBI did not comply with the Government Claims Act (the Act) (Gov. Code, § 810 et seq., all further statutory references are to the Government Code). We agree and reverse the judgment.
FACTS
I. Facts
In March 2014, FDBI and six other firms submitted bids to the City for the Trabuco/Monroe Intersection and Traffic Signal Improvement Project, CIP No. 331302, HSIPL 5410(081), Bid No. 14-1054 (Project). The following month, the City rejected all seven bids, two of which it deemed nonresponsive. The City determined the lowest bidder failed to submit required documentation, and that firm attempted to withdraw its bid. The City concluded the second lowest bidder, FDBI, "[was] a newly developed firm with principal officers of the bankrupt firm of [FTR International, Inc. (FTR)] who was the contractor that abandoned construction of the Jamboree/I-5 Improvement Project in 2013, a few months after the award of that contract." (Italics added.) The City did not find FDBI nonresponsive, despite the fact it answered "N/A" to question No. 9, which stated, "List projects of a similar nature your firm has completed within the last five years including contract amount, type of project, date of completion, name of client, contact person, and current telephone number." (Italics added.)
The same month, the City again invited bids for the Project. The notice inviting bids included a form requiring the bidder to demonstrate its competency. The form stated, "Failure of the [b]idder to provide requested information in a complete . . . manner shall be considered non-responsive resulting in rejection of the bid." The form included the same question No. 9.
In May 2014, FDBI again submitted a bid for the Project. In question Nos. 3 and 4, FDBI stated it operated under its present business name and been a contractor for two years. Question No. 8 requested a list of similar projects the bidder was "currently" constructing, and FDBI provided two projects. In response to question No. 9, completed similar projects within the previous five years, FDBI answered the same as in its first bid, "N/A."
The City determined the lowest bidder was FDBI and the second lowest bidder was Roadway Engineering & Contracting, Inc. (Roadway). However, on June 3, 2014, the City notified FDBI by letter its bid was nonresponsive because it failed to properly respond to question No. 9 and thus the City could not determine whether FDBI "possesse[d] adequate experience to" complete the Project. The City gave FDBI one week to respond if it disagreed.
On June 9, 2014, FDBI sent the City a letter disputing its bid was nonresponsive. FDBI stated that because it was a new company and had not "completed" any similar projects, it answered "N/A" to question No. 9, which was "standard practice" when required to provide information that did not exist. Additionally, FDBI provided information regarding the two projects it was constructing and two other projects where it was the apparent low bidder.
On June 23, 2014, the City again notified FDBI its bid was nonresponsive and "N/A" could mean various things, leaving the City to "guess" whether the information was not applicable or not available. The City concluded FDBI's response gave it an advantage over other bidders. The City notified FDBI it awarded the Project to Roadway. The next day, the City notified Roadway it was the successful bidder because FDBI's bid was nonresponsive.
A few days later, FDBI protested award of the Project to Roadway. In its letter, FDBI stated both Roadway and Hillcrest Contracting, Inc., the third lowest bidder, used "N/A" numerous times in their bids. A couple weeks later, the City notified FDBI its protest was untimely, any protest was due seven weeks earlier, and Roadway's bid was responsive. FDBI and the City traded letters concerning whether FDBI's bid protest was timely.
About the same time, Bisher Aljazzar, FDBI's president, spoke with a City purchasing agent who questioned him about his relationship with FTR, the bankrupt firm that failed to complete a 2013 City project. Aljazzar worked for FTR for a year and was laid off. After that call, Aljazzar learned from the City's documents he obtained through a public records request that the City recommended debarment proceedings against FDBI.
On August 12, 2014, FDBI, through its counsel, sent an 11-page letter to the City demanding the City award the Project to FDBI. FDBI threatened legal action if the City did not comply. A few weeks later the City's attorney responded via letter that FDBI's bid was nonresponsive and the bid protest was untimely. After FDBI's efforts to schedule a hearing with the City proved unsuccessful, FDBI pursued legal action. II. Procedural History
About the time Roadway was to begin work on the Project, September 2014, FDBI filed a petition for writ of mandate requesting the trial court order the City to rescind award of the Project to Roadway and instead award the Project to FDBI. FDBI also sought monetary damages to be proven at trial. A couple weeks later, the trial court denied FDBI's ex parte application for a temporary restraining order to prohibit the City from beginning work on the Project. The City later filed an answer arguing inter alia FDBI failed to comply with the Act.
We note that because the City may reject all bids, "no right exists in the lowest bidder to compel the acceptance of [its] bid by a writ of mandate. [Citations.]" (Rubino v. Lolli (1970) 10 Cal.App.3d 1059, 1062.)
In its application, FDBI asserted that if the trial court denied extraordinary relief, it would be limited to recovering its bid preparation costs. This was the first time FDBI mentioned bid preparation costs.
At a January 2015 case management conference, the court set a trial date, estimated to be one day, in July 2015. The City conducted discovery, including deposing Aljazzar, and filed a motion to compel discovery. In that motion the City asserted that if FDBI was entitled to any relief (the Project was completed) it was bid preparation costs, which it disputed, because FDBI failed to comply with the Act.
In July 2015, the court continued the trial date until October 2015 and set a briefing schedule. After the parties submitted their briefs, the court continued the trial date twice.
On the date set for trial, May 31, 2016, without a hearing or argument, the trial court issued an order finding the City abused its discretion by finding FDBI's bid for the Project nonresponsive. The court explained the City's reason for finding FDBI nonresponsive was a pretext for finding it nonresponsible because "N/A" is a recognized term in construction industry custom and practice. The court continued the matter for briefing on the issue of whether the City must conduct a responsible bidder hearing or award FDBI bid preparation costs.
The parties filed supplemental briefs, acknowledging the responsible bidder issue was moot because the Project was complete. In its brief, FDBI asserted it was entitled to bid preparation costs in the amount of $61,698, and lost profits. The City contended FDBI was not entitled to bid preparation costs because it failed to comply with the Act and if it was entitled to those costs, FDBI's claimed costs were excessive. The City also argued FDBI was not entitled to lost profits (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 316 (Kajima)).
In a minute order, the court stated the parties' briefs were not responsive to the court's previous order and it ordered additional supplemental briefing on the amount of bid preparation costs and lost profits. The parties filed additional supplemental briefs.
After the court posted its tentative ruling, it heard argument on August 16, 2016. The court explained "this was an equitable action all the way through[]" and "[i]t didn't change into anything else until the court [mentioned] the bid costs." The court opined, "I don't think we need compliance with the . . . Act at that point." The court adopted its tentative ruling as its final ruling. The court awarded FDBI bid preparation costs in the amount of $31,403. Two days later the court issued a nunc pro tunc order. The City filed a notice of appeal from the May 31, 2016, and August 16, 2016, orders, and this court assigned the matter case No. G054139.
On February 7, 2017, the court entered judgment for FDBI in the amount of $38,246.40, which included prejudgment interest and costs. The City also filed a notice of appeal from the judgment, which included the May 31, 2016, and August 16, 2016, orders, and this court assigned the matter case No. G054846. We granted the parties stipulation to consolidate case No. G054846 with case No. G054139 for all purposes.
DISCUSSION
Section 905 requires the presentation of "all claims for money or damages against local public entities," subject to exceptions not relevant here. "[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon . . . or has been deemed to have been rejected . . . ." (§ 945.4.) "'[T]he filing of a claim for damages "is more than a procedural requirement, it is a condition precedent to plaintiff's maintaining an action against defendant . . . ."' [Citations.]" (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240; § 945.4 [necessity of written claim before suit for money or damages].) "' Thus, under these statutes, failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.' [Citation.]" (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738 (City of Stockton); § 911.2 [time limits])
"The purpose of the claims statutes is not to prevent surprise, but 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.] It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.' [Citation.] The claims statutes also 'enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.' [Citations.]" (City of Stockton, supra, 42 Cal.4th at p. 738.)
Here, there is no dispute FDBI failed to present a claim using the City's "Claim For Damages" form for bid preparation costs. (§ 910.4; Irvine Mun. Code, § 2-7-202.) Thus, FDBI's damage claim for bid preparation costs was barred by its failure to file a section 945.4 claim. (California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 590-593 (CSEA); TrafficSchoolOnline, Inc. v. Clarke (2003) 112 Cal.App.4th 736, 738, 741 (TSO).)
But that does not end our inquiry because FDBI offers the following justifications to support the trial court's bid preparation costs award: (1) The Act does not apply to writs of mandate; (2) Its August 12, 2014, letter, to the City was a claim and thus it complied with the Act; and (3) Estoppel prevents the City from benefitting after it misled FDBI. We will address each in turn. I. Writs of Mandate
FDBI asserts the Act does not apply to writs of mandate seeking incidental damages. Not so.
TSO, supra, 112 Cal.App.4th 736, is instructive. In that case, plaintiff, an online traffic school, sought to be an approved provider with defendant, a court system, but defendant denied plaintiff's request. (Id. at p. 738.) Plaintiff filed an amended writ of mandate seeking inter alia approval as a provider. (Ibid.) Plaintiff also pleaded a cause of action for damages caused by defendant's refusal to select it as an approved program. (Ibid.) During pendency of the writ proceeding, defendant selected plaintiff as an approved program, and the trial court granted defendant's summary judgment motion on the equitable claims because they were moot. (Ibid.) However, the court granted defendant's summary judgment motion regarding the monetary claim because plaintiff failed to comply with the Act. (Ibid.)
The TSO court affirmed, based on the plain language of section 945.4. (TSO, supra, 112 Cal.App.4th at pp. 739-741, 743.) After quoting section 945.4's language, the court stated the following: "As can be noted, . . . section 945.4 explicitly states 'no' damage suit may be pursued unless there is compliance with the claim statutes. As we noted in connection with a land use statute, which used the word 'no,' '"No" means no.' [Citations.] The only commonsense meaning of the word 'no' is just that. Since an incidental damage claim seeks monetary relief, the express language of . . . section 945.4 requires presentation of a claim as a precondition to the filing of suit. The language in . . . section 945.4 contains no exception for 'incidental damages.' [Citations.]" (TSO, supra, 112 Cal.App.4th at p. 741.) The court added the Act's stated purposes are furthered by requiring a party to first file a claim for incidental damages before filing suit. (Id. at p. 742.)
In CSEA, supra, 124 Cal.App.4th 574, another panel of this court, relied on TSO, supra, 112 Cal.App.4th 736, to reject plaintiffs' claim for lost wages as reclassified college district employees against defendant, a college district. (CSEA, supra, 124 Cal.App.4th at pp. 592-593.) Plaintiffs filed a writ of mandate seeking reclassification and lost wages because as substitute or short term employees they worked more than the threshold of 75 percent of the year. (Id. at pp. 581-582.) The trial court denied the petition, ruling plaintiffs were not entitled to reclassification, or as relevant here lost wages because they did not comply with the Act. (Ibid.) Relying on TSO, supra, 112 Cal.App.4th 736, the CSEA court held that although plaintiffs were not required to provide defendant notice pursuant to section 905, plaintiffs were required to provide defendant notice pursuant to section 935 and defendant's policy pursuant to that section. (CSEA, supra, 124 Cal.App.4th at pp. 589-590.) The court stated, "The statutory purpose underlying the notice provisions is furthered whether a claim for monetary relief is part of an equitable action or stands on its own. To carve out a judicial exception for incidental damages would frustrate the legislative intent underlying . . . section 935." (CSEA, supra, 124 Cal.App.4th at pp. 592-593.) The court held plaintiffs were prohibited from obtaining lost wages and other damages. (Id. at p. 593.)
Contrary to FDBI's claim otherwise, TSO and CSEA stand for the proposition that a plaintiff who files a writ of mandate seeking to require defendant to perform an act and also asserts a claim for monetary damages, incidental or not, must first file a claim under the Act even when the act cannot be performed. (CSEA, supra, 124 Cal.App.4th at pp. 592-593; TSO, supra, 112 Cal.App.4th at p. 741; but see Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1163-1164 [split of authority concerning whether claims for incidental money damages subject to Act and discussing cases].) FDBI filed a petition for writ of mandate, which sought performance of an act and monetary damages to be proved at trial. The Act's purpose, to enable the City to investigate the claim and settle it, if appropriate, without the expense of litigation was abrogated. Thus, FDBI should have filed a claim with the City for bid preparation costs pursuant to the Act.
Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425 (Great West Contractors), another case from this court, is instructive on how a claimant may proceed in a situation similar to the facts here. In that case, plaintiff, who was the lowest bidder on a school modernization project but was not awarded the bid, filed a writ petition against defendant school district. (Id. at pp. 1431, 1434-1435.) Later, plaintiff sought to amend the petition to state a claim for damages and submitted a formal claim for money damages with defendant. (Id. at pp. 1440-1441.) The trial court denied the request to amend. The Great West Contractors court reversed and remanded with directions to allow plaintiff to amend its petition to state a claim for bid preparation costs pursuant to Kajima, supra, 23 Cal.4th 305. (Great West Contractors, supra, 187 Cal.App.4th at p. 1460.) Here, as we explain above, FDBI should have filed a claim with the City before it filed its writ petition. Alternatively, after filing its writ petition, FDBI should have filed a claim with the City and sought to amend its writ petition to allege compliance with the Act.
FDBI claims its writ petition did not mention bid preparation costs because the costs "had not yet ripened" and the City cannot assert the Act as a defense because it did not challenge the pleading by way of demurrer or other pleading. As to its first claim, the bid preparation costs were certain because FDBI filed its writ petition four months after it filed its bid and thus there were no continuing damages. (See Amador Valley Investors v. City of Livermore (1974) 43 Cal.App.3d 483, 489-490 [filing of claim may not be postponed after date when damage becomes discoverable unless damage continuing or repeated].) With respect to its second claim, the City did not waive FDBI's "alleged pleading defect." The City asserted FDBI failed to comply with the Act in its answer, and throughout its briefs.
FDBI relies on Kajima, supra, 23 Cal.4th 305, to argue that when equitable relief is no longer available, an award of monetary damages, i.e., bid preparations costs, is proper under a promissory estoppel theory. We agree with FDBI that Kajima stands for that proposition. (Id. at pp. 308, 313, fn. 1, 315.) But Kajima did not discuss, or hold, the Act or its requirement that a party must file a government claim before seeking monetary damages are abrogated when a party filed a writ of mandate seeking both equitable and monetary relief.
FDBI also cites Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1493 (Canova), to assert the fundamental issue is whether the recovery of monetary damages was the "primary purpose" of the claim. But Canova also cited TSO, supra, 112 Cal.App.4th at page 742, to state, "In any event, the government claim requirement applies to any monetary claim even if it is merely incidental to other relief sought."
FDBI also relies on C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9 (C & K), for the proposition the prayer for relief is not conclusive. C & K involved the right to a jury trial, and is inapposite.
Finally, FDBI cites to M.G.M. Construction Co. v. Alameda County (N.D.Cal. 1985) 615 F.Supp. 149, 151 (M.G.M.), for the proposition the Act does not apply where the primary relief sought was declaratory relief even though incidental money damages were also sought. California courts are not bound by federal district courts and courts of appeals. (People v. Uribe (2011) 199 Cal.App.4th 836, 875 [lower federal court authority persuasive not binding].) Additionally, M.G.M. predated CSEA and TSO, and we find their reasoning more persuasive. The Act applies to writs of mandate when the petitioner also seeks monetary damages, incidental or not. II. FDBI's August 12, 2014, Letter & Bid Protest
FDBI contends that if the Act does apply to writs of mandate, it complied with the Act because of its August 12, 2014, letter, including its attachments, and its bid protest. To the extent this argument is preserved for appellate review, it fails.
Generally, a party may not raise a new contention on appeal because it is unfair to the party's opponent and the court. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.) In the trial court, FDBI did not argue this letter or the bid protest were its claim, and thus it forfeited appellate review of these contentions. In any event, its contentions are meritless.
"'Under the doctrine of substantial compliance the court may conclude a claim is valid if it substantially complies with all of the statutory requirements for [a] valid claim even though it is technically deficient in one or more particulars.' [Citation.] 'The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation. [Citations.] The doctrine of substantial compliance is normally raised where a timely but deficient claim has been presented to the public entity.' [Citation.]" (Olson v. Manhattan Beach Unified School Dist. (2017) 17 Cal.App.5th 1052, 1060, italics added.)
Section 910 provides the information a claimant must include in a government claim. That section provides the claim "shall show all of the following: [¶] (a) The name and post office address of the claimant. [¶] (b) The post office address to which . . . notices [are] to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the . . . injury, damage or loss incurred . . . . [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case."
The threshold question is whether FDBI filed a defective claim, in which case the doctrine of substantial compliance can be applied, or whether it filed no claim, in which case it cannot invoke the doctrine of substantial compliance. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 33 (Dilts).) In Dilts, the court held a series of plaintiff's four letters to defendant did not satisfy the Act because "it would be impossible to ascertain whether a claim had been presented within" the applicable period and "which letter triggered its obligation[s]." (Id. at p. 36.) Here, FDBI primarily relies on its August 12, 2014, letter to argue it complied with the Act, but it also relies on six letters attached to that letter, including a July 11, 2014, letter stating it would "incur major damages." Based on Dilts, we conclude this series of letters did not satisfy the Act's requirements, and therefore, FDBI did not file a claim and cannot rely on the substantial compliance doctrine.
Assuming for the sake of argument the substantial compliance doctrine applied, the August 12, 2014, letter, formally demanding the City award the Project to FDBI, did not satisfy section 910's requirements. That letter did not include a general description of the damage incurred, i.e., the loss of bid preparation costs. (§ 910, subd. (d).) Additionally, that letter did not include a dollar amount or in the absence of a dollar amount, that the claim would be a limited civil case. (§ 910, subd. (f).) As we explain above, damages for bid preparation costs were not uncertain because the bid was complete three months before the letter and four months before the petition. That FDBI ended the letter with "we intend to take whatever legal action may be required to reverse the determination of the City and challenge the validity of the City's award[]" was insufficient to state a claim for bid preparation costs.
FDBI asserts its June 27, 2014, bid protest was a claim pursuant to the Act. Not so. Like FDBI's August 12, 2014, letter, the bid protest did not include the information section 910 requires, specifically a general description of the damages, i.e., bid preparation costs.
FDBI also asserts the Act's purposes were satisfied because the City had notice it was seeking bid preparation costs as evidenced by the fact the City sought discovery on this issue. As FDBI acknowledges, the Act's purpose "is to put the government on notice before legal action commences." Those are FDBI's italics, not ours. That the City had notice FDBI sought bid preparation costs after FDBI filed its petition does not serve the Act's purpose.
FDBI relies on Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276, 289, to argue requiring the claimant to present a second claim would be redundant and would only serve to protract the claims process and burden the claimant. FDBI did not present a first claim, thus its reliance on Arntz Builders misses the mark. To the extent FDBI's contention it satisfied the Act with its letter(s) is preserved for appellate review, it fails. III. Estoppel
FDBI argues the City was estopped from relying on its misconduct to assert non-compliance with the Act as the basis to deny the award of bid preparation costs. We disagree.
"A public entity may be estopped from asserting noncompliance with the claims statutes where its agents or employees have deterred the filing of a timely claim by some 'affirmative act.' (John R. v. Oakland Unified School Dist. [1989] 48 Cal.3d [438,] 445.) Estoppel as a bar to a public entity's assertion of the defense of noncompliance arises when the plaintiff establishes by a preponderance of the evidence: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and (4) relied upon the conduct to his detriment. [Citations.]" (Christopher P. v. Mojave Unified School Dist. (1993) 19 Cal.App.4th 165, 170.)
FDBI cites to no evidence, and we found none, that the City prevented or deterred FDBI from filing a claim pursuant to the Act. Therefore, estoppel is inapplicable based on the record before us.
FDBI relies on Hibbard v. City of Anaheim (1984) 162 Cal.App.3d 270 (Hibbard), to argue that where mandamus was unavailable damages are appropriate. In Hibbard, this court held no claim was required in an action against the city for return of property seized pursuant to a search warrant but subsequently suppressed, or for damages in lieu of the return. (Id. at pp. 277-278.) Relying on Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, and Holt v. Kelly (1978) 20 Cal.3d 560, the Hibbard court rejected the city's argument the proper remedy was one for money damages because some or all of the property was gone. (Hibbard, supra, 162 Cal.App.3d at pp. 276-277.) In doing so, the court stated the city could not benefit from its own misconduct. (Id. at p. 277.) FDBI's reliance on Hibbard is misplaced because the Minsky exception has not been applied outside the bailee context. (City of Stockton, supra, 42 Cal.4th at p. 743; TSO, supra, 112 Cal.App.4th at p. 742.)
Finally, relying on Konica Business Machines U.S.A., Inc. v. Regents of University of California (1988) 206 Cal.App.3d 449, 456-457, FDBI asserts the purpose of public bidding requirements is to eliminate misconduct, favoritism, and fraud. This is true, but the issue before us here is not the Public Contract Code or its important public purposes. We are concerned here with the Act and its requirements. Thus, we conclude the trial court erred by awarding FDBI bid preparation costs because FDBI did not comply with the Act.
DISPOSITION
The judgment is reversed. Appellant is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. GOETHALS, J. BEDSWORTH, J., Concurring:
I concur in the reversal here because I am compelled to by the law. But I note that the City of Irvine's conduct in this case did nothing to inspire confidence in their good faith.
/s/_________
BEDSWORTH, J.