Filed 5/27/14
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                      DIVISION THREE


JOSEPH PICCININI,
        Plaintiff and Appellant,
                                                     A137275
v.
CALIFORNIA EMERGENCY                                 (Sonoma County
MANAGEMENT AGENCY et al.,                            Super. Ct. No. SCV-251102)
        Defendants and Respondents.




        Appellant Joseph Piccinini was offered and accepted employment as a deputy
chief in the California Emergency Management Agency. The Friday night before he was
to report for work, he was told not to come because the position for which he was hired
had been eliminated. He incurred expenses in reliance on his appointment and sued for
damages. The State’s demurrers to Piccinini’s complaints were sustained. Because his
first amended complaint stated facts sufficient to constitute a cause of action under
Government Code section 19257,1 we reverse.
                                       BACKGROUND
        In his first amended complaint, Piccinini alleged that he responded to a public job
announcement for the deputy chief position and participated in the state application
process. He was the top candidate for the position and received an offer of employment.
He accepted the offer and informed the State he could start in his new position on
February 1, 2011. Piccinini completed all the necessary documentation, underwent a
physical examination, received a new uniform, signed a two-year lease for a home nearby
        1
            Further statutory references are to the Government Code.

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his new work site and resigned his position as chief of the Central Calaveras Fire
Department. On February 3, 2011, Piccinini was told to report for work on February 7.
After close of business on February 4th, Piccinini received a phone call from his new
chief telling him not to report for work because, due to budget constraints, his position
had been eliminated.
         Piccinini filed suit for wrongful termination, breach of contract and promissory
estoppel. The State demurred generally on the ground that his first amended complaint
failed to state facts sufficient to constitute a cause of action. On October 22, 2012, the
trial court sustained the demurrer on the grounds that public employment is governed by
statute not contract, hence Piccinini could not have a cause of action for breach of
contract. Alternatively, the court reasoned that to the extent Piccinini’s claims were
premised upon misrepresentation of the availability of a vacant position warranting his
appointment, the State was immune from suit under section 818.8 which provides public
entities are not liable for injury caused by the misrepresentation of public employees.
Piccinini was given 20 days to amend.
         On November 26, 2012, the State applied for judgment of dismissal upon
Piccinini’s failure to file an amended complaint. The next day the complaint was
dismissed with prejudice and judgment was entered for the defendants. Piccinini timely
appealed.
                                        DISCUSSION
         We review de novo the sufficiency of a complaint against a general demurrer to
determine whether the complaint alleges facts sufficient to state a cause of action under
any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We
treat the demurrer as admitting all properly pleaded material facts, but not contentions,
deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
When measured under this standard, we conclude Piccinini’s complaint adequately
alleges a cause of action in the nature of promissory estoppel as recognized by section
19257.



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       Title 2, Division 5, Part 2 of the Government Code provides a comprehensive
personnel system for the state civil service. (§ 18500 et seq.) Among its provisions,
section 19257 states: “Any person acting in good faith in accepting an appointment or
employment contrary to this part or the rules prescribed hereunder, shall be paid by the
appointing power the compensation promised by or on behalf of the appointing power or,
in case no compensation is so promised, then, the actual value of any service rendered
and the expense incurred in good faith under such attempted appointment or employment,
and has a cause of action against the appointing power therefor.”
       Piccinini alleged that after following the state application process, he was offered
and accepted a position as a deputy chief with the emergency management agency. Just
before he was to report for work, he was told the hiring had been in error because his
position was eliminated due to a lack of funding. As the Attorney General points out,
civil service tenure is subject to the appropriation of sufficient funds. (§ 18500, subd.
(c)(6).) Thus, Piccinini’s first amended complaint alleged good faith acceptance of
employment contrary to law, and his allegations fall squarely within the scope of the
cause of action circumscribed in section 19257. He should be afforded the opportunity to
proceed on his cause of action for promissory estoppel as authorized under section 19257.
       The Attorney General argues it is improper to afford Piccinini the opportunity he
seeks to prove his case because he did not amend his complaint to specifically allege
section 19257 as a basis for liability. When, following a demurrer, a plaintiff who is
afforded leave elects not to amend a complaint, we presume the complaint states as
strong a case as the plaintiff can muster. (Stonehouse Homes LLC v. City of Sierra
Madre (2008) 167 Cal.App.4th 531, 539.) To state a cause of action against a public
entity, the plaintiff is required to allege every fact material to the existence of statutory
liability with particularity. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d
780, 795.) But Piccinini’s complaint meets these burdens.
       The Attorney General also challenges Piccinini’s promissory estoppel theory by
arguing that application of estoppel in this case would contravene important state policies
and improperly expand the authority of state officials. The Attorney General is correct


                                               3
that as a general matter, estoppel will not be applied against the government if doing so
would nullify a rule of policy adopted for the public benefit, or if doing so would expand
the statutory or constitutional power of a government officer or employee. (Poway Royal
Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471; Patten
v. Cal. State Personnel Board (1951) 106 Cal.App.2d 168, 173.) But such general
expressions of estoppel doctrine do not control in this case. Here, section 19257
expresses a legislative policy that recognizes a cause of action in favor of someone who
accepts an offer of state employment in good faith in violation of the rules and statutes
that govern state hiring.
       The State also argues that Piccinini’s claim for promissory estoppel is barred by
section 818.8 which provides the State immunity for intentional or negligent
misrepresentation by state employees. However, a claim for promissory estoppel is an
equitable theory rooted in contract, not tort. (C & K Engineering Contractors v. Amber
Steel Co. (1978) 23 Cal.3d 1, 6–7.) Section 814 provides that the immunities, including
section 818.8, of the Government Tort Liability Act do not affect liability based on
contract. (§ 814.) Moreover, a claim for promissory estoppel does not require a
misrepresentation by the defendant, nor does Piccinini allege any. (C & K Engineering
Contractors v. Amber Steel Co., supra, 23 Cal.3d at p. 6.)
       However, the State’s demurrer to the causes of action for wrongful termination
and breach of contract were properly sustained. As the trial court correctly observed,
citing our Supreme Court, “it is well settled in California that public employment is not
held by contract but by statute and that, insofar as the duration of such employment is
concerned, no employee has a vested contractual right to continue in employment beyond
the time or contrary to the terms and conditions fixed by law. [Citations.] . . . Indeed,
‘[t]he statutory provisions controlling the terms and conditions of civil service
employment cannot be circumvented by purported contracts in conflict therewith.’ ”
(Miller v. State of California (1977) 18 Cal.3d 808, 813–814.) Thus, Piccinini has no
claim for breach of contract, nor based on his allegations that the offer of employment
was revoked solely due to a lack of funding, could he possibly have a cause of action for


                                              4
wrongful termination. As we previously stated, civil service employment is subject to
appropriation of sufficient funds. (§ 18500, subd. (c)(6).) But to the extent that he
actually rendered service or incurred expenses in good faith under his attempted
appointment, Piccinini stated a claim for estoppel within the scope of section 19257.
                                       DISPOSITION
       Dismissal of the causes of action for breach of contract and wrongful termination
alleged in Piccinini’s first amended complaint is affirmed. The dismissal of the cause of
action for promissory estoppel is reversed. Piccinini shall have 30 days following
issuance of remittitur to file an amended complaint alleging a cause of action for
promissory estoppel as provided by section 19257. The subject of Piccinini’s request for
judicial notice is not necessary for resolution of this appeal, and for that reason the
request is denied. Each party is to bear its own costs on appeal.




                                                   _________________________
                                                   Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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Trial Court:                  Sonoma County Superior Court


Trial Judge:                  Honorable Gary Nadler


Counsel for Appellant:        Scott Adrian Lewis
                              PERRY, JOHNSON, ANDERSON,
                              MILLER, & MOSKOWITZ


Counsel for Respondent:       Kamala D. Harris, Attorney General
                              Alicia Fowler, Senior Assistant
                              Attorney General
                              Miguel A. Neri, Fiel D. Tigno,
                              Supervising Deputy Attorneys General
                              Christopher M. Young, Deputy Attorney
                              General




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