Filed 6/1/15




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT


STEPHEN K. DAVIS,                                               F068477

 Plaintiff and Appellant,                            (Super. Ct. No. 12CECG03718)

 v.                                                            OPINION

FRESNO UNIFIED SCHOOL DISTRICT et al.,

 Defendants and Respondents.



       APPEAL from judgment of the Superior Court of Fresno County. Donald S.
Black, Judge.
       Carlin Law Group and Kevin R. Carlin for Plaintiff and Appellant.
       Briggs Law Corporation, Cory J. Briggs, Mekaela M. Gladden and Anthony N.
Kim for Kern County Taxpayers Association as Amicus Curiae on behalf of Plaintiff and
Appellant.
       Atkinson, Andelson, Loya, Ruud & Romo, Martin A. Hom and Jennifer D.
Cantrell for Defendant and Respondent Fresno Unified School District.
       Fagen Friedman & Fulfrost, Kathy McKee, Paul G. Thompson, James Traber and
Luke Boughen for California’s Coalition for Adequate School Housing as Amicus Curiae
on behalf of Defendant and Respondent Fresno Unified School District.
       Lozoya & Lozoya and Frank J. Lozoya for Defendant and Respondent Harris
Construction Company, Inc.
                                         -ooOoo-
       Plaintiff Stephen Davis is a taxpayer challenging a noncompetitive bid contract
between the Fresno Unified School District (Fresno Unified) and Harris Construction
Co., Inc. (Contractor) for the construction of a middle school for $36.7 million. The
construction was completed in 2014 pursuant to a lease-leaseback arrangement that
Fresno Unified and Contractor contend is exempt from competitive bidding under
Education Code section 17406.1
       Davis alleged the school construction project should have been competitively bid
because the lease-leaseback arrangement did not create a true leaseback or satisfy the
criteria for the exception in section 17406. Davis also alleged Fresno Unified’s board
breached its fiduciary duties by approving the costly arrangement and Contractor had an
impermissible conflict of interest that rendered the lease-leaseback agreement void.
       The trial court sustained demurrers filed by Fresno Unified and Contractor. Davis
appealed.
       As to the causes of action based on the Education Code, we conclude (1) the
competitive bidding process required by section 17417 is subject to the exception
contained in section 17406 and (2) Davis adequately alleged three grounds for why
section 17406’s exception did not apply to the lease-leaseback arrangement. First, Davis
alleged the exception is available only for genuine leases and the subject leaseback
agreement was simply a traditional construction agreement and not a genuine lease.
Second, Davis alleged the agreement did not include a financing component for the
construction of the project. Third, Davis alleged the lease-leaseback arrangement did not



1      All further statutory references are to the Education Code unless otherwise stated.

                                             2
provide for Fresno Unified’s use of the newly built facilities “during the term of the
lease,” as required by section 17406.
       As to the conflict of interest cause of action, we conclude Government Code
section 1090’s prohibition of such conflicts extends to corporate consultants. Davis has
stated a violation of Government Code section 1090 by alleging facts showing
Contractor, as a consultant to Fresno Unified, participated in the making of a contract in
which Contractor subsequently became financially interested.
       We therefore reverse the judgment.
                                          FACTS
       This case involves a project for the construction of buildings and facilities at the
Rutherford B. Gaston Sr. Middle School, located in southwest Fresno. In September
2012, Fresno Unified’s governing board adopted a resolution authorizing the execution of
contracts pursuant to which Fresno Unified would lease the project site to the Contractor,
which would build the project on the site, and lease the improvements and site back to
Fresno Unified. The contracts were a Site Lease and a Facilities Lease (collectively, the
Lease-Leaseback Contracts).
       Under the Site Lease, Fresno Unified leased the project site to Contractor for $1 in
rent. The Site Lease began on September 27, 2012, and terminated the same day as the
Facilities Lease. The Site Lease is the “lease” in the lease-leaseback arrangement.
       The Facilities Lease was structured so that Contractor would (1) build the project
on the site pursuant to the “Construction Provisions” attached as an exhibit to the
Facilities Lease and (2) sublease the site and project to Fresno Unified2 in exchange for
payments under a “Schedule of Lease Payments.” The Construction Provisions were a
detailed construction agreement (55 pages long) whereby Contractor agreed to build the


2      This sublease by Contractor of the site and facilities to Fresno Unified constitutes
the “leaseback” part of the lease-leaseback arrangement.

                                              3
project in accordance with the plans and specifications approved by Fresno Unified for a
guaranteed maximum price of $36,702,876. Completion was to be 595 days from the
notice to proceed.
       The “Schedule of Lease Payments” attached to the Facilities Lease simply referred
to the “payments for the Project as set forth in the Construction Provisions.” The
Construction Provisions outlined monthly progress payments for construction services
rendered each month, up to 95 percent of the total value for the work performed, with a 5
percent retention pending acceptance of the project and recordation of a notice of
completion. Final payment for all of the work was to be made within 35 days after
recordation by Fresno Unified of the notice of completion. Simply put, the funds paid by
Fresno Unified under the Facilities Lease were based solely on the construction services
performed by Contractor.3
       Once the project was completed and the final lease payment made, the Facilities
Lease terminated. Counsel for Fresno Unified confirmed at oral argument that the term
of the lease was from the date of signing to the date of completion. As to possession of
the project, the Facilities Lease stated that Fresno Unified was allowed to take possession
of the project “as it is completed.” However, consistent with Davis’s allegations of fact,
Fresno Unified’s opening brief acknowledged the Facilities Lease was in effect only
during the construction of the school facilities. This fact was confirmed during oral
argument when counsel for Fresno Unified stated that Fresno Unified did not occupy the
school facility until the lease was, in fact, terminated.




3     Thus, the progress payments made by Fresno Unified under the Facilities Lease
were not “rent” in the usual sense of the word—that is, consideration paid periodically in
exchange for the use or occupancy of real property. (Black’s Law Dictionary (9th ed.
2009) p. 1410 [definition of rent].)

                                               4
       As to ownership of the newly constructed improvements, the Facilities Lease
provided that Fresno Unified would obtain title from Contractor “as construction
progresses and corresponding Lease Payments are made to [Contractor].” In addition, the
Facilities Lease provided that once Fresno Unified paid all of the lease payments, all
rights, title and interest of Contractor in the project and the site would vest in Fresno
Unified.
                                     PROCEEDINGS
       In November 2012, Davis filed his original complaint.4 The operative pleading is
the first amended complaint (FAC) he filed in March 2013. The causes of action in the
FAC are (1) violation of the competitive bidding requirements of the Public Contract
Code by entering into an improper lease-leaseback arrangement that did not satisfy the
criteria for the statutory exception outlined in subdivision (a)(1) of section 17406 (section
17406(a)(1)); (2) breach of fiduciary duty by the Board of Fresno Unified; (3) failure to
comply with the competitive bidding requirements of section 17417; (4) conflict of
interest by Contractor based on its participation in the planning and design of the project
as a consultant to Fresno Unified before the contracts for the project’s construction were
awarded; (5) improper use of section 17400 et seq., based on the legal theory that lease-
leaseback arrangements are allowed only when used for financing school construction;
(6) improper delegation of discretion; and (7) declaratory relief.


4      Defendants could have avoided this post-completion taxpayer challenge by
bringing a validation action under Code of Civil Procedure section 860 prior to
construction of the project. “A validation action … allows a public agency to obtain a
judgment that its financing commitments are valid, legal, and binding. If the public
agency has complied with statutory requirements, the judgment in the validation action
binds the agency and all other persons.” (Friedland v. City of Long Beach (1998) 62 Cal.
App.4th 835, 838.) The record in this case shows that the use of validation actions is a
common practice for school construction projects structured as a lease-leaseback
arrangement. (See fn. 5, post.)

                                              5
       Davis alleged that, although the site was leased by Fresno Unified to Contractor
while Contractor performed the construction, there was no genuine leaseback to Fresno
Unified because Fresno Unified did not regain the right to use and occupy the property
during the leaseback period. Davis also alleged that Fresno Unified made payments that
lasted only as long as the duration of construction, varied based upon the value of the
work performed, and ended with the completion of the construction. In addition, Davis
alleged that Fresno Unified did “not have the right or practical ability to have beneficial
occupancy of the demised premises during the term of the Facilities Lease to use them for
their intended purposes.”
       In April 2013, Fresno Unified filed a demurrer to the FAC, which was supported
by a request for judicial notice.5 In May 2013, Contractor filed a separate demurrer that
was similar to Fresno Unified’s.
       Davis opposed the demurrers and objected to the request for judicial notice. Davis
also lodged 11 exhibits with the trial court to support his opposition to the demurrers.
       In August 2013, the trial court sustained both demurrers to each of the seven
causes of action in the FAC. The court granted Davis 30 days leave to amend. Counsel
for Davis informed counsel for Fresno Unified that Davis did not intend to file a second
amended complaint. After the 30-day period expired, defendants filed applications for
dismissal of the action and entry of judgment.
       In September 2013, judgment was entered in favor of Fresno Unified and
Contractor. Davis appealed.

5      Fresno Unified’s request for judicial notice included copies of 22 default
judgments entered from December 2010 to July 2012 in validation actions brought by
school districts in Los Angeles, Orange, Riverside, San Bernardino, Ventura and Kern
Counties. The default judgments stated that site leases, subleases, and construction
services agreements entered into by the school districts pursuant to section 17406 were
not subject to the requirement in Public Contract Code section 20111 that construction
contracts be awarded to the lowest responsible bidder.

                                              6
                                        DISCUSSION
I.      STANDARD OF REVIEW
        A.     Demurrers
        Appellate courts independently review the ruling on a general demurrer and make
a de novo determination of whether the pleading alleges facts sufficient to state a cause of
action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
        Generally, appellate courts “give the complaint a reasonable interpretation,
reading it as a whole and its parts in their context. [Citation.]” (City of Dinuba v. County
of Tulare (2007) 41 Cal.4th 859, 865 (Dinuba).) Also, the demurrer is treated as
admitting all material facts properly pleaded, but does not admit the truth of contentions,
deductions or conclusions of law. (Ibid.)
        Ordinarily, the allegations in a pleading “must be liberally construed, with a view
to substantial justice between the parties.” (Code Civ. Proc., § 452.) However, this
principle of liberal construction does not apply when, as in this case, a plaintiff has been
granted leave to amend and elects not to do so. (Reynolds v. Bement (2005) 36 Cal.4th
1075, 1091, abrogated on another ground in Martinez v. Combs (2010) 49 Cal.4th 35, 62-
66.) In such cases, appellate courts will construe the pleading strictly, based on the
rationale that the plaintiff’s election indicates he or she believes the pleading has stated
the strongest case possible. (Reynolds, supra, at p. 1091.)
        B.     Statutory Construction
        This appeal presents a number of issues relating to the proper construction of the
Education Code provisions addressing lease-leaseback arrangements and the Government
Code provisions addressing conflicts of interest.
        Issues of statutory construction are questions of law subject to independent review
by appellate courts. (Neilson v. City of California City (2007) 146 Cal.App.4th 633,
642.)


                                              7
              “A reviewing court’s fundamental task in construing a statute is to
       determine the intent of the lawmakers so as to effectuate the purpose of the statute.
       [Citations.] Courts start this task by scrutinizing the actual words of the statute,
       giving them their usual, ordinary meaning. [Citation.] When statutory language is
       clear and unambiguous (i.e., susceptible to only one reasonable construction),
       courts adopt the literal meaning of that language, unless that literal construction
       would frustrate the purpose of the statute or produce absurd consequences.
       [Citation.]

               “Alternatively, when the statutory language is ambiguous, courts must
       select the construction that comports most closely with the apparent intent of the
       Legislature, with a view to promoting rather than defeating the general purpose of
       the statute. [Citation.] The interpretation of ambiguous wording is guided by the
       fundamental principle that courts construe those words in the context and with
       reference to the entire scheme of law of which they are a part. [Citations.] Courts
       resolving statutory ambiguity also may be aided by the ostensible objects to be
       achieved by the legislation, the evils to be remedied, the legislative history, and
       public policy. [Citation.] When a court interprets an ambiguous statute, it is not
       authorized to rewrite the statute. It must simply declare what is, in terms or in
       substance, contained in the statute. [Citation.]” (POET, LLC v. State Air
       Resources Bd. (2013) 218 Cal.App.4th 681, 749.)
       The foregoing rules of statutory construction are subject to specific rules that
apply to particular types of statutes. The specific rule relevant in this case provides that
any statutory exception to competitive bidding requirements for government contracts are
to be strictly construed. (Unite Here Local 30 v. Department of Parks & Recreation
(2011) 194 Cal.App.4th 1200, 1209; see 45A Cal.Jur.3d (2008) Municipalities, § 524, p.
301 [exception to competitive bidding should be strictly construed and restricted to
circumstances that truly satisfy the statutory criteria].)

II.    EXCEPTION TO COMPETITIVE BIDDING—FIRST CAUSE OF ACTION
       A.     Background
       School districts can procure new facilities in various ways based on (1) different
methods for financing the project and (2) different delivery methods for the construction.




                                               8
              1.     Traditional Financing and Delivery
       The traditional method for financing new school facilities is for school districts to
obtain voter approval for the issuance of general obligations bonds and then use the
proceeds from the bonds to pay for the construction. (62 Ops.Cal.Atty.Gen. 209, 210
(1979).)
       The traditional delivery method for new school facilities is referred to as design-
bid-build, which involves three separate steps. (See 10 Miller & Starr, Cal. Real Estate
(3d. ed. 2010) § 27:27, p. 27-143.) First, the school district hires an architect to design
the project. Second, the district uses the design in its request for competitive bids from
construction firms. Third, the winning bidder builds the project.
       School construction contracts are a type of public works contract subject to the
competitive bidding process unless an exception applies. (See Pub. Contract Code, §
20111, subd. (b).) Competitive bidding is favored by a strong public policy “‘“to
eliminate favoritism, fraud and corruption; avoid misuse of public funds; and stimulate
advantageous marketplace competition.”’ [Citation.]” (Marshall v. Pasadena Unified
School Dist. (2004) 119 Cal.App.4th 1241, 1256-1257.)
              2.     Lease-Leaseback Delivery and Financing Method -- Section 17406
       In 1957, the Legislature authorized another method for financing and delivery of
new school facilities and made it exempt from the competitive bidding process. (Stats.
1957, ch. 2071, § 1, pp. 3682-3687.) This method, the crux of this appeal, has been
referred to as a lease-purchase, but is now referred to as a “lease-leaseback”
arrangement.6 (See 56 Ops.Cal.Atty.Gen. 571, 572 (1973); Los Alamitos Unified School
Dist. v. Howard Contracting, Inc. (2014) 229 Cal.App.4th 1222, 1224 (Los Alamitos).)

6       A good description of the use of a lease-leaseback arrangement for a public
construction project is set forth in City of Desert Hot Springs v. County of Riverside
(1979) 91 Cal.App.3d 441, 447-449.) There, the city leased land to a contractor for 50
years and the contractor subleased the completed city hall and public library back to the
city for 15 years, with options for the city to purchase the buildings after five and 10
                                              9
       Under the lease-leaseback method, the school district leases land that it owns to a
construction firm for a nominal amount ($1.00) and the construction firms agrees to build
school facilities on that site. (§ 17406(a)(1).)7 The construction firm builds the facilities
and leases them back to the school district for a specified time at a specified rental
amount. Thus, the “leaseback” part of the arrangement involves the construction firm
acting as landlord of the newly constructed facilities and the school district acting as the
tenant. At the end of the lease, title to the new facilities must vest in the school district.
(§ 17406(a)(1).)8
       Under this financing method, the builder finances the project (probably with
assistance from a third party lender) and is paid over the term of the lease, which can last
40 years. (§ 17403; Stats. 1957, ch. 2071, p. 3683 [former § 18353].) The economic
reality of the lease-leaseback arrangement is that the builder carries both the cost of
construction and financing while the school district compensates the builder with a
stream of payments spread over a specified period—namely, the term of the lease.
However, the parties to a lease-leaseback arrangement could achieve the same economic
effect (i.e., stream of payments) and end result (i.e., the construction of facilities
eventually owned by the district) without using a lease-leaseback arrangement. The same
terms governing the construction and payment could be adopted in a traditional


years. (Id. at pp. 444-445.) The case also illustrates the contractor’s use of the site lease
and leaseback as security for a construction loan with a pay-off period equal to the term
of the leaseback. (Id. at p. 445.)
7      Since its adoption in 1957, this section has been numbered 18355 (1957-1959),
15705 (1959-1976), 39305 (1976-1996), and 17406 (1996 to present). (Stats. 1957, ch.
2071, § 1, p. 3683; Stats. 1959, ch. 2, § 1, pp. 1086-1087; Stats. 1976, ch. 1010, § 2, p.
3167; Stats. 1996, ch. 277, § 3 p. 2126.)
8     This type of lease-leaseback arrangement should not be confused with the type of
arrangement authorized by the Leroy F. Greene State School Building Lease-Purchase
Law of 1976, which involves state funding of construction. (§§ 17000-17066.)

                                               10
construction contract, without a lease of the site and a leaseback of the facility, that
included a long-term payment plan requiring the exact same payments as would have
been contained in the lease-leaseback arrangement.
       Consequently, we consider why the Legislature chose a complicated lease-
leaseback structure for builder-financed construction. The answer appears to be related
to (1) a constitutional provision that prohibited counties, cities and school districts from
incurring any indebtedness or liability exceeding the amount of one year’s income
without the assent of two-thirds of its voters and (2) the California Supreme Court’s
determination that leases do not create an indebtedness for the aggregate amount of all
installments, but create a debt limited in amount to the installments due each year. (See
City of Los Angeles v. Offner (1942) 19 Cal.2d 483 [applying former Cal. Const. art. XI,
§ 18] (Offner).) Thus, the Legislature adopted the lease-leaseback structure to create a
way for school districts to pay for construction over time and avoid the constitutional
limitation on debt. (See former § 18364 [amount of rental a district agrees to pay during
any one year is an obligation of such district for such year only]; Stats. 1957, ch. 2071,
§1, p. 3686.)
       Therefore, the formalities of the lease-leaseback arrangement were important to
the Legislature in 1957 because of their effect on the project’s financing. Specifically,
the formalities spread the school district’s liability for the construction and carrying costs
over the term of the leaseback and limited the amount of debt attributed to the district for
any one year.
       Next, we consider each component of a traditional lease-leaseback arrangement
and the function of that component. The “lease” part of the lease-leaseback
arrangement—that is, the agreement pursuant to which the school district leases real
estate it owns to a construction firm for $1.00 for the purpose of building new facilities
on that real estate—serves three functions. First, the site lease gives the contractor a
possessory or leasehold interest in the real estate so that the contractor holds sufficient
                                              11
property rights or interests to serve as the foundation for the leaseback. The fact the
contractor holds these rights to the land lends weight and legitimacy to the leaseback and
helps avoid the constitutional limitation on debt exceeding one year’s income. (See
Offner, supra, 19 Cal.2d at p. 486 [the aggregate amount of payments under a subterfuge
lease are a present liability for purposes of the constitutional limitation on debt].)
Second, the site lease solidifies the bundle of property and contractual rights (particularly
the rental payments under the leaseback) that the construction firm can use as collateral to
obtain third party financing. (See fn. 6, ante.) Third, the site lease formalizes the
contractor’s right to enter and occupy the location while building the new facilities. This
last function is insignificant compared to the other two because California law implies
into every construction contract a covenant that the owner will provide the contractor
timely access to the project site. (Howard Contracting, Inc. v. G. A. MacDonald
Construction Co. (1998) 71 Cal.App.4th 38, 50.)
       The “leaseback” part of a lease-leaseback arrangement is the mechanism by which
(1) the contractor is compensated for its construction services and the cost of financing
the project and (2) the school district’s obligation to pay for the project is spread over a
period of time. The leaseback, with its payment term of up to 40 years, allows a school
to acquire facilities that it might not be able to pay for using other financing methods. As
a result, the lease-leaseback method opened up a new source of financing for school
construction—namely, private sector funding through the contractor and a third party
lending money to the contractor. Given the difficulties in obtaining adequate funding for
the school construction needs of California in the post-war era, it appears that the primary
purpose for the Legislature’s adoption of section 17406(a)(1)’s predecessor in 1957 was
to provide a new source of financing for school construction. Use of the new source was
encouraged by providing an exception to competitive bidding. The exception would have
allowed school districts, contractors and lenders to enter into earnest negotiations of the
construction and financing arrangements without the concern that the deal would be
                                              12
subsequently derailed by the competitive bidding process. The exception also prevented
school districts from being required to balance apples (construction terms) against
oranges (financing terms) to determine which proposal was the lowest bid.
       Based on the statutory language and historical context, we conclude the primary
purpose for the adoption of section 17406(a)(1)’s predecessor was to provide a new
source of financing for the construction of schools. We have not located, and the parties
have not cited, any sources indicating the formalities inherent in traditional lease-
leaseback arrangements had any importance to the design or construction aspects of the
project. Thus, to the extent that defendants or an amicus curiae suggest the Legislature
intended to create a broad or easily satisfied exception to the competitive bidding process
because competitive bidding resulted in slower, more costly construction,9 we regard this
9      These criticisms of competitive bidding are reflected in the findings made by the
Legislature in connection with its adoption of the design-build delivery method of school
construction. In 2001, the Legislature added a chapter to the Education Code authorizing
the use of “design-build” contracts for school construction. (Stats. 2001, ch. 421, § 1
(Assem. Bill No. 1402); §§ 17250.10-17250.50.) Under the design-build delivery
method, both the design and construction work is let to a single entity, which centralizes
responsibility for both aspects of the project. (§ 17250.15, subd. (b) [definition of design-
build]; see 10 Miller & Starr, Cal. Real Estate, supra, § 27:27, p. 27-143.) Design-build
contracts are not subject to the competitive bidding requirements in Public Contract Code
section 20110, but the school district must (1) invite competitive sealed proposals, (2)
award the contract to the responsible bidder whose proposal is determined to provide the
“best value” to the school district, and (3) comply with the other requirements in section
17250.25. This selection method has been described as competitive selection.
        The Legislature found the benefits of the design-build delivery method “include
accelerated completion of the projects, cost containment, reduction of construction
complexity, and reduced exposure to risk for the school district.” (§ 17250.10, subd. (b).)
Also, school districts may benefit “by shifting the liability and risk for cost containment
and project completion to the design-build entity.” (Ibid.) The Legislature also declared
its intent “that design-build procurement does not replace or eliminate competitive
bidding.” (§ 17250.10, subd. (f).)
       The design-build delivery method was not utilized for the current project and,
therefore, has no direct application to this case.

                                             13
view of Legislative intent as unsupported by legislative history, historical context, or the
concerns being addressed in 1957.
        In the future, a Legislature might balance the various costs and benefits associated
with competitive bidding and with lease-leaseback arrangements and find there are
efficiencies that justify excepting lease-leaseback arrangements from competitive bidding
even when those arrangements do not provide financing for the construction. While the
Legislature is free to make such a finding and amend the statute, we cannot treat recent
criticism of competitive bidding as providing insight into the intent of the Legislature in
1957.
        Our view that obtaining a new source of school financing was the primary purpose
of the lease-leaseback provisions in sections 17400 through 17425 is supported by
Morgan Hill Unified School Dist. v. Amoroso (1988) 204 Cal.App.3d 1083, which
described former sections 39300 through 39325 (the predecessors of §§ 17400-17429) as
authorizing a “method for financing school construction.” (Morgan Hill, supra, at p.
1086.) Similarly, the Attorney General referred to former sections 39300 through 39305
as a construction funding method. (62 Ops.Cal.Atty.Gen., supra, at p. 210.)
        Although the lease-leaseback delivery method was authorized in 1957, an alternate
form has been growing in use throughout California over the past 15 years. This
variation of the lease-leaseback arrangement is the type used by Fresno Unified and
Contractor in this case. Under this alternate approach, the school district pays for the
construction (using local bond funds) as it progresses, with the final payment being made
when construction is completed. As a result, the school district does not occupy and use
the new facilities as a rent-paying tenant for a set length of time. Because the school
district pays for the construction as it is completed, this alternate approach cannot be
characterized as a method of financing the construction of new school facilities.




                                             14
       B.     Text of Section 17406
       Section 17406 gives school boards the authority to lease school property to
another under an instrument providing for the construction of buildings on the property.
Specifically, section 17406 provides:

       “(a)(1) Notwithstanding Section 17417, the governing board of a school
       district, without advertising for bids, may let, for a minimum rental of one
       dollar ($1) a year, to any person, firm, or corporation any real property that
       belongs to the district if the instrument by which this property is let requires
       the lessee therein to construct on the demised premises, or provide for the
       construction thereon of, a building or buildings for the use of the school
       district during the term of the lease, and provides that title to that building
       shall vest in the school district at the expiration of that term. The
       instrument may provide for the means or methods by which that title shall
       vest in the school district prior to the expiration of that term, and shall
       contain other terms and conditions as the governing board may deem to be
       in the best interest of the school district.” (Italics added.)
       C.     The Exception Includes Facilities Leases
       An initial question of statutory construction raised by the parties is whether section
17406 creates an exception to competitive bidding for both the lease and the leaseback.
Davis contends the exception applies only to the Site Lease and, therefore, the Facilities
Lease (i.e., the leaseback) is subject to competitive bidding.
       This specific question of statutory construction was addressed by the court in Los
Alamitos, supra, 229 Cal.App.4th 1222. The court interpreted section 17406(a)(1)’s
exception to competitive bidding as applying to the entire lease-leaseback arrangements,
not just the site lease. (Los Alamitos, supra, at pp. 1224, 1229.) The text relied upon for
this interpretation included the phrases “‘without advertising for bids’” and
“‘[n]otwithstanding section 17417 ….’” (Id. at p. 1227.) The reference to section 17417
is significant because that section provides that leases entered into by school districts are
subject to competitive bidding. The exception to competitive bidding was extended to
facilities leases based on the language referring to an instrument that requires the
contractor “to construct on the demised premises … a building or buildings for the use of

                                              15
the school district ….” (§ 17406(a)(1).) In Los Alamitos, the facilities lease provided for
the construction of new facilities and the leasing of those facilities to the school district.
As a result, the court concluded the facilities lease came within the statute’s exception to
competitive bidding. (Los Alamitos, supra, at pp. 1224, 1229.)
       We agree with the statutory interpretation that the exception to competitive
bidding in section 17406(a)(1) is not limited to site leases. (Los Alamitos, supra, 229
Cal.App.4th at pp. 1224, 1229.)
       First, the ordinary meaning of the word “notwithstanding” is “in spite of.”
(Webster’s 3d New Internat. Dict. (1993) p. 1545, col. 3.) It is well established that the
phrase “notwithstanding any other provision of law” is a term of art that expresses a
legislative intent to have the specific statute control despite the existence of other law that
might govern. (People v. Harbison (2014) 230 Cal.App.4th 975, 985.) Therefore, we
conclude the phrase “[n]otwithstanding Section 17417” means the bidding procedures set
forth in section 17417 do not apply to agreements covered by section 17406(a)(1). The
phrase “without advertising for bids” provides a further indication that competitive
bidding is not required for agreements falling with section 17406(a)(1).
       Second, the exception created by section 17406(a)(1) can reach both site leases
and facilities leases, provided they meet the statutory criteria. The reference to an
instrument that requires the lessee under a site lease “to construct on the demised
premises … a building or buildings for the use of the school district” clearly encompasses
the construction services provided by a contractor to a school district under a facilities
lease. (§ 17406(a)(1).) Therefore, a facilities lease that specifies the terms of
construction is eligible for the exception.
       The interpretation that the exception can apply to the entire lease-leaseback
arrangement is confirmed by the Attorney General’s statutory construction of the
predecessor of section 17406, former section 15705. (56 Ops.Cal.Atty.Gen., supra, at pp.
579-581; see Stats. 1959, ch. 2, § 1, pp. 1086-1087.) Under the heading “Leasing a
                                               16
completed school building,” the Attorney General discussed the statutory scheme and
opined:

               “It is concluded that the Legislature excluded an arrangement entered into
       under section 15705 from the notice and bid requirements. Because a school
       district is not required to obtain bids for lease arrangements under section 15705, it
       may lease its property for purpose of permitting the construction thereon of school
       buildings which the district will lease at such rental rates as the governing board
       deems in the best interests of the district without reference to competitive
       bidding.” (56 Ops.Cal.Atty.Gen., supra, at p. 581.)
       Based on the foregoing, we reject Davis’s argument that the exception to
competitive bidding in section 17406(a)(1) includes only site leases and excludes all
leases under which a school district obtains newly built facilities from a construction
firm, such as the Facilities Lease in this case.
       The foregoing statutory interpretation does not resolve all the questions presented
in this case about the meaning and application of section 17406(a)(1). The parties’
arguments raise questions about whether the Facilities Lease satisfied the criteria set forth
in section 17406(a)(1) and, as a result, qualified for the exception to the competitive
bidding process. These arguments present issues regarding the proper interpretation of
section 17406(a)(1) and how to apply that interpretation to the facts alleged in the FAC.
These additional issues of statutory construction, and the related issues of the sufficiency
of the taxpayer’s allegations, were not addressed in Los Alamitos, supra, 229 Cal.App.4th
1222 or any other published decision.
       D.     Satisfaction of the Exception’s Criteria
       Davis’s first cause of action includes the legal theory that the exception to
competitive bidding in section 17406 only applies to genuine or true leases. This legal
theory presents an issue of statutory construction. Specifically, does section 17406(a)(1)
require the leases in a lease-leaseback arrangement to be genuine to qualify for the
exception? If this statutory construction is adopted, we also must address whether


                                              17
Davis’s factual allegations are sufficient to support his claim that the Facilities Lease was
not a genuine lease.
              1.       Statute Requires a Genuine Lease and Financing
       Our interpretation of the statute begins with its words. Generally, the Legislature
uses words to indicate substance, not merely as labels. For example, in Williams v.
Superior Court (1993) 5 Cal.4th 337, the court refused to interpret a statute protecting
law enforcement “investigatory” files from disclosure to mean that any file labeled
“investigatory,” regardless of its nature, was shielded from disclosure. (Id. at p. 355.)
Based on the principle that words indicate substance, we conclude the word “lease” used
in section 17406(a)(1)’s phrase “buildings for the use of the school district during the
term of the lease” means something more than a document designated by the parties as a
lease. Rather, the Legislature chose the term to indicate the substance of the transactions
that are eligible for the exception.
       This interpretation is consistent with the way courts treated the concept of a lease
when section 17406(a)(1)’s predecessor was enacted in 1957. (See Stats. 1957, ch. 2071,
§ 1, p. 3683 [former § 18355].) For instance, in Parke etc. Co. v. White River L. Co.
(1894) 101 Cal. 37, the Supreme Court considered a document that purported on its face
to be a “lease.” (Id. at pp. 38-39.) The court stated: “This paper is not a lease. Calling it
a lease did not establish the fact. This is peculiarly a case where there is nothing in a
name, for the contents of the paper determine its true character.” (Id. at p. 39.) The court
indicated that the true legal effect and intentions of the parties to an agreement is
gathered from all of the language used in the instrument, not just the name given the
document or the language in a particular provision. (Id. at pp. 39-40; see San Francisco
v. Boyle (1925) 195 Cal. 426, 433-438; see also Heryford v. Davis (1880) 102 U.S. 235,
244 [form of an instrument is of little account; the legal effect of the whole is analyzed].)
       Moreover, this well-established disregard for labels in favor of an examination of
the substance of a document was applied by the California Supreme Court to a public
                                              18
works contract 15 years before the Legislature enacted section 17406(a)(1)’s predecessor.
In Offner, supra, 19 Cal.2d 483, the court considered whether a proposed agreement for
the construction and leasing to the city of a rubbish incinerator was unconstitutional
because it would create a debt in the year of its execution that exceeded the revenue then
available to the city. (Id. at p. 484.) The court recognized that the proposed agreement,
though designated as a “lease,” might be a subterfuge. (Id. at p. 486.) Consequently, the
court analyzed the agreement’s terms and the intention of the parties before it concluded
the proposed agreement constituted “in reality a lease with reasonable terms and option to
purchase” that did not violate the yearly debt restriction in the California Constitution.
(Id. at pp. 486-487.)
       The case law that existed prior to 1957 also leads us to conclude that the
Legislature used the word “lease” to indicate the substance required, not simply as a
label. (See Civ. Code, § 3528 [the substance-over-form principle].) In addition, our view
that the statutory exception is available only for genuine leases is supported by the
principle that exceptions to competitive bidding requirements “should be strictly
construed and restricted to circumstances which truly satisfy the statutory criteria.”
(Marshall v. Pasadena Unified School Dist., supra, 119 Cal.App.4th at p. 1256.) Thus,
to “truly satisfy the statutory criteria” in section 17406(a)(1) requires a true lease, not
simply a traditional construction contract designated as a lease by the parties.
       This interpretation of section 17406(a)(1) is not contradicted by legislative history.
Defendants have provided, and we have located, no legislative history stating or implying
that the criteria for the exception to competitive bidding is satisfied by any document the
parties have labeled a lease.10

10     Our review of legislative history did not uncover any material useful in deciding
the questions of statutory interpretation presented by this case. Consequently, we did not
take judicial notice of any legislative history on our own motion. (See Evid. Code, §
459.)

                                              19
       In summary, our review of the entire legislative scheme, the ostensible objects it
seeks to achieve, the evils to be remedied, and the underlying public policies lead us to
conclude the word “lease” refers to the substance of the transaction and means more than
a document designated a lease by the parties. Moreover, to fulfill the primary statutory
purpose of providing financing for school construction, the arrangement must include a
financing component. (See pt. II.A.2, ante.)
              2.     Relevant Factors
       The conclusion that the leaseback must be a true “lease” to satisfy the criteria in
section 17406(a)(1) leads to the question of what factors are relevant to determining the
true nature of an arrangement and whether it is a “lease” providing financing for purposes
of section 17406(a)(1).
       We conclude the true legal effect of the leaseback in question is based on the all
the terms of the document. (See Parke etc. Co. v. White River L. Co., supra, 101 Cal. at
p. 39.) Provisions in the document that are significant include those that define (1) who
holds what property rights and when those rights and interests are transferred between the
parties and (2) the amount and timing of the payments. (See Offner, supra, 19 Cal.2d at
p. 486.) The payment provisions, particularly the length of the period over which
payments are made, are important in this context because the primary purpose of the
legislation was to provide a source of financing for school construction and the payment
provisions will show whether the project is being financed through the contractor or
whether the school district is paying for the project by using funds from other source.
              3.     Sufficiency of the Allegations of a Subterfuge Lease
       Paragraph 24 of the FAC alleges that the Lease-Leaseback Contracts “are merely a
sham and subterfuge to avoid the requirements” in the Public Contract Code for
competitive bidding. It also alleges the payments required by the Facilities Lease were
are not real lease payments because they “(1) last only as long as the duration of the
construction; (2) are variable based upon the value of construction work performed by
                                             20
CONTRACTOR prior to the date of payment; (3) do not provide for any financing of the
work by CONTRACTOR (because its obligation to pay others who are actually providing
the labor, equipment, materials and services for the construction of the Project is
contingent upon it first receiving payment for the same from the DISTRICT); (4) the
lease payments end concurrently with the completion of construction of the Project by
CONTRACTOR; (5) the Project is being performed and administered in a manner
consistent with [the statute governing competitive bidding] rather than with Education
Code §§ 17400-17429; (6) the DISTRICT is withholding retention of its payments to
CONTRACTOR and requiring CONTRACTOR to provide payment and performance
bonds; (7) the DISTRICT does not have the right or practical ability to have beneficial
occupancy of the demised premises during the term of the Facilities Lease to use them for
their intended purposes.”
       These allegations are supported by the contents of the Site Lease and the Facilities
Lease and their attachments, such as the Construction Provisions, which were included in
the FAC as exhibits and incorporated by reference. Therefore, the terms of the Site Lease
and the Facilities Lease are before this court, which assists our analysis of the true
character of the transaction. (See pts. II.D.1 & II.D.2, ante.)
       First, we give little weight to the name “Facilities Lease” in evaluating the true
character of that document.
       Second, we conclude the terms in the Facilities Lease regarding the construction,
payment, use, occupancy, possession and ownership of the new facilities adequately
support Davis’s allegation that the arrangement is not a true lease that provided financing
for the project.
       The Facilities Lease included Contractor’s agreement to build facilities for Fresno
Unified in exchange for a guaranteed maximum price of $36.7 million. The amount of
Fresno Unified’s monthly payments to Contractor were based on the progress of the
construction. The final payment for the construction became due upon the completion
                                              21
and acceptance of the construction. Once the final payment was made, both the Facilities
Lease and the Site Lease terminated.
       Generally, the payment terms set forth in a contract are an important part of the
substance of a transaction and directly relevant to whether the transaction is a true lease
or a purchase. (See Offner, supra, 19 Cal.2d at p. 486.) Here, the payment terms were
identified in the Construction Provisions as progress payments for construction services
and the amount paid each month was determined by the value of construction services
completed, less a 5 percent retention. This type of payment schedule is common in
construction contracts. (See 4 Miller & Starr, Cal. Real Estate Forms (2d ed. 2006) § 4:4,
pp. 36-61 [90% progress payments and a 10% retention used in construction agreement
based on cost plus a percentage fee of the guaranteed maximum price].) In contrast,
payments made under a lease usually are correlated to a period (e.g., monthly) during
which the lessee occupies and uses the real property. (See Black’s Law Dictionary,
supra, p. 970 [defines lease as a “contract by which a rightful possessor of real property
conveys the right to use and occupy the property in exchange for consideration, usu.
rent”].)
       Consequently, the substance of the payment terms in the Facilities Lease is that of
compensation for construction, not payment for a period of use of the facilities.
Moreover, the payment terms support the allegation that Contractor did not provide any
financing to Fresno Unified under the Facilities Lease. Thus, the payment terms and the
lack of financing support the allegation that the Facilities Lease was not a genuine lease.
       Besides the payment terms, the provisions in the Facilities Lease addressing
Fresno Unified’s right to occupy and use of the new facilities and its ownership of those
facilities shows the true character of the Facilities Lease is something other than a lease.
The Facilities Lease stated that, during its term, Fresno Unified would obtain title to the
project as construction progresses and corresponding payments were made to Contractor.
Also, any remaining right, title or interest in the project and site was transferred to Fresno
                                              22
Unified upon it making the final payment. Thus, the combination of a relatively short
payment schedule and the transfer of title when the final payment was made meant that
(1) Contractor never acted in the capacity of a landlord holding rights to real property
occupied by a tenant and (2) Fresno Unified never occupied and used the new facilities as
a tenant. In addition to these provisions in the Facilities Lease, Davis specifically alleged
that Fresno Unified did not have the right or practical ability to occupy and use the new
facilities during the term of the Facilities Lease.
       The provisions about use, occupancy and title, and the fact that Fresno Unified
never occupied and used the project before making its final payment, provide sufficient
support for Davis’s legal theory that the substance of the transaction was a traditional
construction contract and not a true lease that included a financing component. (Cf. 4
Miller & Starr, Cal. Real Estate Forms, supra, § 4:5, p. 115 [provision in construction
contract addressing title to labor, materials and equipment states all title thereto will pass
to the owner upon receipt of payment by contractor].)
       Therefore, we conclude that Davis’s allegations are sufficient to state a cause of
action for a violation of the competitive bidding requirements in section 17417 or Public
Contract Code section 20111.
              4.      Use During the Term of the Lease
       Davis’s first cause of action also alleges the Lease-Leaseback Contracts violated
the statute because they did not require Contractor “to construct on the demised premises
… buildings for the use of the school district during the term of the lease.” (§
17406(a)(1), italics added.) Davis interprets this statutory text to mean Fresno Unified
was required to use the newly constructed buildings “during the term of the lease.” He
contends he adequately alleged that Fresno Unified failed to satisfy this criterion. This
legal theory presents other issues of statutory interpretation that have not been addressed
in a published decision.


                                              23
       Our analysis of the statutory language begins with the meaning of the word “use”
that appears in the prepositional phrase “for the use.” In the context of a building, we
conclude “use” refers to the occupation and utilization of the building in school
operations.
       Next, we consider the meaning of the prepositional phrase “of the school district,”
which follows immediately after the phrase “for the use.” (§ 17406(a)(1).) We conclude
the phrase “of the school district” signals who must “use” the buildings constructed on
the leased premises. Thus, the wording “for the use of the school district” is the
equivalent of the phrase “for the school district’s use.” Consequently, the building
constructed pursuant to the instrument referred to in section 17406(a)(1) must be used by
the school district and not another entity.
       The phrase “during the term of the lease” follows immediately after the wording
“for the use of the school district.” (§ 17406(a)(1).) We conclude this phrase modifies
the word “use” by identifying when the school district’s use must occur. Defendants
appear to argue that the phrase modifies only “to construct” and its sole function is to
identify when the construction must occur. We reject this interpretation based on the
syntactic canon of statutory construction labeled by Scalia & Garner, Reading Law: The
Interpretation of Legal Text (2012) as the nearest-reasonable-referent canon: “When the
syntax involves something other than a parallel series of nouns or verbs, a prepositive or
postpositive modifier[11] normally applies only to the nearest reasonable referent.” (Id. at
p. 152.) In section 17406(a)(1), the terms “to construct” and “for the use” are not parallel
phrases. Thus, under the nearest-reasonable-referent canon, the language in the phrase
“buildings for the use of the school district during the term of the lease” should be
interpreted so that the words “during the term of the lease” modify “the use of the school


11    Here, the phrase in question is postpositive because it is positioned after both the
word “construct” and the word “use.” (Scalia & Garner, supra, at p. 148.)

                                              24
district”—the phrase to which they are nearest. Consequently, for a leaseback
arrangement to qualify for the exception to the competitive bidding requirement, there
must be a lease term during which the school district, as tenant, makes use of the newly
built facilities. If, from a substantive point of view, there is no period during which the
school district uses the new facilities while leasing them from the construction firm, the
arrangement does not conform to the requirements of section 17406 and, therefore, would
be subject to the competitive bidding procedures.
       This interpretation is consistent with the Attorney General’s statutory construction
of the predecessor section 17406, former section 15705. (56 Ops.Cal.Atty.Gen., supra, at
pp. 579-581; see Stats. 1959, ch. 2, § 1, pp. 1086-1087.) Under the heading “Leasing a
completed school building,” the Attorney General stated:

               “Because a school district is not required to obtain bids for lease
       arrangements under section 15705, it may lease its property for the purpose of
       permitting the construction thereon of school buildings which the district will
       lease at such rental rates as the governing board deems in the best interests of the
       district without reference to competitive bidding.” (56 Ops.Cal.Atty.Gen., supra,
       at p. 581, italics added.)
       Defendants argue that because the legislation identifies a maximum term of 40
years (§ 17403) and provides for no minimum term for leases related to the construction
of buildings, this court should infer that the Legislature did not intend a minimum length
for the leaseback of the newly built facilities from the construction firm to the school
district. (See Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 389
[expressio unius est exclusio alterius is a maxim of statutory construction that means the
express inclusion of one thing implies the exclusion of the other].) This maxim of
statutory construction supplies an inference about intent based on legislative silence.
Here, section 17406(a)(1) contains an explicit requirement that the school district use the
new buildings “during the term of the lease.” The Legislature’s reference to “the term of
the lease” and the principle that words indicate substance support the inference that the


                                             25
Legislature intended this language to have substance, rather than merely specifying a
formal or a de minimis requirement.12
       In summary, a lease-leaseback arrangement qualifies for the exception to
competitive bidding created by section 17406(a)(1) only if the instrument containing the
leaseback requires the construction firm “to construct on the demised premises … a
building or buildings for the use of the school district during the term of the lease.” We
interpret this statutory language to mean the leaseback must have a term during which the
school district uses the new buildings.
              5.     Sufficiency of the Particular Facts Alleged
       The next step of our analysis is to review the FAC to determine whether Davis has
alleged facts sufficient to support his legal theory that the Facilities Lease was subject to
competitive bidding because Fresno Unified failed to satisfy the statutory criterion for use
of the buildings by the school district “during the term of the lease.” (§ 17406(a)(1).)
       Paragraph 24 of the FAC alleged that Fresno Unified “does not have the right or
practical ability to have beneficial occupancy of the demised premises during the term of
the Facilities Lease to use them for their intended purposes.”
       This allegation, which was made before the completion of the project and
termination of the leases, directly addresses whether the Facilities Lease provided for the
construction of “buildings for the use of the school district during the term of the lease.”
(§ 17406(a)(1).) Treating this allegation as true for purposes of the demurrer (Dinuba,

12      The allegations in the FAC, which were confirmed by Fresno Unified’s counsel
during oral argument, do not present a situation where the school district used the project
during a very short leaseback period. Thus, we are not presented with the question of
how long the leaseback period must be to qualify for the exception in section 17406, an
issue that could be rephrased as how long a district use and occupy the project as a tenant
before the “true character” of the transaction is a lease and not a traditional construction
contract. (See Parke etc. Co. v. White River L. Co., supra, 101 Cal. at p. 39; Civ. Code, §
3533 [the law disregards trifles]; Miller v. Williams (1901) 135 Cal. 183, 184 [de minimis
principle].)

                                              26
supra, 41 Cal.4th at p. 865), we conclude Davis has adequately alleged the Facilities
Lease did not satisfy a criterion of section 17406(a)(1) because it did not provide for
Fresno Unified to use the new constructed buildings during the term of the lease.
       E.     Summary Regarding Competitive Bidding
       We conclude the first and third causes of action13 adequately allege that
defendants violated the statutory requirements for competitive bidding because the Lease-
Leaseback Contracts failed to “truly satisfy the statutory criteria” for the exception to
competitive bidding set forth in section 17406(a)(1). (Marshall v. Pasadena Unified
School Dist., supra, 119 Cal.App.4th at p. 1256.) Specifically, Davis has alleged (1) the
exception is available only for genuine leases and the subject leaseback agreement was
simply a traditional construction agreement, (2) the Lease-Leaseback Contracts did not
include a financing component for the construction of the project, and (3) the Lease-
Leaseback Contracts did not provide for Fresno Unified’s “use” of the new constructed
buildings “during the term of the lease.” (§ 17406(a)(1).)
III.   IMPROPER USE OF LEASE ARRANGEMENTS WHEN SUFFICIENT FUNDS
       ARE AVAILABLE—FIFTH CAUSE OF ACTION
       A.     Allegations and Legal Theories
       The FAC’s fifth cause of action, like his first, alleges the Lease-Leaseback
Contracts were ultra vires and void because they did not comply with certain
requirements in the Education Code. These requirements are derived from two separate
legal theories or interpretations of the Educations Code.



13      The first cause of action states a claim based on the legal theory that defendants
failed to comply with the requirements of section 170406(a)(1) and, therefore, failed to
qualify for the exception to the competitive bidding requirements. The third cause of
action alleged defendants violated the competitive bidding requirements in section 17417.
Thus, for purposes of the demurrer, we regard the causes of action as setting forth
overlapping legal theories and will not address the third cause of action separately.

                                             27
              1.      The No-Available-Funds Theory
       The first legal theory asserts the lease-leaseback method for completing a school
construction project “is only available for use by school districts in California as a means
to finance the cost of construction over time when they do not have sufficient immediate
funds available to them to cover the cost of construction.” Davis alleged this requirement
was violated because voter-approved bond sales provided Fresno Unified with “sufficient
funds available to it to cover the immediate costs of construction of the Project as they
are incurred ….”
              2.      Leaseback Must Provide Financing Theory
       The second legal theory asserts that the statutory scheme authorizing lease-
leaseback arrangements “requires the cost of construction be advanced and carried over a
period of many years by the party to whom the lease-leaseback contracts are awarded.”
       We will not analyze this legal theory separately because it is part of the first cause
of action. (See pt. II.E, ante.)
              3.      SAB Report
       Davis supports his legal theory that lease-leaseback arrangements are permitted
only when funding is not otherwise available by referring to a Report of the Executive
Officer to the State Allocation Board for its January 28, 2004, meeting (SAB Report).14
The SAB Report was attached to the FAC as exhibit D and states in part:

       “Sections 17400 et al., including [section] 17406, make up Article 2 of
       Chapter 4 of Part 10.5 of the [Education Code] entitled Leasing Property.
       It describes the requirements imposed on school districts considering the
       acquisition of school facilities through lease agreements. As confirmed by
       the Appeals Court ruling in [Morgan Hill Unified School District v.

14    The State Allocation Board and the staff of the Office of Public School
Construction implement and administer California’s school facilities construction
program, which includes apportioning money from a state fund and determining which
schools are eligible to receive funding. (See Sanchez v. State of California (2009) 179
Cal.App.4th 467, 473-474.)

                                             28
       Amoroso, supra, 204 Cal.App.3d 1083], the article is about financing. In
       that case the court stated that, ‘The Education Code creates the following
       method for financing school construction.’ The court then went on to
       describe … Sections 39300 through 39325, which are now renumbered as
       17400 through 17425. Thus [sections] 17400 through 17425 is a method of
       financing school construction in which [section] 17406 addresses the
       mechanism by which the school district can let the property where the
       construction will take place.

       “Staff believes that virtually none of the projects currently using lease-
       leaseback arrangements actually have financing provided by the developer.
       If a ‘lease agreement’ other than the site lease exists at all, it serves no
       significant purpose other than as a construction contract. The full cost of
       the project is borne by the district using normal funds it has available for
       capital projects. Normal progress payments are made to the contractor
       through the course of construction, and the project is completely paid for by
       the district at the project completion. The projects are in every regard
       typical public works projects, except that they have not been competitively
       bid.

       “Since no financing exists in the lease lease-back arrangement (or there is
       no lease agreement at all), the use of Article 2 appears to be inappropriate.”
              4.     Defendant’s Arguments
       Defendants argue the express requirements of section 17406 were met in this case.
As to the SAB Report, defendants contend the opinions expressed in it should be given
little weight because (1) the interpretation of the statutes involves a pure issue of law and
this type of interpretation is solely a judicial function; (2) the SAB Report was not
formally adopted by the State Allocation Board and was not vetted in accordance with the
California Administrative Procedures Act; and (3) subsequent legislation that sought to
address some of the issues raised in the SAB Report never became law because of a
Governor veto of Assembly Bill No. 1486 (2003–2004 Reg. Sess.).
       B.     Analysis
       We reject Davis’s legal theory that the statutory scheme restricts the use of lease-
leaseback arrangements to situations where the school district does not have sufficient
available funds to cover the cost of building the new facilities.

                                             29
       First, there is no express provision in the statutes limiting school district’s use of
lease-leaseback arrangements to situations where the school district funds are not
otherwise available.
       Second, Davis has identified no ambiguous provision in the statutes that could be
construed in a manner to include such a broad limitation. Although exceptions to
competitive bidding are to be narrowly construed, the concept of strict construction does
not empower courts to narrow the scope of the statutory exception by imposing
conditions or limitations the Legislature did not include in the statute. (See Code Civ.
Proc., § 1858 [courts interpreting a statute should not “insert what has been omitted” by
the Legislature].)
       Third, the views expressed in the SAB Report do not actually include the
interpretation advocated by Davis. Specifically, the SAB report does not state that the
legislation restricts the availability of the lease-leaseback method to situations where
other funding is not available. In other words, the report’s reference to a case stating the
“Education Code creates the following method for financing school construction”
(Morgan Hill Unified School Dist. v. Amoroso, supra, 204 Cal.App.3d at p. 1086) does
not imply that method is allowed only if other methods of financing are not available.
IV.    BREACH OF FIDUCIARY DUTY—SECOND CAUSE OF ACTION
       A.     Allegations
       The FAC’s second cause of action alleged that Fresno Unified’s board had a
fiduciary duty to the residents and taxpayers within Fresno Unified and that duty applied
to the board’s approval of expenditures for a multi-million dollar construction project.
The FAC also alleged Fresno Unified’s board breached the fiduciary duty by (1) failing
to consider less expensive alternatives to the project, (2) failing to consider whether the
price was reasonable, (3) failing to exercise due diligence to determine whether the price
paid could be lower, (4) knowing the price paid could have been lower, (5) failing to


                                              30
solicit bids for the work, (6) failing to proceed in a manner that would secure the best
price, and (7) failing to proceed in a manner required by law. In short, Davis alleged
Fresno Unified’s board breached its fiduciary duty by overpaying for the project.
       The FAC contends that because Fresno Unified did not comply with its fiduciary
duties, the Lease-Leaseback Contracts are ultra vires, void and unenforceable and “all
money paid thereunder must be returned by CONTRACTOR to DISTRICT.”
       B.      Breach of Fiduciary Duty
       In litigation between private parties, the elements of a cause of action for breach of
fiduciary duty are (1) the existence of a fiduciary duty, (2) a breach of the fiduciary duty,
and (3) damage proximately caused by the breach. (Gutierrez v. Girardi (2011) 194
Cal.App.4th 925, 932.) When a claim for breach of fiduciary duty is asserted against a
public official by the Attorney General or a taxpayer, the damage element can be satisfied
by alleging the official obtained profits from the unauthorized act. (People ex rel. Harris
v. Rizzo (2013) 214 Cal.App.4th 921, 950 [breach of fiduciary duty claim stated against
council members who paid themselves excessive salaries].) In these cases, the relief
available is restitution, which can include the disgorgement of profits obtained by the
public official. (Id. at p. 951, fn. 30.)
       C.      Analysis
       Here, the FAC requests that Contractor return all money paid to it under the
Lease-Leaseback Contracts, but does not allege Contractor was subject to a fiduciary
duty. As to the persons who allegedly breached their fiduciary duty (i.e., Fresno
Unified’s board), the FAC does not allege they profited from the transactions and does
not request restitution or the disgorgement of profits. Furthermore, the relief sought for
the alleged breach of fiduciary duty is against Contractor, a party who did not have a
fiduciary duty. Accordingly, the second cause of action failed to allege facts sufficient to
state a claim for breach of fiduciary duty. (See People ex rel. Harris v. Rizzo, supra, 214


                                             31
Cal.App.4th at p. 950 [city’s police chief who negotiated excessive salary did not breach
a fiduciary duty because any duty would have arisen only after the contract was executed;
demurrer properly sustained as to cause of action against him].)
V.     CONFLICT OF INTEREST—FOURTH CAUSE OF ACTION
       Davis’s fourth cause of action attempts to state a conflict of interest claim based
upon (1) common law conflict of interest principles, (2) Government Code section 1090
et seq. and (3) the provisions of California’s Political Reform Act of 1974, Government
Code section 81000 et seq.
       A.     Political Reform Act of 1974
              1.     Conflict of Interest Provisions
       Chapter 7 of the Political Reform Act of 197415 addresses conflicts of interest by
public officials. This chapter contains Government Code section 87100, which states:
“No public official at any level of state or local government shall make, participate in
making or in any way attempt to use his official position to influence a governmental
decision in which he knows or has reason to know he has a financial interest.”
       The term “public official” is defined for purposes of the Political Reform Act of
1974 to mean “every member, officer, employee or consultant of a state of local
government agency.” (Gov. Code, § 82048, subd. (a), italics added.)
              2.     Allegations in FAC
       The FAC contains the following allegations. Contractor had a prior contract with
Fresno Unified that created a conflict of interest and, therefore, precluded Contractor
from being awarded the Lease-Leaseback Contracts. Pursuant to the prior contract,


15    The act contains Government Code sections 81000 through 91014 and is
designated title 9 of that code. Chapter 7 contains eight articles consisting of
Government Code sections 87100 through 87505. This detail about title 9 and its
chapters is provided because the definition of “public official” in chapter 2 is used to
determine the reach of the conflict of interest provisions in chapter 7.

                                             32
Contractor acted as a consultant and provided Fresno Unified with professional
preconstruction services related to the project, which included the development of plans,
specifications and other construction documents for the project. Contractor was paid by
Fresno Unified for consulting on the project and had a hand in designing and developing
plans and specifications by which the project is being constructed.
       The FAC referred to Government Code section 81000 et seq., but not the specific
provision that contains the prohibition against conflicts of interest, Government Code
section 87100. The FAC also cited the definition of “public official” in Government
Code section 82048, subdivision (a).
              3.     The Demurrers, Opposition and Replies
       The demurrers of Fresno Unified and Contractor address the conflict of interest
claim under the Political Reform Act of 1974 by asserting (1) it was enacted so that
public officials would perform their duties in an impartial manner without bias caused by
their own financial interest and (2) elected officials are required to file annual statements
disclosing their financial interests. Defendants argued Davis did not and could not allege
Contractor was an elected official or even a designated official to whom the act would
apply. They quote a bylaw of Fresno Unified that requires persons in designated
positions to file a full statement of economic interest and then assert Contractor is not one
of the designated officials. From this foundation, defendants contend the “Political
Reform Act of 1974 simply does not apply to [Contractor] in this case.”16
       In his opposition, Davis cited Government Code section 87100, the conflict of
interest provision in the Political Reform Act of 1974, and relied on its requirement that
no public official shall participate in making a governmental decision in which the

16      Defendants cite Government Code sections 87203 (annual statement) and 87207
(income statement). These citations are off the mark because the sections are in the
article addressing disclosure, not the article containing the prohibition against a conflict
of interest.

                                              33
official knows he has a financial interest. One implication of Davis’s reference to “no
public official” is that the conflict of interest provision is not limited to the elected and
designated officials described in the demurrers.
       Defendants’ reply papers ignored the statutory language in Government Code
section 87100 and the definition of “public official” in Government Code section 82048,
subdivision (a) that extends to consultants. The replies reasserted that Davis “has not
alleged and cannot allege [Contractor] is an elected official or even a designated official
that the Act would apply.”
       The minute order sustaining the demurrer to the conflict of interest cause of action
mentioned Government Code section 1090, but did not refer to Government Code section
87100 or the statutory definition of public official that includes consultants.
              4.      A Corporate Consultant Is Not a Public Official
       The definition of “public official” in Government Code section 82048, subdivision
(a), unambiguously applies to all of the Political Reform Act of 1974, including its
prohibition against conflicts of interest. Specifically, Government Code section 82000
states that the definitions set forth in chapter 2 of the Political Reform Act of 1974 govern
the interpretation of title 9, which title contains all provisions of the Political Reform Act
of 1974. Therefore, the public officials mentioned in the conflict of interest provision
include consultants. (See Gov. Code, § 82048, subd. (a) [“public official” defined to
include consultants].)
       Thus, Davis’s allegation that Contractor provided services to Fresno Unified as a
paid consultant is sufficient to raise the possibility that Contractor was a “public official”
subject to conflicts of interest in Government Code section 87100.
       The term “consultant” is not defined by the Political Reform Act of 1974, but the
regulations promulgated under the act contain a definition. (See League of California
Cities, Cal. Municipal Law Handbook (Cont. Ed. Bar 2014) § 2.114, p. 155 [consultant
included in list of key definitions].) A consultant is “an individual who, pursuant to a
                                               34
contract with a state or local government agency [¶] (1) [m]akes a governmental
decision .…” (Cal. Code Regs., tit. 2, § 18704.6, subd. (a).) The appellate briefing has
not mentioned this regulatory definition and, consequently, Davis has not argued the
regulation is invalid. (See Gov. Code, § 11342.2 [no regulation is valid unless consistent
and not in conflict with the statute].) Therefore, we accept the regulatory definition of
“consultant” as valid and applicable to this case.
       Davis alleged that Contractor “is, and at all times mentioned was, a California
corporation, doing business in the City of Fresno and State of California.” As a
corporation, Contractor falls outside the regulatory definition of “consultant” that refers
to individuals. Therefore, we conclude Contractor is not a “public official” subject to the
conflict of interest provisions in the Political Reform Act of 1974.
       It follows that the FAC failed to state a cause of action against Contractor for
violating the conflict of interest prohibition in Government Code section 87100.
       B.     Government Code Section 1090
              1.      Basic Principles Governing Conflict of Interest Claims
       Government Code section 1090, subdivision (a) provides in part: “Members of
the Legislature, state, county, district, judicial district, and city officers or employees
shall not be financially interested in any contract made by them in their official capacity,
or by any body or board of which they are members.” One of the consequences for a
civil violation of this rule is set forth in Government Code section 1092: “(a) Every
contract made in violation of any of the provisions of [Government Code] Section 1090
may be avoided at the instance of any party except the officer interested therein.”17


17     The term “any party” is not restricted to parties to the contract. Defendants did not
base their demurrer on the ground Davis lacked standing to bring the conflict of interest
claim under Government Code section 1090 since it is recognized that either the public
agency or a taxpayer may seek relief for a violation of section 1090. (E.g., Thomson v.
Call (1985) 38 Cal.3d 633 [taxpayer suit successfully challenged validity of land transfer
                                               35
       Government Code section 1090 “codifies the long-standing common law rule that
barred public officials from being personally financially interested in the contracts they
formed in their official capacities.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050,
1072 (Lexin).) The prohibition is based on the rationale that a person cannot effectively
serve two masters at the same time. “‘If a public official is pulled in one direction by his
financial interest and in another direction by his official duties, his judgment cannot and
should not be trusted, even if he attempts impartiality.’ [Citation.]” (Id. at p. 1073.)
Consequently, Government Code section 1090 is designed to apply to any situation that
“would prevent the officials involved from exercising absolute loyalty and undivided
allegiance to the best interests of the [public entity concerned].” (Stigall v. City of Taft
(1962) 58 Cal.2d 565, 569 (Stigall).) Government Code section 1090’s goals include
eliminating temptation, avoiding the appearance of impropriety, and assuring the public
of the official’s undivided and uncompromised allegiance. (Thomson v. Call, supra, 38
Cal.3d at p. 648.)
       Courts evaluating a conflict of interest claim under Government Code section
1090 must consider “(1) whether the defendant government officials or employees
participated in the making of a contract in their official capacities, (2) whether the
defendants had a cognizable financial interest in that contract, and (3) (if raised as an
affirmative defense) whether the cognizable interest falls within any one of section
1091’s or section 1091.5’s exceptions for remote or minimal interests. [Citations.]”
(Lexin, supra, 47 Cal.4th at p. 1074.)
       The breadth of what it means to participate in the making of a contract is
illustrated by Stigall. In that case, a taxpayer filed an action seeking to have a contract
for plumbing work related to construction of a civic center declared invalid. (Stigall,


from city council member through intermediaries to city]; see Kaufmann & Widiss, The
California Conflict of Interest Laws (1963) 36 So.Cal. L.Rev. 186, 200.)

                                              36
supra, 58 Cal.2d at p. 566.) The trial court sustained a demurrer to the complaint,
concluding the taxpayer failed to allege facts showing a prohibited conflict of interest.
The Supreme Court reversed and directed the demurrer to be overruled. (Id. at p. 571.)
       In Stigall, the complaint alleged the member of the city council in charge of the
council’s building committee owned more than 3 percent of the stock of a plumbing
company and the building committee supervised the drawing of plans and specifications
for a civic center. (Stigall, supra, 58 Cal.2d at pp. 566-567.) When the bids for the
construction work were received and opened, the council member’s plumbing company
was the low bidder for the plumbing work. (Id. at p. 567.) After objections were made to
awarding the contract to the council member’s plumbing company, the council rejected
all bids and advertised for new round of bidding. (Ibid.) Subsequently, the council
member resigned and the council awarded the construction contract to a general
contractor that had included a sub-bid for the plumbing work from the former council
member’s plumbing company. (Ibid.)
       The Supreme Court addressed the timing of the council member’s resignation and
whether he “made” the contract entered into by the plumbing company. (Stigall, supra,
58 Cal.2d at pp. 568-569.) The court determined the use of technical terms and rules
governing the making of contracts was not appropriate and construed the word “made”
broadly in light of the statutory objective to “limit the possibility of any personal
influence, either directly or indirectly which might bear on an official’s decision.” (Id. at
p. 569.) The court concluded the term “made” encompassed the planning, preliminary
discussions, and drawing of plans and specification. (Id. at p. 571.) Because the former
council member had participated in all of these activities involving the contract and was
financially interested in the plumbing company, the court concluded the complaint
alleged a violation of the conflict of interest provision in Government Code section 1090.




                                              37
              2.     Contentions
       Davis contends that the conflict of interest provision in Government Code section
1090 extends to independent contractors and consultants who are involved in the contract
process on behalf of the public entity and have an interest in the resulting contract. Davis
relies on two decisions that applied the conflict of interest provision to independent
contractors and consultants. (See Hub City Solid Waste Services, Inc. v. City of Compton
(2010) 186 Cal.App.4th 1114, 1124-1125 (Hub City); California Housing Finance
Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148
Cal.App.4th 682, 693 (Hanover).)
       Defendants contend Hub City and Hanover are readily distinguishable from the
facts pled in the FAC and, in any event, the expansion of liability adopted in those cases
has been harshly criticized by the court in People v. Christiansen (2013) 216 Cal.App.4th
1181, at pages 1189 through 1190. Defendants also contend that section 17250.10
demonstrates that the Legislature is not concerned with situations where a single entity
acts as both the designer and builder of the same project.18
              3.     Analysis
       Government Code section 1090 applies to district “officers or employees.” The
decisions in Hub City and Hanover extended the conflict of interest prohibition to
consultants, but did not address whether, for purposes of Government Code section 1090,
corporate consultants could be regarded as “officers or employees” of the local agency.
       In Hanover, the conflict of interest claims were pursued against two individuals
and not against the corporation that actually entered into the contact with the public
agency. (Hanover, supra, 148 Cal.App.4th at p. 684.)

18      Fresno Unified and Contractor did not utilize the design-bid procedures contained
in sections 17250.10 through 17250.50. Therefore, even if that legislation is interpreted
as creating an exception to the conflict of interest provisions, the exception would not
apply to Contractor in this case.

                                             38
       In Hub City, the appellants challenged the adverse judgment on a conflict of
interest claim by arguing that corporate consultants do not owe municipalities a fiduciary
duty. (Hub City, supra, 186 Cal.App.4th at p. 1125.) The court did not decide this
argument, concluding that the limited liability company’s status as the contracting entity
with the city was immaterial because the actions of the company’s president fell within
the scope of Government Code section 1090. (Hub City, supra, at p. 1127.) Thus, the
court’s decision was based on the fact the president of the consulting company was an
“officer” under the statute and his individual actions influenced the city’s contracting
decisions. (Id. at p. 1125.) As to the evidence presented, the court concluded it
established that the president’s actions fell within the ambit of Government Code section
1090 because he was intricately involved in the city’s waste management decisions and
proposed franchising the city’s waste management decisions. (Hub City, supra, at p.
1125.) As a result, the subsequent franchise agreement between the city and another of
the president’s companies was invalidated.
       In summary, the courts in Hanover and Hub City interpreted the statute broadly to
include individuals who were consultants to the public agency, but neither court decided
whether the statutory terms “officers” or “employees” should be expanded to include
legal entities such as corporations or limited liability companies.
       First, we conclude that the stricter definition of the statutory terms adopted by the
court in People v. Christiansen, supra, 216 Cal.App.4th 1181 is appropriate in the context
of criminal prosecution, but is not appropriate in the context of civil actions seeking to
invalidate a contract with a public entity. In Stigall, a civil action, the Supreme Court
interpreted the statutory terms broadly to implement to objectives of the conflict of
interest statute and did not rely on technical definitions or rules to limit the reach of the
statute. Similarly, we conclude that technical definitions of the term “employee” taken
from other areas of law should not be used to limit the scope of Government Code section
1090. Therefore, we join the courts in Hanover and Hub City in concluding that, in civil
                                              39
actions, the term “employees” in Government Code section 1090 encompasses
consultants hired by the local government.
       Second, as to whether the word “employees” should be interpreted to exclude
corporate consultants, we conclude that corporate consultants should not be categorically
excluded from the reach of Government Code section 1090. Such a statutory
interpretation would allow the use of the corporate veil to insulate conflicts of interest
that otherwise would violate the prohibition against local government officers and
employees from making contracts in which they are financially interested. A corporate
consultant is as capable of influencing an official decision as an individual consultant.
Because the statute’s object is to limit the possibility of any influence, direct or indirect,
that might bear on an official’s decision (Stigall, supra, 58 Cal.2d at p. 570), we conclude
the allegations that Contractor served as a professional consultant to Fresno Unified and
had a hand in designing and developing the plans and specifications for the project are
sufficient to state that Contractor (1) was an “employee” for purposes of Government
Code section 1090 and (2) participated in making the Lease-Leaseback Contracts.
       Third, the FAC alleged that Fresno Unified and Contractor entered into the Lease-
Leaseback Contracts pursuant to which Contractor agreed to build the project for a
guaranteed maximum price of $36.7 million. These allegations are sufficient to state that
Contractor was “financially interested in” the Lease-Leaseback Contracts for purposes of
Government Code section 1090.
       In summary, Davis has alleged sufficient fact to state of cause of action for a
violation of the conflict of interest provisions in Government Code section 1090.
Contrary to defendants’ argument, it does not appear that a plaintiff is required to include
detailed allegations of actual influence on the decision to award the contract in question.
(See Stigall, supra, 58 Cal.2d 565.) Ultimately, whether Davis will be able to prove
Contractor violated the conflict of interest provision of Government Code section 1090


                                               40
will depend upon the facts established by the evidence. For purposes of demurrer, Davis
has alleged sufficient facts to state a cause of action.
       C.      Common Law Conflict of Interest
       In Lexin, the Supreme Court stated that Government Code section 1090 “codifies
the long-standing common law rule that barred public officials from being personally
financially interested in the contracts they formed in their official capacities.” (Lexin,
supra, 47 Cal.4th at p. 1072.) The statutes’ overlap with the common law rule is not
completed because the statutes are concerned with financial conflicts of interest and the
common law rule encompassed both financial and nonfinancial interests that could result
in divided loyalty. (See Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152,
1171, fn. 18 [Political Reform Act of 1974 focuses on financial conflicts of interest while
the common law extended to noneconomic conflicts of interest].)
       Because we have concluded the FAC stated a cause of action under Government
Code section 1090, it follows that Davis also has stated a common law claim for a
conflict of interest.
VI.    DECLARATORY RELIEF
       Davis’s seventh cause of action is based on the previously alleged violations of the
Education Code and the need for competitive bidding. This declaratory relief claim
depends upon the other causes of action and does not set forth an independent basis for
relief. Because we have determined that some causes of action stated facts sufficient to
allege a claim, we will allow the request for declaratory relief to remain part of the
litigation.
                                       DISPOSITION
       The judgment is reversed. The trial court is directed to vacate its order sustaining
the demurrer and enter a new order (1) sustaining the demurrer as to the breach of
fiduciary duty claim, the violation of the Political Reform Act of 1974 claim, and the fifth


                                               41
cause of action alleging the use of the lease-leaseback arrangement is improper when
funds are available to a school from another source and (2) overruling the demurrer as to
the other causes of action.
       Plaintiff shall recover his costs on appeal.


                                                                 ____________________
                                                                            Franson, J.

WE CONCUR:

______________________
Levy, Acting P. J.

______________________
Gomes, J.




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