Weinberg, Roger &Rosenfeld, Jolene Kramer and Andrea Matsuoka, for Plaintiff and Appellant. Alvarez-Glasman &Colvin, Stephen T. Owens and Christy M. Garcia, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20STCP03947 James C. Chalfant, Judge. Affirmed.
Weinberg, Roger &Rosenfeld, Jolene Kramer and Andrea Matsuoka, for Plaintiff and Appellant.
Alvarez-Glasman &Colvin, Stephen T. Owens and Christy M. Garcia, for Defendant and Respondent.
EDMON, P. J.
Appellant Construction Industry Force Account Council (CIFAC) appeals from an order dismissing its action for writ of mandate against respondent City of Huntington Park (City).
CIFAC's initial petition for writ of mandate alleged that the City awarded a contract to design and build the Salt Lake Aquatic Center Project (Project) without competitively bidding the Project in accordance with the Public Contract Code. On the same day CIFAC filed its petition, the City of Huntington Park City Council (City Council) voted to rescind the contract and competitively bid the Project. After the City bid the Project, but before any contractor was selected by the City, CIFAC filed a supplemental petition for writ of mandate alleging that the subsequent procurement process did not comply with the Public Contract Code.
All subsequent undesignated statutory references are to the Public Contract Code.
The trial court sustained the City's demurrer to the supplemental petition without leave to amend and dismissed the action without prejudice, concluding that CIFAC lacked standing and that its claims, including those in its initial writ petition, were otherwise not justiciable. We agree that CIFAC lacked standing to pursue the action-at least for now-and we therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Project
According to the allegations of CIFAC's verified petition for writ of mandate and first supplemental verified petition for writ of mandate, which we accept as true for purposes of reviewing a demurrer (International Brotherhood of Teamsters, Local 848 v. City of Monterey Park (2019) 30 Cal.App.5th 1105, 1107), CIFAC is a non-profit public benefit corporation dedicated to monitoring state and local government agencies' compliance with state law competitive bidding requirements. The City is a general law city of the State of California.
As described further herein, the trial court's dismissal order stated that, at least with respect to the City's contention that CIFAC lacked standing, the court could construe the City's demurrer as a motion for judgment on the pleadings. Regardless of whether the trial court's order sustained the City's demurrer or granted a motion for judgment on the pleadings, our standard of review is the same. (Burd v. Barkley Court Reporters, Inc. (2017) 17 Cal.App.5th 1037, 1042 [" 'The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer' "].)
On or about August 1, 2019, JT Construction Group, Inc. (JT Construction) submitted a proposal to the City to design and build the Project, a new 30,000 square-foot aquatics building, for $23,994,426.13. On August 6, 2019, the City Council approved a $24.1 million award of the Project and authorized the City Manager to negotiate a contract with a design-build contractor. On August 15, 2019, the City entered into a contract with JT Construction for design and construction of the Project.
In May 2020, CIFAC notified the City that the City may have violated the Public Contract Code in connection with the Project and requested documents related to the Project. Among other things, CIFAC asked for the official solicitation for the request for qualifications or request for proposals related to the Project; the City's evaluation criteria and ranking process for submitted proposals; the list of firms that submitted bids for the Project; and the proposals from the firms that were prequalified and evaluated for final selection.
In its July 15, 2020 response, the City stated that there were no documents responsive to CIFAC's request for the official solicitation for the Project, that the" 'City implemented an informal process whereby various firms were interviewed,'" and that JT Construction was selected. The City further stated that there were no documents responsive to its request for the City's evaluation criteria and ranking process for proposals. Last, the City stated that there was no list of firms that submitted proposals, because proposals" 'were not requested until the design build firm was selected and the contract was then negotiated.' "
On August 24, 2020, CIFAC wrote to the City asserting that the City had failed to competitively bid the Project in violation of the Public Contract Code. CIFAC demanded that the City halt work on the Project, rescind the contract with JT Construction, and competitively bid the Project in accordance with the Public Contract Code. On September 22, 2020, the City informed CIFAC it would agree to evaluate rebidding the Project and to place a temporary hold on the Project. Work on the Project stopped a few days later.
By October 23, 2020, the City hadn't informed CIFAC whether it would rebid the Project. Thus, that same day CIFAC sent a "final demand" letter to the City enclosing a copy of a draft petition for writ of mandate.
On November 3, 2020, the City informed CIFAC that the City Council" 'has directed City staff and [its counsel's] office to prepare an agenda report which will result in a re-bidding of the Project'" at the City Council's November 17, 2020 meeting. But the City Council's November 17, 2020 meeting agenda did not include any item regarding the Project. Rather, the City informed CIFAC that the City Council would only be discussing CIFAC's anticipated litigation and that the decision to rebid the Project would be on a future agenda.
II. CIFAC's initial writ petition
On December 1, 2020, CIFAC filed a petition for writ of mandate against the City pursuant to Code of Civil Procedure section 1085.
Reciting the allegations described above, CIFAC claimed the City violated sections 20162 and 22162 by failing to competitively bid the Project. Section 20162 provides that when "the expenditure required for a public project exceeds five thousand dollars ($5,000), it shall be contracted for and let to the lowest responsible bidder after notice." Similarly, section 22162, subdivision (a), provides, in relevant part, that "a local agency, with approval of its governing body, may procure design-build contracts for public works projects in excess of one million dollars ($1,000,000), awarding the contract either the low bid or the best value." According to CIFAC's petition, the City admitted "it never advertised the Project nor solicited proposals, instead choosing its contractor for the Project, JT Construction, through an 'informal' process."
CIFAC's petition further alleged that the City failed to follow the request for qualification (RFQ) and request for proposal (RFP) process described in section 22164. Section 22164 provides that the "procurement process for the design-build projects shall progress" in accordance with specific standards, including that the local agency "prepare and issue a request for qualifications in order to prequalify or short-list the design-build entities whose proposals shall be evaluated for final selection." (§ 22164, subd. (b).) The RFQs "shall" include, among other things, "the methodology that will be used by the local agency to evaluate proposals" and "the procedure for final selection of the design-build entity." (§ 22164, subd. (b)(1).) The RFQs must also require interested contractors to disclose specific categories of information described by the statute. (See § 22164, subd. (b)(3)(A)-(G).) Section 22164 further provides that "the local agency shall prepare a request for proposals that invites prequalified or short-listed entities to submit competitive sealed proposals," and that "request for proposals shall include" specific categories of information described by the statute. (§ 22164, subd. (d)(1)-(4).) Again, CIFAC's petition alleged that the City admitted failing to undertake the required RFQ and RFP process, utilizing instead its "informal process" to determine JT Construction was best qualified.
Such information includes "a listing of all of the shareholders, partners, or members" if the design-build entity is a "privately held corporation, limited liability company, partnership, or joint venture" (§ 22164, subd. (b)(3)(A)), evidence "that the members of the design-build team have completed, or demonstrated the experience, competency, capability, and capacity to complete projects of similar size, scope, or complexity" (id., subd. (b)(3)(B)), "licenses, registration, and credentials required to design and construct the project, including, but not limited to, information on the revocation or suspension of any license, credential, or registration" (id., subd. (b)(3)(C)), evidence "that the design-build entity has the capacity to obtain all required payment and performance bonding, liability insurance, and errors and omissions insurance" (id., subd. (b)(3)(D)), information "concerning workers' compensation experience history and a worker safety program" (id., subd. (b)(3)(E)), "a copy of the organizational documents or agreement committing to form the organization" if the "design-build entity is a corporation, limited liability company, partnership, joint venture, or other legal entity" (id., subd. (b)(3)(F)), and an "acceptable safety record" (id., subd. (b)(3)(G)).
Such information includes "the methodology that will be used by the local agency to evaluate proposals, whether the contract will be awarded on the basis of low bid or best value, and any other information deemed necessary by the local agency to inform interested parties of the contracting opportunity" (§ 22164, subd. (d)(1)), "[s]ignificant factors that the local agency reasonably expects to consider in evaluating proposals, including, but not limited to, cost or price and all nonprice-related factors" (id., subd. (d)(2)), the "relative importance or the weight assigned to each of the factors identified in the request for proposals" (id., subd. (d)(3)), and additional information where a "best value" selection method is used (id., subd. (d)(4)).
CIFAC's petition further alleged that even if the City "does rescind the Project award to JT Construction and re-bids the Project," the City "will violate the [Public Contract] Code's mandate to avoid creating an unfair advantage to some bidders over others if it does not strictly comply with bidding procedures and does not put affirmative safeguards in place to ensure the rebid does not favor JT Construction." As a remedy, CIFAC's writ sought an order "compelling [the City] to comply with Public Contract Code section 20160 et seq. on all pending and future projects awarded by [the City], and to further comply with section 22160 et seq. on those projects which are design-build."
III. The City bids the Project
According to CIFAC's first supplemental verified petition for writ of mandate, on December 1, 2020, the same day that CIFAC filed its initial writ petition, the City Council voted to competitively bid the Project.
Meanwhile, on January 6, 2021, the City filed its answer to CIFAC's initial writ petition and raised affirmative defenses, including mootness, ripeness, and standing. Regarding mootness, the City alleged that "the City is issuing a [RFQ] for the proposed project that is the subject of this lawsuit."
Then, on January 12, 2021, the City issued a RFQ for the Project (January 2021 RFQ), giving bidders two weeks, i.e., until January 26, 2021, to submit statements of qualifications, and one week for qualified and short-listed contractors to thereafter submit proposals. But the RFQ failed to explain the methodology the City would use to evaluate proposals or its procedure for final selection of a contractor, as required by section 22164, subdivision (b)(1). The RFQ also failed to ask bidders for certain information required by section 22164, subdivision (b)(3). The RFQ required that questions or objections related to the RFQ process, known as Requests for Information (RFIs), be submitted to the City by January 22, 2021.
According to CIFAC's supplemental writ petition, the RFQ did not ask bidders for "(1) all shareholders, partners or members who will perform work on [the] project; (2) all licenses and registration held by bidder that are required to design and construct the project (instead, it only asks for a 'current California contractor's license'); (3) bidder's workers' compensation experience history or a worker safety program; (4) bidder's organizational documents or agreement committing to form the organization; and (5) bidder's safety record." (See § 22164, subds. (b)(3)(A), (C), (E), (F) & (G).)
On January 25, 2021, one day before the close of the RFQ period, the City responded to the RFIs of interested contractors. According to CIFAC, some of the City's responses were incomplete or inadequate.
For example, in response to a request for" 'more information on what will be required during the proposal stage,'" the City stated:" 'Please refer to the RFP process for all relevant information that will be required.'" In response to a question about whether" 'previously approved construction documents [would] be made available to the proposers or selected [designbuild] entity,'" the City responded:" 'Not during the [Statement of Qualifications, or RFQ]/RFP process.'" And in response to a request to" 'define or explain exactly what work has been previously completed'" on the Project, the City responded:" 'Refer to the RFP for what work has transpired.' "
On February 1, 2021, CIFAC sent the City proposed additions to its initial writ petition. Two days later, on or about February 3, 2021, the City notified all contractors that had submitted Statements of Qualifications for the Project that they had been deemed qualified. On the same date, the City issued a RFP to the qualified contractors (February 2021 RFP), extending the previously identified deadline for proposals by an extra week.
IV. CIFAC's supplemental writ petition
CIFAC filed a first supplemental verified petition for writ of mandate on May 14, 2021 (supplemental petition). The supplemental petition included the additional allegations described above regarding the City's January 2021 RFQ and February 2021 RFP.
According to the supplemental petition, despite the City's January 2021 RFQ and February 2021 RFP, the City remained in violation of the Public Contract Code. CIFAC first alleged that, as described above, the January 2021 RFQ did not meet all the requirements of section 22164, subdivision (b).
CIFAC further alleged that the City failed to implement "affirmative safeguards" to ensure "the re-bid does not favor JT Construction." In particular, CIFAC alleged that the City's January 2021 RFQ and February 2021 RFP placed requests for "qualifications and proposals on an abbreviated timeline" advantaging JT Construction, which had "already prepared a proposal for the Project" and had "performed work on the Project site." According to CIFAC, the January 2021 RFQ and February 2021 RFP process was "unusually short," and the City "may be rushing" the process to favor JT Construction. Additionally, CIFAC alleged that the City's answers to the RFIs were deficient in several respects, also advantaging JT Construction. Specifically, the City "refus[ed] to release all previously approved construction documents," "refus[ed] to provide clear information about what will be required at the RFP stage," and "refus[ed] to directly answer questions about what work has already been completed on the Project."
According to the supplemental petition, CIFAC had no adequate remedy at law to compel the City to comply with the requirements of sections 20162, 22162, and 22164 "for this Project and any re-bid of this Project," and without the relief CIFAC sought the City "will continue to informally award future construction projects and ignore the provisions of the Public Contract Code that require competitive bidding and certain RFQ and RFP processes in the case of a design-build project."
V. Demurrer proceedings A. The City's demurrer
The City demurred to the supplemental petition on the basis of justiciability and requested the court to take judicial notice of the minutes of the City Council's June 1, 2021 meeting. Importantly, those minutes indicate the City Council voted on June 1, 2021 to approve publication and solicitation of RFPs for the Project (June 2021 RFP) a second time, thus superseding the February 2021 RFP.
The City first contended that CIFAC's claim the City "may be rushing" the January 2021 RFQ and February 2021 RFP process was unripe. It emphasized that whether the City was favoring JT Construction was speculative and that CIFAC would not suffer any hardship by "allow[ing] the re-bidding process to unfold."
Next, it contended that aspects of CIFAC's petition were moot. The City argued that CIFAC's initial claim that the City awarded the contract to JT Construction in August 2019 without soliciting proposals became moot due to the subsequent RFQ and RFP process. It further argued that any alleged defects with the January 2021 RFQ and February 2021 RFP became moot once the RFQ deadline passed, all interested contractors were deemed qualified, and the City voted to solicit new RFPs in June 2021.
Last, citing these same reasons, the City also argued that CIFAC had no beneficial interest in the case and thus lacked standing. It emphasized that CIFAC would gain no benefit from issuance of the writ or suffer any detriment from its denial, as the original contract with JT Construction had been rescinded, the January 2021 RFQ period had passed, and the February 2021 RFP had been superseded by the June 2021 RFP. Based on the same arguments, the City also contended CIFAC lacked public interest or "citizen" standing.
B. CIFAC's opposition
In opposition, CIFAC argued that because the City answered the standing allegations in the initial petition, the City was barred from challenging those same allegations in a demurrer to the supplemental petition.
Regarding the City's mootness arguments, CIFAC argued that its claims were not moot because the City had not cured the alleged deficiencies in the January 2021 RFQ. CIFAC further argued that the City had shown "itself to be unlikely to comply with the mandates of the Public Contract Code going forward," and that an order requiring the City to comply with the Public Contract Code would provide "effectual relief by forcing [the City] to follow the law on this Project and other projects." To the extent its claims were moot, CIFAC argued that exceptions to the mootness doctrine applied because the controversy was likely to recur, and because the case presented a matter of continuing public interest.
CIFAC raised similar arguments in response to the City's contention that CIFAC's claims were unripe.
In response to the City's standing argument, CIFAC contended it had a beneficial interest for two reasons: It was an organization dedicated to monitoring compliance with the Public Contract Code, and its beneficiaries included contractors who "would have sought the opportunity to bid on the" Project. It also argued that the allegations in the supplemental petition were sufficient to confer public interest standing because the Public Contract Code's competitive bidding requirements directly benefit the public.
C. The City's reply
The City argued in reply that it was not barred from raising its justiciability arguments because jurisdictional challenges can be raised at any time. In addition to reiterating its arguments that the February and June 2021 RFPs had rendered CIFAC's claims moot, the City further contended that the exception to mootness for a recurring controversy did not apply because the City had already competitively bid the Project.
D. Trial court ruling
On July 13, 2021, the trial court sustained the City's demurrer without leave to amend. First, the court agreed that portions of CIFAC's petition were moot. It concluded the allegation regarding the City's award of the Project contract in August 2019 to JT Construction without bidding became moot when the City later rescinded the contract. It further concluded the allegation that the January 2021 RFQ failed to adhere to section 22164, subdivision (b) became moot once all interested contractors were deemed qualified. Last, it concluded the alleged defects in the February 2021 RFP process became moot due to the superseding June 2021 RFP. The court also determined that no exceptions to the mootness doctrine applied.
The court also ruled that CIFAC's claims were unripe to the extent it sought relief in connection with a future contracting decision. Noting that "[n]o contractor has been selected nor any contract awarded for the Project and the City Council required a new RFP on June 1, 2021," the court concluded that "any allegation of preferential treatment [was] purely speculative." The court also found that CIFAC would not suffer any hardship without court intervention.
Finally, the court agreed that CIFAC lacked standing to pursue its action. Regarding CIFAC's procedural argument that the City was barred from raising standing in its demurrer to the supplemental petition, the court noted it could construe the demurrer as a motion for judgment on the pleadings. The court further concluded that CIFAC lacked a beneficial interest in the case because it would not receive any benefit from challenging either the rescinded contract or the superseded February 2021 RFP. Based on those same considerations, the court rejected CIFAC's claim that it had public interest standing.
The court issued an order of dismissal on July 29, 2021, dismissing the action without prejudice. CIFAC filed a notice of appeal on October 4, 2021.
I. Timeliness of appeal
We first address the timeliness of CIFAC's notice of appeal. Although no party raised the issue, we raised it sua sponte and asked for supplemental briefs. (See Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849 ["[B]ecause the timeliness of an appeal poses a jurisdictional issue, we must raise the point sua sponte."].)
The record indicates that on July 29, 2021, the same date the trial court issued its order of dismissal, the clerk mailed a filed-endorsed copy of the order to counsel for the parties. The clerk's transcript includes a certificate of mailing dated July 29, 2021, stating that a deputy court clerk "served the Order -Dismissal upon each party or counsel" by mail. On August 3, 2021, the City served CIFAC with a notice of entry of judgment, enclosing a copy of the court's order of dismissal. CIFAC filed its notice of appeal on October 4, 2021.
The timeliness of CIFAC's notice of appeal is governed by California Rules of Court, rule 8.104. Subsection (a)(1) provides that "[u]nless a statute or rules 8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must be filed on or before the earliest of: (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment." (Rule 8.104(a)(1)(A)-(C).) "Service under (1)(A) and (B) may be by any method permitted by the Code of Civil Procedure ...." (Rule 8.104(a)(2).) "As used in (a) . . . 'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(e).) An order of dismissal is an appealable order. (Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1011, fn. 2 ["the order of dismissal was a final, appealable order"].)
All subsequent references to rule are to the California Rules of Court.
CIFAC did not file its notice of appeal within 60 days of the court clerk's service of the filed-endorsed copy of the order of dismissal. Instead, it filed its notice of appeal 60 days from the City's later service of the notice of entry of judgment. Hence, if the deadline for CIFAC's notice of appeal was triggered by the clerk's service of the filed-endorsed copy of the order of dismissal, its notice of appeal, filed more than 60 days later, is untimely.
In its supplemental brief, CIFAC emphasizes that rule 8.104(a)(1)(A) applies if" 'the superior court clerk serves on the party filing the notice of appeal . . . a filed-endorsed copy of the judgment, showing the date [it] was served.'" It argues that the rule does not apply because the order of dismissal did not show the date it was served and did not incorporate or mention the certificate of mailing. It further argues that the order of dismissal and certificate of mailing should be treated as separate documents because the order of dismissal is on a one-page form designated "LACIV 140" on the bottom, whereas the certificate of mailing does not have the same designation, and the two documents are not paginated consecutively.
Our Supreme Court addressed the requirements of former rule 8.104 in Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 (Alan).) There, the superior court clerk mailed the parties two documents in a single envelope-a file-stamped copy of a statement of decision denying class certification, and a minute order without a file stamp which described the issuance of the statement of decision and showed the date it and the statement of decision were mailed. (Alan, at p. 898.) Alan held that the clerk's mailing did not trigger former rule 8.104(a)(1) because the file-stamped statement of decision was not an appealable order, and the appealable minute order, which showed the date it was mailed, was not file-stamped. (Alan, at pp. 901902.)
The former version of rule 8.104 at issue in Alan has since been amended, but not in a manner that is material here. The version of rule 8.104(a) at issue in Alan provided that an appeal had to be filed" '[¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment.'" (Alan, supra, 40 Cal.4th at p. 898.) That the current version of rule 8.104(a) refers to "serves" instead of "mails" (see rule 8.104(a)(1)(A)), and "filed-endorsed" instead of "file-stamped" (see rule 8.104(a)(1)(A), (B)), is not relevant here.
Relevant here, Alan instructed that former rule 8.104(a)(1) "requires a single document-either a 'Notice of Entry' so entitled or a file-stamped copy of the judgment or appealable order-that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed." (Alan, supra, 40 Cal.4th at p. 905.) Alan further explained as follows: "[W]e see no reason why the clerk could not satisfy the single-document requirement by attaching a certificate of mailing to the file-stamped judgment or appealable order, or to a document entitled 'Notice of Entry.' Obviously a document can have multiple pages. But the rule does not require litigants to glean the required information from multiple documents or to guess, at their peril, whether such documents in combination trigger the duty to file a notice of appeal. 'Neither parties nor appellate courts should be required to speculate about jurisdictional time limits.'" (Ibid.)
In rejecting the appellate court's suggestion that the documents at issue could be construed as a single document for purposes of former rule 8.104(a)(1), Alan noted that the "minute order does not purport to incorporate the statement of decision" and "describ[ed] itself as 'Page 1 of 1.'" (Alan, supra, 40 Cal.4th at p. 905.) Alan further noted as follows: "Nor, if it mattered, does the clerk appear to have attached the two documents. Alan maintains he received two separate, unattached documents from the clerk, and Honda does not now argue to the contrary." (Ibid.)
As CIFAC points out, M'Guinness v. Johnson (2015) 243 Cal.App.4th 602 (M'Guinness) applied Alan in circumstances like this case. There, the trial court issued an order that was "file-endorsed September 20, 2013. The record indicate[d] a corrected proof of service by the trial court dated September 20, 2013, reflecting that the clerk mailed copies of the order to all counsel on that date." (Id. at p. 610.) After discussing Alan, the Court of Appeal noted that the trial court's order "did not 'show[ ] the date [it] was served,'" and "conclude[d] the file-endorsed copy of the order cannot be read in conjunction with the separate document-the 'corrected proof of service'-to satisfy the requirements of [former] rule 8.104(a)(1)(A)." (Id. at p. 612.)
That the proof of service was "corrected" played no part in the court's analysis.
Again, the former version of rule 8.104 at issue in M'Guinness has since been amended, but not in a manner that is material here.
Here, the order of dismissal does not mention the certificate of mailing or otherwise appear to incorporate it. And the record does not establish that the certificate of mailing was attached to the order of dismissal, even assuming they were mailed together in the same envelope to counsel for the parties. Thus, following Alan and M'Guinness, and with due regard for the" 'the well-established policy, based on the remedial character of the right to appeal, of according that right in doubtful cases "when such can be accomplished without doing violence to applicable rules" '" (Alan, supra, 40 Cal.4th at p. 901), we conclude that the time for CIFAC to file its notice of appeal was not triggered by the court clerk's mailing of a filed-endorsed copy of the order of dismissal. Rather, the time for CIFAC to file its notice of appeal was triggered by the City's service of the notice of entry of judgment. CIFAC's appeal is therefore timely.
Counsel for the City informed us at oral argument that the copy of the order of dismissal he received from the clerk was stapled to the certificate of mailing. We do not rely on that statement, as" 'statements by counsel [at oral argument] are not evidence and do not amount to an admission or stipulation of fact." (In re D.P. (2023) 14 Cal.5th 266, 281.)
II. Standard of review
" 'On review from an order sustaining a demurrer, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose."' " (International Brotherhood of Teamsters, Local 848 v. City of Monterey Park, supra, 30 Cal.App.5th at pp. 1108-1109 [petition for writ of mandate and complaint for declaratory relief]; SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1051 (SJJC Aviation Services) ["Our review is governed by settled standards, which apply equally whether a demurrer challenges a complaint or a petition."].)
Although it is "an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment," the "burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action." (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 226.) CIFAC does not address the grounds for a proposed amendment that would cure the standing issues discussed herein. We therefore do not address whether it was an abuse of discretion for the trial court to sustain the City's demurrer without leave to amend.
" 'We deem to be true all material facts that were properly pled, as well as all facts that may be inferred from those expressly alleged.'" (International Brotherhood of Teamsters, Local 848 v. City of Monterey Park, supra, 30 Cal.App.5th at p. 1109.) "We also consider matters that may be judicially noticed." (SJJC Aviation Services, supra, 12 Cal.App.5th at p. 1052.) "We do not, however, assume the truth of 'mere contentions or assertions contradicted by judicially noticeable facts.'" (Ibid.)
Our standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer, i.e., we "[t]reat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein." (Burd v. Barkley Court Reporters, Inc., supra, 17 Cal.App.5th at p. 1042.)
CIFAC contends the trial court erred in deciding its claims were moot and unripe and that it lacked standing. As discussed below, we conclude that CIFAC lacked standing, at least at the stage of the procurement process at issue here, and thus affirm the trial court's decision on that basis. (See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 809 ["Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff."].) We therefore need not separately consider whether CIFAC's claims are moot or unripe.
Before we address CIFAC's standing contentions, we address its argument that the City was procedurally barred from raising standing.
A. The City was not barred from raising standing in response to the supplemental petition
According to CIFAC, because its initial petition contained its standing allegations and the City answered that petition instead of responding with a demurrer, the City could not challenge CIFAC's standing in its demurrer to the supplemental petition. As CIFAC puts it, the City was "stuck with its choice to answer rather than demur to CIFAC's standing allegations." We disagree.
CIFAC's argument runs headlong into the settled principle that "contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438; see also Associated Builders &Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361 [addressing standing arguments raised for first time on appeal].) CIFAC does not cite a case describing any exceptions to this rule, let alone show that an exception applies under the circumstances presented here. We thus see no reason the City could not challenge CIFAC's standing in its demurrer to the supplemental petition. That is especially so given that, as discussed further below, CIFAC's standing was affected by the ongoing developments with the City's procurement process.
Moreover, the case CIFAC principally relies on, Craiglow v. Williams (1920) 45 Cal.App. 514, is inapposite. There, the defendant answered a complaint and admitted it was a surety on the debt alleged in the complaint. (Id. at p. 517.) Citing that admission, the Court of Appeal held that the trial court's order sustaining the defendant's demurrer to a supplemental complaint left the defendant's earlier admission intact. (Ibid. ["even though the court sustained the demurrer to the 'supplemental complaint,' still the original complaint and answer stood, and the issues there presented were still undisposed of"].) Unlike Craiglow, the City's answer to the initial petition did not admit CIFAC had standing. On the contrary, the City denied CIFAC's standing allegations and raised CIFAC's lack of standing as an affirmative defense. Craiglow thus fails to support CIFAC's contention that the City, having answered CIFAC's initial petition, was barred from challenging CIFAC's standing in its demurrer to the supplemental petition.
Nor do we find any error in the trial court's determination that, assuming the City was barred from raising standing in its demurrer to the supplemental petition, the court could construe the City's demurrer as a motion for judgment on the pleadings. (See Code Civ. Proc., § 438, subd. (b)(2) ["The court may upon its own motion grant a motion for judgment on the pleadings."].) CIFAC contends a motion for judgment on the pleadings would have been premature with respect to the supplemental petition because such a motion can only be brought after "the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired." (Code Civ. Proc., § 438, subd. (f)(2).) But such a motion would not have been untimely with respect to CIFAC's initial petition, and CIFAC acknowledges that "all of [its] standing allegations were made in the original Petition." We also note that CIFAC's reply brief, while continuing to assert that the trial court erred by allowing the City to raise standing in its demurrer, requests that we reach the standing questions presented here.
B. CIFAC lacked beneficial interest standing
Code of Civil Procedure section 1085 provides that "[a] writ of mandate may be issued by any court . . . to compel the performance of an act which the law specially enjoins ...." (Code Civ. Proc., § 1085, subd. (a).) "The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested." (Code Civ. Proc., § 1086.) "Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty." (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491.)
" 'The requirement that a petitioner be "beneficially interested" has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.'" (SJJC Aviation Services, supra, 12 Cal.App.5th at p. 1053.) "The beneficial interest must be clear and substantial." (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 (Save the Plastic Bag).) This standard "is equivalent to the federal 'injury in fact' test, which requires a party to prove by a preponderance of the evidence that it has suffered 'an invasion of a legally protected interest that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." '" Associated Builders &Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at p. 362.) "A petitioner has no beneficial interest within the meaning of the statute if he or she 'will gain no direct benefit from [the writ's] issuance and suffer no direct detriment if it is denied.'" (SJJC Aviation Services, at p. 1053.)
Standing is generally a question of law that we review de novo. (Citizens for Amending Proposition L v. City of Pomona (2018) 28 Cal.App.5th 1159, 1174 ["Standing is a question of law that we review de novo."].)
Applying these principles, we agree with the trial court that CIFAC lacks a beneficial interest in this action. Regarding CIFAC's initial claim that the City failed to competitively bid the Project, CIFAC would gain no benefit from the writ's issuance and would suffer no detriment from the writ's denial-the City already rescinded its initial contract with JT Construction. Thus, even assuming CIFAC had a beneficial interest at the outset of this action, such standing was lost once the City rescinded the August 2019 contract with JT Construction and issued the January 2021 RFQ and February 2021 RFP. (See Wilson &Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574 ["' "The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)."' "]; Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 232233 ["For a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed."].)
CIFAC's initial petition alleged that "[a]mong [its] beneficiaries are several contractors that would have sought to bid on the Project ...." We assume this allegation referred to the period before the City rescinded its August 2019 contract with JT Construction, as nothing in the supplemental petition indicated that any contractors were prevented from bidding on the Project once bids were solicited by the City.
Likewise, CIFAC would gain no benefit from the writ's issuance and would suffer no detriment from denial of the writ in connection with its allegations regarding the January 2021 RFQ and February 2021 RFP. CIFAC does not allege that it or any of its "beneficiaries" is a contractor that bid or intended to bid on the Project once the contract with JT Construction was rescinded and the City solicited bids. Thus, correction of the alleged deficiencies with the January 2021 RFQ and February 2021 RFP would have no direct impact on CIFAC.
Instead of identifying a direct benefit it would gain from issuance of a writ of mandate or a detriment it would suffer if a writ were denied, CIFAC argues its beneficial interest is demonstrated by its purpose as an organization that monitors compliance with state law competitive bidding requirements. But we fail to see how this is an interest "over and above the interest held in common with the public" (SJJC Aviation Services, supra, 12 Cal.App.5th at p. 1053, italics added); it seems to be the same interest held by the public in ensuring that the Public Contract Code is enforced. Nor does CIFAC cite a case, and we are unaware of one, supporting the conclusion that a petitioner's general desire to see a statute enforced is sufficient by itself to establish beneficial interest standing. (See Citizens for Amending Proposition L v. City of Pomona, supra, 28 Cal.App.5th at p. 1175 ["A desire to ensure that a city complies with its laws does not alone give rise to a beneficial interest."].)
We thus turn our attention to CIFAC's contention that it sufficiently alleged public interest standing.
C. CIFAC lacked public interest standing
A petitioner without a beneficial interest may nonetheless establish standing under the "public interest" standing doctrine. (See Save the Plastic Bag, supra, 52 Cal.4th at p. 166.)"' "[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced."' [Citation.] This' "public right/public duty" exception to the requirement of beneficial interest for a writ of mandate' 'promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right.'" (Ibid.)
However," '[j]udicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest. The policy underlying the exception may be outweighed by competing considerations of a more urgent nature.'" (Save the Plastic Bag, supra, 52 Cal.4th at 170, fn. 5.) The public interest standing exception requires a" 'judicial balancing of interests'" (Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1252), and applies" 'when the public duty is sharp and the public need weighty.'" (SJJC Aviation Services, LLC, supra, 12 Cal.App.5th at p. 1058.)
We acknowledge conflicting authority on the standard of review applicable to whether a petitioner has established public interest standing. (Compare Citizens for Amending Proposition L v. City of Pomona, supra, 28 Cal.App.5th at p. 1174 ["the determination whether to apply the public interest exception involves a judicial balancing of interests and is reviewed for abuse of discretion"]; Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 875 [same] with People for Ethical Operation of Prosecutors etc. v. Sptizer (2020) 53 Cal.App.5th 391, 408 [applying de novo review to the question of whether a petitioner meets the requirements of public interest standing].) We need not address this conflict, as we reach the same conclusion under either a de novo or abuse of discretion standard of review.
CIFAC's action clearly seeks to enforce a public duty, namely, the City's compliance with the Public Contract Code to ensure fair and competitive bidding on a public design and build project. (See MCM Construction, Inc. v. City and County of San Francisco (1998) 66 Cal.App.4th 359, 372 ["Competitive bidding laws are passed for the benefit and protection of the taxpaying public"].) Nevertheless, we conclude that CIFAC lacks public interest standing here, where its action challenges an ongoing procurement process. Our public interest standing analysis is thus informed by ripeness concerns like those identified by the trial court. (See California Department of Consumer Affairs v. Superior Court (2016) 245 Cal.App.4th 256, 264 ["[c]onsiderations of ripeness . . . help[ed] inform" conclusion that petitioner lacked public interest standing]; Wilson &Wilson, supra, 191 Cal.App.4th at p. 1573 [justiciability" 'involves the intertwined criteria of ripeness and standing' "].) Because the February 2021 RFP has been superseded, it is difficult to determine how the alleged deficiencies in the bid process identified by CIFAC will affect the public interest it seeks to vindicate-in the parlance of public interest standing cases, the public duty is not yet" 'sharp'" and the public need not yet" 'weighty.' " (See SJJC Aviation Services, LLC, supra, 12 Cal.App.5th at p. 1058.)
CIFAC contends the trial court erred by finding public interest standing was undermined because "CIFAC represents the interests of various commercial enterprises" and thus "is representing its beneficiaries' competitive interests, not the public interest." We do not rely on this finding in reaching our disposition. (See Save the Plastic Bag, supra, 52 Cal.4th at p. 168 ["Absent compelling policy reasons to the contrary, it would seem that corporate entities should be as free as natural persons to litigate in the public interest."].)
CIFAC filed a motion requesting that we take judicial notice of the minutes of the City Council's August 17, 2021 regular meeting, the agenda for that meeting, and a staff report relating to item number three on that agenda. CIFAC contends those materials show that the City selected JT Construction, the City's "preferred contractor," as the contractor for the Project. We decline to take judicial notice of these documents. As CIFAC acknowledges, these documents were not presented to the trial court and thus played no role in its resolution of this action. Nor is the final selection of JT Construction alleged in the supplemental petition. These materials are therefore not relevant to our determination on appeal. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 687, fn. 10 [declining to take judicial notice "of matters that were not before the trial court" and that were "irrelevant to the disposition of this appeal"].)
CIFAC does not appear to contend it established public interest standing in connection with its claim regarding the City's August 2019 no-bid contract with JT Construction. In any event, we agree with the trial court's observation that there "is no sharp public duty to revoke a now-defunct contract ...."
For example, CIFAC alleged the City's January 2021 RFQ violated section 22164, subdivision (b), by failing to include the City's evaluation or selection methodology and procedure, and by failing to ask interested contractors for all information required by that provision. (See § 22614, subds. (b)(1), (3).) But CIFAC further alleged that all contractors that submitted statements of qualifications in response to the January 2021 RFQ were later deemed qualified to bid on the Project. It also acknowledges that the same information required by section 22164, subdivision (b)(1) to be included in an RFQ-including the City's evaluation and selection methodology and procedure-must also be included in a subsequent RFP under section 22164, subdivision (d)(1). Hence, exactly how the alleged violation of section 22164, subdivision (b) at the RFQ stage may affect the competitive bid process, and thus the public interest, is not yet clear.
CIFAC argues otherwise, contending that the City's alleged violation of section 22164, subdivision (b) is concrete and ready for judicial review now, notwithstanding that all interested contractors were deemed qualified. It contends that section 22164, subdivision (b) required the City to take ministerial action at the RFQ stage of the procurement process, that the information required by section 22164, subdivision (b) is essential to transparency, and that the statute does not excuse noncompliance by a public entity that qualifies all interested contractors and proceeds to the RFP stage. It further argues that there will be no incentive for public entities to comply with section 22164, subdivision (b), if violations of that section will be "forgiven by the time [the public entity] move[s] on to the RFP."
However, our conclusion that CIFAC lacks public interest standing at this stage of the bid process "forgive[s]" nothing about the City's procurement process, including its alleged violation of section 22164, subdivision (b). If CIFAC pursues a writ petition challenging the June 2021 RFP process or the City's authorization of a final contract for the Project, it can raise this same allegation. At that stage, the public impact of the City's alleged violation of section 22164, subdivision (b) will likely be clearer.
CIFAC contends that competitive bidding violations may be subject to judicial review before a contract is finally awarded. Regardless of whether that is correct as a general matter, the cases cited by CIFAC in support of its contention are distinguishable. In Marshall v. Pasadena Unified School District, supra, 119 Cal.App.4th 1241, the petitioners filed their writ of mandate after the public entity awarded the contract at issue. And although the action in Michael Leslie Productions, Inc. v. City of Los Angeles (2012) 207 Cal.App.4th 1011, arose prior to the award of a contract, that was because the petitioner challenged the City of Los Angeles's decision to cancel a request for proposal after preliminarily approving the petitioner's proposal. Neither case fits the present facts. CIFAC also cites section 5110 as support for its contention that pre-award challenges are subject to judicial review. That statute provides, in part, that "[w]hen a project for the construction, alteration, repair, or improvement of any structure, building, or road, or other improvement of any kind is competitively bid and any intended or actual award of the contract is challenged, the contract may be entered into pending final decision of the challenge, subject to the requirements of this section." (§ 5110, subd. (a), italics added.) The allegations at issue here, however, do not establish "an intended or actual award of" a contract. As noted, the procurement process was still unfolding at the time of CIFAC's action.
As noted earlier, CIFAC also alleged that after the City rescinded its contract with JT Construction, it failed to create "affirmative safeguards" to ensure "the re-bid does not favor JT Construction." CIFAC further alleged the February 2021 RFP was unusually hurried and that the City failed to provide certain information about the Project to interested contractors, thereby advantaging JT Construction.
But CIFAC does not dispute that the City reissued the RFP in June 2021, after it filed its supplemental petition. It is thus unclear how the allegedly rushed deadlines associated with the February 2021 RFP may have affected the new June 2021 RFP, which appears to have significantly extended the time for prequalified contractors to gather necessary information and submit proposals for the Project. Again, we do not find public interest standing to be justified by a sharp public duty and weighty public need under these circumstances, at least not based on the allegations of the initial and supplemental petitions.
Despite acknowledging that the June 2021 RFP extended relevant deadlines in the procurement process, CIFAC argues the additional time will provide further opportunity for the City to advantage JT Construction. That assertion is speculative given the ongoing bid process at issue in CIFAC's action.
Our conclusion that CIFAC lacks public interest standing here is also informed by the City's seeming efforts to respond to CIFAC's concerns. After CIFAC notified the City that its no-bid contract with JT Construction ran afoul of the Public Contract Code, the City rescinded the contract and solicited bids. And, apparently, after CIFAC notified the City of its concerns that the January 2021 RFQ failed to adhere to the requirements of section 22164, subdivision (b), and that the February 2021 RFP process appeared rushed, the City prequalified all interested contractors and extended the RFP deadline by an extra week. Finally, although the reason for the further extension is not clear from the record, the City continued the RFP deadline again in June 2021. Given the City's apparent efforts to address CIFAC's concerns, and the still-ongoing procurement process at issue in CIFAC's action, the need to grant CIFAC public interest standing is not pressing.
The City filed a motion requesting that we take judicial notice of two proofs of service CIFAC filed in the trial court, which indicate that the initial petition was not served on the City until December 8, 2020. The City argues the proofs of service show that CIFAC's petition had no effect on the City's decision to bid the Project on December 1, 2020. But this overlooks the allegation in the initial petition that CIFAC first notified the City of its concerns about the no-bid contract in May 2020, well before CIFAC filed its initial petition. In any event, we decline to take judicial notice of these documents as they are not relevant to our determination on appeal. (See Meridian Financial Services, Inc. v. Phan, supra, 67 Cal.App.5th at p. 687, fn. 10.)
Last, we briefly address CIFAC's contention that withholding judicial consideration here will result in hardship. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171 [ripeness challenge requires court to" 'evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration'" (italics omitted)].) CIFAC argues that if it has to wait to bring its action until there is a final award of the Project, it may be too late by then-if the Project is complete by the time its action is resolved, the City will argue the action is moot. (See, e.g., Wilson &Wilson, supra, 191 Cal.App.4th at p. 1575 ["California law has long recognized that the completion of a public works project moots challenges to the validity of the contracts under which the project was carried out."].)
We find CIFAC's concern to be speculative. Also, as it points out, there are recognized exceptions to the mootness doctrine, including in cases involving the public interest. (See, e.g., Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1250 [denying motion to dismiss appeal as moot where case "presented an issue of public interest"].) Thus, even if the Project is complete by the time a subsequent action is resolved, CIFAC does not convince us that its anticipated claims will necessarily go unheard.
The trial court's order dismissing the action without prejudice is affirmed. CIFAC's motion for judicial notice is denied. The City's motion for judicial notice is denied. The City shall recover its costs on appeal.
WE CONCUR: LAVIN, J., NGUYEN (KIM), J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.