Filed 10/28/15 Taylor v. City of Colton CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



GAYLENE SINGLETARY TAYLOR, as
Co-trustee, etc.,
                                                                          E058348
      Plaintiffs, Cross-defendants and
Appellants,                                                               (Super.Ct.No. CIVSS800216)

v.                                                                        OPINION

CITY OF COLTON,

      Defendant, Cross-complainant and
Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,

Judge. Affirmed in part and reversed in part.

         Law Offices of Courtney M. Coates and Courtney M. Coates for Plaintiffs,

Cross-defendants and Appellants.

         Best Best & Krieger, Kira L. Klatchko and Irene S. Zurko for Defendant, Cross-

complainant and Appellant.




                                                              1
       This court previously addressed this case when it was at the anti-SLAPP stage of

the proceedings. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 757 [Fourth

Dist., Div. Two].) The case is now at the summary adjudication stage. At the trial

court, Gaylor W. Singletary (Singletary)1 brought a Third Amended Complaint (TAC)

for (1) promissory estoppel; (2) breach of contract; (3) declaratory relief; and (4) unjust

enrichment. Defendant, cross-complainant and appellant City of Colton (the City) filed

a First Amended Cross-complaint (FACC) for (1) breach of contract; (2) breach of the

implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) unfair

business practices; (5) declaratory relief; (6) injunctive relief; and (7) indemnity.

       Singletary owned real property in the City, near where Center Street may be

extended. In 1992, Singletary sought to subdivide his property. As part of the

subdivision plan, Singletary agreed to construct infrastructure for the property, such as

water and sewer systems. In the late 1990s, Singletary bribed a member of the City’s

City Council in exchange for the councilmember influencing the City to approve a

development plan (the Center Street Extension Project), which would result in the City

constructing the infrastructure—the same infrastructure Singletary had agreed to

construct. In 1999, the City Council approved a construction plan, which placed the




       1  On April 5, 2015, Gaylor W. Singletary passed away; we granted the motion
for substitution of a party, substituting Gaylene Singletary Taylor, as Successor Co-
trustee of GW Singletary Private Revocable Living Trust of October 27, 1998. For
clarity and ease of reference, with no disrespect intended, we refer to Gaylor Singletary
in the body of this opinion.


                                              2
burden on the City to construct the infrastructure. In 2003, Singletary pled guilty to a

charge of bribery. (18 U.S.C. § 666.)

       Singletary’s lawsuit sought to have the City held responsible for constructing the

infrastructure along Center Street. The City’s lawsuit sought to have Singletary held

responsible for constructing the infrastructure. Singletary and the City brought motions

for summary judgment, or in the alternative, summary adjudication. The trial court

denied the motions for summary judgment, and proceeded on the alternative motions for

summary adjudication.

       The trial court found, in pertinent part, (1) the 1992 contract was the only

contract between the City and Singletary; (2) Singletary was not a third party

beneficiary to other agreements upon which he tried to rely; (3) Singletary was not

obligated to reimburse the City for past infrastructure construction pursuant to a theory

of unjust enrichment; and (4) Singletary’s TAC was barred due to Singletary failing to

petition the trial court for leave to file an untimely government claim (Gov. Code,

§ 946.6). Given the findings, the trial court entered judgment in favor of the City on

Singletary’s TAC, and in favor of Singletary on the City’s FACC.

       Both Singletary and the City have appealed. In his appeal, Singletary contends

he was not required to petition the court for leave to file an untimely claim because the

case is based on contract law, not tort law. Additionally, Singletary asserts the trial

court erred by finding the City is not legally responsible to finish constructing the

infrastructure because (1) the City is obligated by the 1992 contract and the law

concerning selection of alternative acts (Civ. Code, § 1450); (2) the City gave


                                             3
Singletary untimely notice of its decision to proceed with third party contractors; and

(3) Singletary is a third party beneficiary of the different agreements the City entered.

Singletary asserts this court should remand the matter back to the trial court for the trial

court to determine (1) whether the City had constitutional and/or statutory authority to

contract with Singletary to provide water and sewer connections; and (2) whether the

City is estopped from denying an obligation to complete the infrastructure construction

under the doctrine of promissory estoppel.

       The City has filed a cross-appeal. The City raises four issues. First, the City

contends the 1992 agreement is enforceable against Singletary. Second, the City asserts

the issue of whether the City breached the 1992 contract in a manner that precludes

recovery against Singletary is a factual issue that (1) cannot be decided as a matter of

law, or (2) should have been decided in the City’s favor. Third, the City contends there

is a material factual dispute as to whether Singletary engaged in an unlawful business

practice, was unjustly enriched, or otherwise obligated by equity to reimburse the City

for its expenses in constructing the infrastructure. Fourth, the City asserts the trial court

exceeded its authority by summarily adjudicating factual or legal issues that did not

completely dispose of a cause of action. We affirm the trial court’s ruling on the City’s

motion against Singletary’s TAC. We reverse the trial court’s ruling on Singletary’s

motion against the City’s FACC.




                                              4
                     FACTUAL AND PROCEDURAL HISTORY

       A.     SINGLETARY’S THIRD AMENDED COMPLAINT

       The following allegations are taken from Singletary’s TAC. In 1991, the City

annexed approximately 680 acres of previously unincorporated land. The Center Street

expansion area was within the annexed land. As part of the annexation application, the

City presented a utility plan to the San Bernardino County Local Agency Formation

Commission (LAFCO). The utility plan reflected the City would immediately, upon

annexation, provide water, sewer, and electrical services, at the City’s expense.

       In June 1999, the City, the City of Riverside (Riverside), and Singletary

negotiated regarding infrastructure improvements along Center Street. Riverside was

involved because it owned land, known as Pellisier Ranch, adjacent to the planned

extension of Center Street. As a result of the negotiations, in October 1999, Singletary

and the City entered into a development agreement (the development agreement); the

development agreement was approved by the City’s City Council (the City Council). A

city council agenda report from October 1999, reflected the City would extend the

utility services along the planned extension of Center Street in order to “satisfy the 1991

agreements that obligated the City to provide municipal services to the annexed areas.”

The development agreement provided the City would (1) pave the northern half of

Center Street, (2) install sewer and water lines, (3) install fire hydrants, and (4) install a

gas line; and Singletary would procure easements for the City from the property owners

along the planned Center Street expansion, in order to facilitate the infrastructure

improvements.


                                               5
       As part of the development agreement, Singletary hired design engineers and

contractors “to assist him in providing services to [the] City to facilitate the project.”

The City awarded a no-bid contract to Krieger & Stewart, Inc. to design and engineer

the project; however, the City then awarded a contract to Singletary’s engineer, in order

to utilize that engineering company’s plan for the project. Singletary acquired cost-free

easements for the City from property owners along the planned Center Street expansion,

in order to facilitate the project.

       In June 2000, the City and Riverside agreed to share the costs of some of the

infrastructure improvements. Also in 2000, the City’s assistant city manager sent letters

to property owners along the planned Center Street extension. In the letters, the City

committed to providing water, sewer, and gas lines, and to pave the northern portion of

Center Street. Included with the letters were easement documents and/or dedication

statements for the property owners to complete.

       In October 2006, the City awarded a contract to a pipeline contractor for the

installation of water and wastewater lines as part of the Center Street expansion. In

November 2006, the City awarded another contract for materials and supplies related to

the water and sewer improvements. In 2007, the City performed a portion of the

infrastructure improvements, including construction of a 16-inch water line, a 12-inch

gravity sewer, and a 12-inch force main. However, property owners along the planned

Center Street expansion remain unable to connect to the City’s water and sewer

systems, the northern portion of Center Street was not fully paved, and the gas line was

not installed.


                                              6
       In June 2008, Riverside sued the City over alleged violations of the California

Environmental Quality Act. The two cities engaged in settlement discussions. In June

2009, the two cities entered into a memorandum of understanding (MOU), in which the

City agreed to construct a sewage pump station or other facilities to convey wastewater

to the City’s wastewater treatment facility. The pump station would serve Riverside’s

Pellisier Ranch property, along with the properties along the Center Street expansion as

part of the Pellisier Ranch Specific Plan. Riverside agreed to allow property owners

along the Center Street expansion to temporarily discharge their wastewater into

Riverside’s sewer system. The City agreed to construct a metering station upstream of

the connection to Riverside’s sewer system, and to pay Riverside a monthly service

charge. The two cities agreed to share rights of ingress and egress granted in the

easements by the property owners along the Center Street expansion.

       In September 2009, the City sent Singletary a letter demanding that Singletary

pay $408,398.70 for the infrastructure improvements already performed along the

Center Street expansion. The City further demanded Singletary commence constructing

infrastructure improvements. Singletary rejected the City’s demands because the City

had agreed to construct the improvements at its own expense through bonds. The City

refused to pay for the improvements, which caused Singletary and other property

owners along the Center Street expansion to pay for the improvements. The

infrastructure improvements remain unfinished; the property owners were not connected

to the sewer lines, the street was unpaved, and the gas line was not installed. Singletary

spent $21,542.40 for pavement, curb, and gutter work. The estimated cost for paving


                                            7
along Center Street was $137,195. The estimated cost of installing a gas line was

$37,195.

       On October 2, 2007, Singletary filed a government tort claim against the City on

behalf of himself and other property owners along the Center Street expansion. The

City found the claim to be untimely under a six-month statute of limitations, and

returned the claim to Singletary. Singletary asserted the six-month limitation did not

apply to contract claims. Singletary applied to have the City reconsider its conclusion

that the claim was untimely. The City did not timely respond to Singletary’s application

for reconsideration.

       In Singletary’s TAC, his first cause of action was based upon promissory

estoppel. Singletary asserted the City was estopped from denying it agreed to construct

the infrastructure improvements. Alternatively, Singletary alleged the City made

promises without intending to perform its obligations so as to procure free easements.

Singletary’s second cause of action concerned breach of contract. Singletary asserted

he, and the other property owners along the planned Center Street expansion, were third

party beneficiaries of the MOU (between the City and Riverside) and the contracts the

City entered into to facilitate construction of the infrastructure. Singletary alleged the

City breached its contractual obligations by failing to construct the infrastructure at its

own expense.

       Singletary’s third cause of action was for declaratory relief. Singletary requested

the trial court declare (1) a valid and enforceable contract existed between the City and

the property owners along the planned Center Street expansion wherein the City was


                                              8
responsible for constructing the infrastructure; (2) the construction must be completed

within a reasonable time period; and (3) Singletary was entitled to damages for the

City’s construction delays. Singletary’s fourth cause of action was based upon unjust

enrichment. Singletary alleged the City obtained easements at no cost, as well as

Singletary’s services, which unjustly enriched the City.

       Singletary sought damages; attorney’s fees; costs; the declaration, detailed ante;

an injunction requiring the City to complete the construction in a reasonable time

period; the value of Singletary’s services in procuring the easements; and any other

relief deemed proper.

       B.     THE CITY’S FIRST AMENDED CROSS-COMPLAINT

       The following allegations are taken from the City’s FACC. In 1992, Singletary

sought permission from the City to subdivide his property. In order to subdivide the

property, Singletary was required to construct infrastructure, such as water and sewer

systems, as well as paving the street. In October 1992, Singletary and the City entered

into a written agreement whereby Singletary could immediately subdivide his property,

but construction of the infrastructure would be deferred until a future time of the City’s

choosing. The agreement was recorded in November 1992 in connection with one of

Singletary’s parcel maps.

       In November 1997, James Grimsby (Grimsby) became a councilmember on the

City Council. Singletary gave Grimsby cash in exchange for Grimsby influencing the

City to pay for the infrastructure along the Center Street expansion. In 1999, the City

Council voted to direct City staff to negotiate a development plan with Singletary,


                                             9
known as the Center Street Extension project, and to enter into contracts with engineers,

contractors, and material suppliers to construct the infrastructure. In 2003, Singletary

pled guilty to one count of bribing Grimsby. (18 U.S.C. § 666.)

       In 2009, the City discovered the 1992 subdivision agreement involving

Singletary. City staff who had been involved with the 1992 agreement were no longer

employed with the City, and the agreement “had long since been buried in the City’s

archives,” such that it could not have been discovered in the course of a “regular search

of the City’s records.” In August 2009, at a deposition, Singletary admitted signing the

1992 agreement.

       The City had been unaware of the 1992 agreement when it constructed portions

of the infrastructure. In September 2009, Colton demanded Singletary commence

building the remaining unconstructed portions of the infrastructure and sought

reimbursement for the already completed portions of the infrastructure. Singletary had

actual and constructive notice of Colton installing the infrastructure due to Singletary’s

frequent communications with the City, Riverside, contractors, and material suppliers,

and his visits to the construction site. The City did not give Singletary formal notice

under the agreement that it was commencing construction, but formal notice “would

have been superfluous and redundant” given the actual and constructive notice.

       The City’s first cause of action concerned breach of contract. The City alleged

Singletary breached the 1992 agreement by rejecting the City’s 2009 demand for

Singletary to commence constructing the infrastructure. The City asserted damages

would be an insufficient remedy, and therefore requested Singletary be required to


                                            10
specifically perform the terms of the agreement. The City’s second cause of action was

based upon breach of the implied covenant of good faith and fair dealing. The City

alleged Singletary breached the implied covenant by bribing Grimsby in an attempt to

avoid his obligations under the 1992 agreement.

       The City’s third cause of action concerned unjust enrichment. The City asserted

Singletary was allowed to subdivide his property and sell a portion of the subdivided

property, without bearing the cost of the infrastructure improvements, which unjustly

enriched Singletary. The City asserted Singletary should have been required to pay for

the infrastructure improvements. The City’s fourth cause of action was based upon

unfair business practices. (Bus. & Prof. Code, § 17200.) The City asserted Singletary

engaged in an unfair, unlawful, and fraudulent business practice by bribing Grimsby.

       The City’s fifth cause of action sought declaratory relief. The City requested the

trial court declare (1) the 1992 contract was valid and enforceable; (2) the 1992 contract

was not superseded by any of the City’s subsequent acts or omissions; (3) the 1992

contract still required Singletary to construct the infrastructure; (4) Singletary was

obligated to reimburse the City for the portion of the infrastructure already constructed

by the City; (5) Singletary’s obligations under the 1992 contract had not been altered by

his sale of the property; (6) the City did not made a selection or election under Civil

Code section 1450; (7) Singletary was directly liable for his breach of the 1992 contract;

(8) Singletary had actual and constructive notice of the City constructing portions of the

infrastructure; (9) the City’s failure to formally notify Singletary that it was

commencing construction was not a breach of the 1992 contract; (10) the failure to


                                             11
formally notify Singletary would apply only to the infrastructure already constructed,

and not to the infrastructure that still needed to be built; (11) the 1992 contract did not

violate the City’s Municipal Code or the Subdivision Map Act; (12) Singletary’s bribery

conviction barred Singletary from any monetary or injunctive relief; (13) Singletary

lacked standing to sue as a third party beneficiary of any contract between the City and

another party; and (14) Singletary’s claims were time barred by the Tort Claims Act

(Gov. Code, §§ 900 et seq.).

       The City’s sixth cause of action was a request for injunctive relief. The City

asserted it was suffering irreparable harm due to Singletary’s unlawful conduct. The

City requested an injunction requiring Singletary to finish constructing the infrastructure

and reimburse the City for the infrastructure already constructed. The City’s seventh

cause of action sought indemnification. The City alleged Singletary was obligated to

indemnify the City for the costs it incurred in installing the infrastructure.

       The City sought: (1) specific performance; (2) actual and consequential

damages; (3) injunctive relief; (4) restitution; (5) indemnification; (6) declaratory relief;

(7) costs; (8) attorney’s fees; and (9) any other proper relief.

       C.     SINGLETARY’S MOTION FOR SUMMARY JUDGMENT

       In April 2011, Singletary filed a motion for summary judgment, or, in the

alternative, a motion for summary adjudication. In the motion for summary

adjudication, Singletary raised six issues.




                                              12
                1.   THE CITY’S SELECTION

       In the first issue, Singletary asserted the City was obligated to complete the

infrastructure at its own expense because it chose to begin the work. Civil Code section

1450 provides, “The party having the right of selection between alternative acts must

select one of them in its entirety, and cannot select part of one and part of another

without the consent of the other party.” Singletary asserted the 1992 contract gave the

City the choices of (1) Singletary constructing the infrastructure before issuing building

permits; (2) that Singletary agree to participate in a public utility improvement district

for the installation of water and sewer improvements; (3) Singletary perform the

construction work at his expense upon 30 days written notice; or (4) the City perform

the construction work at its expense, with a right of reimbursement from Singletary.

       Singletary asserted the City selected to perform the construction work at its

expense, and therefore, cannot seek reimbursement from Singletary until the work is

completed. Singletary contended the City could not seek money for future construction

costs. As to this issue, the trial court denied Singletary’s motion for summary

adjudication.

                2.   COVENANT

       In the second issue, Singletary asserted he did not owe a duty under the 1992

contract because he transferred ownership of the property and the duty was a covenant

running with the land. Civil Code section 1462 provides, “Every covenant contained in

a grant of an estate in real property, which is made for the direct benefit of the property,

or some part of it then in existence, runs with the land.” Singletary asserted the 1992


                                             13
contract expressly reflected, “it shall constitute a ‘covenant running with the land’

binding upon [Singletary’s] successors.” Singletary asserted he sold/transferred all

interests in the subdivided property. As to this issue, the trial court granted Singletary’s

motion for summary adjudication.

                 3.   CONDITION PRECEDENT

       In the third issue, Singletary asserted the City failed to perform an express

condition precedent of the 1992 contract. In particular, the City failed to provide

Singletary 30 days written notice prior to incurring construction costs at Singletary’s

expense. Singletary asserted the 1992 contract provided the City would give Singletary

30 days written notice and an opportunity to perform the work at his own cost prior to

the City commencing construction. As to this issue, the trial court granted Singletary’s

motion for summary adjudication because the City could not establish it provided notice

to Singletary.

                 4.   UNJUST ENRICHMENT

       In the fourth issue, Singletary argued the City’s unjust enrichment theory failed

because the City did not provide Singletary with formal notice and thereby failed to

perform an express condition precedent in the 1992 contract. Singletary asserted he

“already sold his land before the work was performed in 2006-2007,” and therefore, he

was not unjustly enriched by the City’s infrastructure improvements. As to this issue,

the trial court granted Singletary’s motion for summary adjudication.




                                             14
              5.     UNENFORCEABLE CONTRACT

       In the fifth issue, Singletary asserted the 1992 contract was unenforceable

because (1) it violated (a) the City’s Municipal Code and (b) the Subdivision Map Act;

and (2) it omitted statutorily mandated terms. As to this issue, the trial court denied

Singletary’s motion for summary adjudication.

              6.     BRIBERY CONVICTION

       In the sixth issue, Singletary argued his bribery conviction did not void the City’s

annexation obligations or its contract with Riverside to construct the infrastructure. The

trial court granted the summary adjudication motion on this issue, but noted it was

irrelevant because Singletary could not force the City to construct the infrastructure.

              7.     TRIAL COURT’S EXPLANATION

       The trial court summarized Singletary’s position on the 1992 contract as

asserting the City was bound by the 1992 contract to construct the infrastructure, but

Singletary was not bound by the contract because (1) he no longer owned the relevant

property; (2) the City did not provide Singletary 30 days written notice; (3) the 1992

agreement was unenforceable because it did not comply with the Municipal Code and

other laws; and (4) the agreement runs with the land, and was not personal to Singletary.

The trial court found Singletary’s argument was “not well taken,” in that Singletary

asserted the City was bound to construct the infrastructure, but Singletary was not

bound to pay for the infrastructure.




                                            15
       D.     THE CITY’S MOTION FOR SUMMARY ADJUDICATION

       In May 2011, the City filed a motion for summary judgment, or, in the

alternative, a motion for summary adjudication.

              1.       FINANCIAL INTEREST

       The City’s first argument was that Singletary’s entire suit was barred by

Government Code section 1090. The section provides, “[C]ity 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.” (Gov. Code, § 1090,

subd. (a).) The law further provides, “An individual shall not aid or abet a . . . city

officer or employee in violating subdivision (a).” (Gov. Code, § 1090, subd. (b).)

Government Code section 1092 provides, “Every contract made in violation of any of

the provisions of Section 1090 may be avoided at the instance of any party except the

officer interested therein.”

       The City asserted that Singletary pled guilty to bribing Grimsby for the purpose

of having Grimsby support the Center Street expansion project. Therefore, Grimsby

was financially interested in any contracts related to the Center Street expansion, and

thus, those contracts were void. As to this issue, the trial court denied the summary

adjudication motion.

              2.       LACK OF AN ENFORCEABLE CONTRACT

       Second, the City asserted no enforceable contract, other than the 1992 contract,

was formed between the City and Singletary. The City asserted that a city council

resolution to create a contract was not a contract. The City noted it had a detailed


                                             16
municipal ordinance concerning the creation of development agreements. The City

argued Singletary could not demonstrate he had a development agreement with the City.

As to this issue, the trial court granted the motion for summary adjudication.

              3.     THIRD PARTY BENEFICIARY

       Third, the City contended Singletary’s third party beneficiary claims failed

because (1) the contracts did not identify Singletary as a third party beneficiary; (2) the

documents Singletary was treating as contracts, such as a city council agenda report,

were not contracts; and (3) the contract between the City and a construction company

expressly reflected there were no intended third party beneficiaries to the contract. As

to this issue, the trial court granted the motion for summary adjudication.

              4.     GOVERNMENT CLAIM

       Fourth, the City asserted Singletary’s third party beneficiary claims were barred

because he did not include them in his government tort claim form (Gov. Code,

§ 945.4). Fifth, the City argued Singletary’s suit was jurisdictionally barred due to his

failure to petition the trial court to file an untimely claim (Gov. Code, § 946.6). As to

these issues, the trial court granted the motion for summary adjudication.

       E.     EFFECT OF THE RULING

       When brought together, the trial court found (1) the only contract between the

City and Singletary was the 1992 contract; (2) Singletary owed no duty to perform

covenants running with the land under the 1992 agreement because he sold the Pellisier

Street property; (3) the City failed to perform an express condition precedent by not

providing Singletary 30-days written notice prior to incurring construction costs;


                                             17
(4) Singletary was not a third party beneficiary under any other contract or document;

and (5) Singletary’s TAC was jurisdictionally barred because he failed to petition the

court for leave to file an untimely claim (Gov. Code, § 946.6).

       The effect of the findings would be that the 1992 contract was a valid contract;

however, Singletary cannot successfully sue to enforce the 1992 contract because he

missed jurisdictional deadlines, and the City cannot successfully sue to enforce the 1992

contract because Singletary sold his property. The trial court entered judgment in favor

of the City on Singletary’s TAC, and in favor of Singletary on the City’s FACC.

                                       DISCUSSION

                                               I

               STANDARD OF REVIEW AND BURDEN OF PROOF

       “[A] trial court may grant a motion for summary adjudication only when such

motion ‘completely disposes of a cause of action, an affirmative defense, a claim for

damages, or an issue of duty.’ We conduct a de novo review of this matter to determine

whether there is a triable issue of material fact associated with the causes of action . . . .”

(South Beverly Wilshire Jewelry & Loan v. Superior Court (2004) 121 Cal.App.4th 74,

79.)

       There are two burdens applicable to a motion for summary adjudication. The

first is the burden of persuasion. A party moving for summary adjudication, “bears the

burden of persuasion that there is no triable issue of material fact and that he is entitled

to [summary adjudication] as a matter of law. That is because of the general principle

that a party who seeks a court’s action in his favor bears the burden of persuasion


                                              18
thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence

would allow a reasonable trier of fact to find the underlying fact in favor of the party

opposing the motion in accordance with the applicable standard of proof.” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fns. omitted (Aguilar).)

       “Thus, a plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause

of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto.

[Citation.] A defendant bears the burden of persuasion that ‘one or more element of’

the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete

defense’ thereto.” (Aguilar, supra, 25 Cal.4th at p. 850.)

       The second burden concerns the production of evidence. “[T]he party moving

for summary [adjudication] bears an initial burden of production to make a prima facie

showing of the nonexistence of any triable issue of material fact; if he carries his burden

of production, he causes a shift, and the opposing party is then subjected to a burden of

production of his own to make a prima facie showing of the existence of a triable issue

of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)

       “A burden of production entails only the presentation of ‘evidence.’ [Citation.]

A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of

a ‘requisite degree of belief.’” (Aguilar, supra, 25 Cal.4th at p. 850.) “A prima facie

showing is one that is sufficient to support the position of the party in question.

[Citation.] No more is called for.” (Id. at p. 851.)




                                             19
                                             II

                               SINGLETARY’S APPEAL

       A.     1999 THROUGH 2001 DOCUMENTS

              1.     EXISTENCE OF A CONTRACT—CITY’S BURDEN

       The City brought a motion for summary adjudication on Singletary’s TAC. The

City argued the only enforceable contract between the parties was the 1992 agreement.

The City did not provide a copy of the 1992 agreement. Rather than argue the validity

of the 1992 contract, the City argued the invalidity of the documents upon which

Singletary was relying. Accordingly, we are examining whether the documents upon

which Singletary relies created a contract or promise.

       The City argued that Singletary only presented a mixture of letters, agenda

reports, and city council minutes, which did not amount to a contract. The City relied

on case law reflecting a City’s rules regarding contract formation must be followed in

order for an action/document to be a municipal contract. (First Street Plaza Partners v.

City of Los Angeles (1998) 65 Cal.App.4th 650, 667 [city’s specific contract formation

rules must be followed for enforceable municipal contracts].)

       In support of its argument, the City provided the trial court with (1) the October

19, 1999, City Council agenda report, which reflected the City Council would consider

approving a development plan with Singletary wherein the City would construct the

infrastructure; (2) a letter from the City to a design company, reflecting that, at the

October 19 meeting, the City Council awarded a contract to the design company for the

design of the water and sewer infrastructure; (3) an October 2000 letter from the City to


                                             20
Center Street property owners reflecting the City was “contemplat[ing]” constructing a

water and sewer main, fire hydrants, and paved roads for the Center Street expansion,

and that the City “agrees to provide the aforementioned improvements . . . in exchange

for the required right-of-way dedications from property owners in the area”; and (4) a

May 2001 City Council agenda report reflecting the council was to consider accepting

the easements offered by property owners along the Center Street expansion. The City

included a variety of other documents, such as the easements.

       The City asserted former Colton Municipal Code section 18.58.080 governed the

creation of development agreements, and the requirements of that section were not met

by the foregoing documents. Pursuant to former Colton Municipal Code section

18.58.080(12)(b), a development agreement must state (a) the specific duration of the

agreement, (b) the permitted uses of the property, (c) the density and intensity of use,

(d) the maximum height and size of proposed buildings, and (e) the specific provisions

for reservations or dedication of land for public purposes. Additionally, the

development agreement must be recorded by the County Recorder within 10 days of the

effective date of the agreement. (Former Colton Muni. Code, § 18.58.080(16)(a).)

       The agenda reports and letters do not meet the requirements of a development

agreement. The documents do not include the necessary information, and there is

nothing reflecting any of it has been recorded. Accordingly, the City met its burden of

establishing a prima facie case that it did not make an enforceable agreement with

Singletary for the City to construct the infrastructure.




                                             21
              2.     PROMISSORY ESTOPPEL—SINGLETARY’S BURDEN

       In Singletary’s opposition to the City’s motion for summary judgment, he

asserted that a resolution by the City combined with the City’s letters to property

owners created a promise by the City to construct the infrastructure. Singletary relied

on promissory estoppel as legal support for his argument. Typically, a city cannot be

bound to a contract by estoppel. (First Street Plaza Partners v. City of Los Angeles,

supra, 65 Cal.App.4th at p. 669.) The reasoning for this rule is that a municipality

cannot avoid its contract formation requirements by relying on estoppel. (Ibid.)

Despite this general rule, we will address Singletary’s promissory estoppel theory.

       “‘Promissory estoppel is “a doctrine which employs equitable principles to

satisfy the requirement that consideration must be given in exchange for the promise

sought to be enforced.”’ [Citations.] The elements of promissory estoppel are (1) a

clear promise, (2) reliance, (3) substantial detriment, and (4) damages ‘measured by the

extent of the obligation assumed and not performed.’” (Toscano v. Greene Music

(2004) 124 Cal.App.4th 685, 692.)

       Singletary asserts the City made a promise by (1) passing a resolution, and

(2) sending the 2000 letter to property owners regarding the grant of easements to the

City. In the 2000 letter, the City explained that it had been in negotiations with

Singletary and Riverside regarding improvements along Center Street. The letter

reflects, “As part of the negotiations, the City of Colton agrees to provide the

aforementioned improvements including one domestic sewer connection, one domestic

water connection up to two inches, and fire hydrants per city code, in exchange for the


                                            22
required right-of-way dedications from property owners in the area. The Center Street

project and its associated budget were approved by the City Council on May 2, 2000.

The actual construction of the Center Street Project is contingent upon the delivery of

the signed easements from all affected property owners and their acceptance by the City

Council. This letter represents a testimonial to the City of Colton’s commitment to

providing essential public services to property owners in the Center Street area. If you

concur with the exchange stipulated above please indicate by signing the attached grant

of easement document.”

       The foregoing is in the nature of an offer; it is not a promise. An “offer must be

certain and definite,” hence the detail in the City’s offer. (Apablasa v. Merritt & Co.

(1959) 176 Cal.App.2d 719, 723.) The party to whom an offer is made must consent to

the exact terms in order for a contract to exist. (Id. at p. 726.) In the 2000 letter, the

City wrote, “If you concur with the exchange stipulated above please indicate by

signing the attached grant of easement document.” In that sentence, the City is asking

for consent to an offer.2

       In promissory estoppel, a promise is made when a party states it will perform a

service or provide a good without consideration. (US Ecology, Inc. v. State (2005) 129

Cal.App.4th 887, 903.) The person expecting to receive the good or service need not

provide anything in exchange, so that person’s reliance becomes a substitute for the


       2 While we refer to this as an offer, we do so for ease of understanding.
Ultimately, as explained post, there is no evidence the assistant city manager who
signed the 2000 letter had authority to enter into contracts on the City’s behalf.


                                             23
consideration that would typically be present in a contract action. (Id. at pp. 903-904.)

In the instant case, the City offered to construct infrastructure if the property owners

agreed to provide easements. The City wanted consideration, i.e., the easements,

therefore, the City did not make a promise.

       In regard to the City passing a resolution, Singletary does not provide the

language of the resolution. Rather, Singletary cites to three declarations, which discuss

the 2000 letter. Since we have not been directed to the language of the resolution, we

cannot determine if a clear promise has been made. (Cal. Rules of Court, rule

8.204(a)(1)(C) [support any reference with a record citation].) As a result, Singletary

has not met his burden on this issue. We conclude the promissory estoppel theory fails.

              3.     BINDING AGREEMENT—SINGLETARY’S BURDEN

       Alternatively, Singletary asserted the agenda reports, city council meeting

minutes, grants of easements, subcontracts, and correspondence from the City to

property owners is evidence of a binding agreement. At oral argument in this court,

Singletary cited Colton Municipal Code section 3.08.160 to support his point. That

section provides, “Pursuant to the California Government Code, the Mayor must

execute all contracts on behalf of the City, unless another City Officer or Employee is

authorized to do so. The City Manager and his or her Designees, as explicitly set forth

in this chapter and the administrative policies implementing this chapter, are hereby

authorized to execute contracts on behalf of the City.”




                                              24
       The 2000 letter from the City to homeowners, a portion of which is quoted ante,

was signed by the assistant city manager. Thus, the mayor or the city manager was not

a signatory to the letter. Singletary does not direct the court to where “in this

[municipal code] chapter and the administrative policies implementing this [municipal

code] chapter” (1) the assistant city manager is named as a designee, or (2) the

procedure for how a person becomes a designee. (Colton Muni. Code, § 3.08.160.) We

note the city manager, in a declaration, declared he approved the assistant city

manager’s act of sending the 2000 letter to property owners; however, Singletary has

not established that this casual authorization is sufficient to create a “designee”

authorized to execute contracts. There is a significant difference between authorization

to send a letter and authorization/designation to sign a contract.

       As a result, we conclude the assistant city manager is not a designee authorized

to execute contracts on behalf of the City. Because the assistant city manager is not

authorized to execute contracts, we conclude the agenda reports, city council meeting

minutes, grants of easements, subcontracts, and correspondence from the City to

property owners did not create a binding agreement.

              4.     THIRD PARTY BENEFICIARY—SINGLETARY’S BURDEN

       Next, Singletary asserted he was an intended third party beneficiary of the

contracts the City entered into with others to design and construct the infrastructure.

The allegation of being an intended third party beneficiary was not raised in

Singletary’s government tort claim form. The only item attached to Singletary’s

government tort claim letter was the 2000 letter sent to homeowners—he did not attach


                                             25
contracts involving the City and other parties concerning the design and construction of

the infrastructure. Arguably, because the third party beneficiary theory involves an

effort to premise liability on documents/contracts generated at different times than those

described in Singletary’s initial claim letter, the theory is barred. (See Stockett v.

Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441,

447.)

        However, in October 2009, after the City demanded Singletary construct the

infrastructure pursuant to the 1992 agreement, Singletary sent the City a letter. In the

2009 letter, Singletary asserted the property owners along Center Street “are part of a

class of intended third-party beneficiaries to the MOU and those prior agreements

entered into by the City of Colton to facilitate those improvements.” The TAC includes

an allegation that Singletary and property owners along Center Street are “intended

third-party beneficiaries of the MOU, dated June 2009, and those preceding contracts

that were entered into by [the] City of Colton to facilitate the City’s plan, design, and

construction of the promised street and utility infrastructure improvements . . . .”

Accordingly, because there was some notice given of the third party liability theory, we

will address the substantive merits of the issue.

        A third party may only enforce a contract that is “made expressly for the benefit

of [the] third person.” (Civ. Code, § 1559; Southern California Gas Co. v. ABC Constr.

Co. (1962) 204 Cal.App.2d 747, 750.) “Expressly,” in this context, is the negative of

“incidentally”—the third party does not need to be specifically named. (Gilbert

Financial Corp v. Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 69-70.)


                                             26
       Singletary contends the City elected to construct the infrastructure under the

1992 agreement, and then, pursuant to the 1992 agreement, the City sought

reimbursement from Singletary for that construction work. Singletary contends he is a

“third party beneficiary under those contracts for which Colton sought reimbursement.”

       In Singletary’s TAC he cites 11 documents that he alleges constitute contracts to

which he is a third party beneficiary. The documents include things like agenda reports,

the City’s 2000 letter sent to property owners, and the easement grants. As explained

ante, those documents do not constitute a contract. However, Singletary also cites to

other documents, such as (1) a contract between the City and W.J. McKeever, Inc.; (2) a

June 1, 2000, cooperative agreement between the City and Riverside; (3) a November

21, 2006, agreement between the City and Inland Water Works; (4) an October 17,

2006, agreement between the City and Merlin Johnson Construction, Inc.; and (5) a

June 2009 Memorandum of Understanding between the City and Riverside.

       The documents are not attached to the TAC. The documents are not cited in the

third party beneficiary section of Singletary’s Opposition to the City’s Motion for

Summary Judgment. In Singletary’s Appellant’s Opening Brief, he cites the June 1,

2000, cooperative agreement.

       In reviewing the record, we found letters between the City and W.J. McKeever,

Inc. The letters are from W.J. McKeever, Inc. and set forth the company’s proposals for

work. The letters are proposals, not contracts.




                                            27
       The June 2000 cooperative agreement entered into by the City and Riverside

provides, “Nothing in this Agreement is intended to create duties or obligations to, or

rights in, third parties not party to this agreement.” Thus, the agreement expressly

disavows any third party beneficiaries. We have not located the agreement between the

City and Inland Water Works.

       The agreement entered into by the City and Merlin Johnson Construction, Inc.

for the installing a gravity sewer and sewer force main for Center Street reads, “There

are no intended third party beneficiaries of any right or obligation assumed by the

Parties.” Accordingly, this agreement also expressly disavows third party beneficiaries.

       The June 2009 Memorandum of Understanding between the City and Riverside

does not include a provision about third party beneficiaries, but incorporates the

“Agreement for Temporary Wastewater Treatment for a Portion of the City of Colton.”

The Agreement for Temporary Wastewater Treatment provides, “Nothing in this

Agreement, whether express or implied, is intended to confer any rights or remedies

under or by reason of this Agreement on any persons other than the Parties and their

respective successor and assigns, . . . nor shall any provision give any third person any

right of subrogation or action over or against any Party to this Agreement.” Given that

the Agreement for Temporary Wastewater Treatment was expressly incorporated into

the Memorandum of Understanding, the Memorandum includes the disavowal of third

party beneficiaries. (See generally Wolschlager v. Fidelity National Title Ins. Co.

(2003) 111 Cal.App.4th 784, 790 [“‘“‘parties may incorporate by reference into their

contract the terms of some other document’”’”].)


                                            28
       In sum, our examination of the record reflects that the documents upon which

Singletary is relying either (1) are not contracts, or (2) are agreements that expressly

disavow third party beneficiaries. Given the express language in the agreements, it

cannot be concluded that the agreements were made for Singletary’s benefit, such that

he would be able to enforce the agreements as an intended third party beneficiary.

       B.     CAUSES OF ACTION

       Singletary’s TAC included the following causes of action: (1) promissory

estoppel; (2) breach of contract; (3) declaratory relief; and (4) unjust enrichment.

              1.      PROMISSORY ESTOPPEL

       We have explained, ante, that the promissory estoppel theory fails.

              2       BREACH OF CONTRACT

       In the breach of contract cause of action, Singletary is relying on a 1999 City

Council Agenda Report. He also raises a third party beneficiary theory. The breach of

contract cause of action fails because, as explained ante, the 1999 through 2001

documents do not constitute a contract. Also, as explained ante, the third party

beneficiary theory fails because (1) it was not raised in Singletary’s government tort

claim letter; and (2) the documents upon which Singletary relies either (a) are not

contracts, or (b) are agreements that expressly disavow third party beneficiaries.

              3.      DECLARATORY RELIEF

       In regard to declaratory relief, Singletary sought a declaration that (1) a valid

contract exists wherein the City is liable to construct the infrastructure; (2) the City is

required to complete the construction within a reasonable timeframe; and (3) Singletary


                                             29
is entitled to damages caused by the City’s delays in constructing the infrastructure. As

explained ante, there is no evidence of a contract wherein the City is responsible for

constructing the infrastructure. Accordingly, Singletary’s declaratory relief cause of

action fails because no such declaration could be made.

              4.     UNJUST ENRICHMENT

       As to the unjust enrichment cause of action, Singletary sought compensation for

his act of obtaining easements for the City from property owners along the Center Street

expansion. Singletary’s government tort claim letter does not mention “unjust

enrichment,” but does include his act of procuring easements within the context of a

contract theory, i.e., Singletary procured the easements as part of the contract created by

the City’s 2000 letter to property owners. In the letter, Singletary requested

reimbursement for all costs related to the Center Street project.

       In the City’s motion for summary judgment, it did not present an argument

specifically directed at Singletary’s unjust enrichment cause of action. Rather, the City

asserted the entire TAC was barred by Singletary’s failure to petition the trial court for

leave to file an untimely claim. (Gov. Code, § 946.6.) Instead of focusing on the

timeline associated with filing a government claim, we choose to focus on the statute of

limitations for a claim of unjust enrichment. (In re Demillo (1975) 14 Cal.3d 598, 601

[statute of limitations may be raised at any time].)

       Unjust enrichment has a three-year statute of limitations. (Code Civ. Proc.,

§ 338, subd. (d); F.D.I.C. v. Dintino (2008) 167 Cal.App.4th 333, 347-348.) The

easements from property owners along the Center Street Expansion were granted in


                                            30
March, April, and May 2001. An Agenda Report for a May 15, 2001, meeting

recommends the City Council accept the easements. In Singletary’s declaration, he

asserts the easements were accepted during 2001 and 2002. Singletary filed his lawsuit

in January 2008. Singletary’s lawsuit was filed over five years after he worked on

procuring the easements for the City. Singletary has missed the three year statute of

limitations for his unjust enrichment cause of action. Accordingly, the cause of action

fails.

         C.     ARGUMENTS ON APPEAL

                1.     FILING A LATE CLAIM

         Singletary contends he was not required to petition the trial court for leave to file

a late government tort claim because his causes of action were based on contract. We

have explained ante, that Singletary’s causes of action fail for different reasons.

Accordingly, we do not address this issue because it is moot. (See MHC Operating

Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [an issue is

moot when no effectual relief can be provided].)

                2.     1992 CONTRACT

         Singletary contends, under the 1992 contract, that the City must follow through

on its choice to perform the work itself. (Civ. Code, § 1450 [selection of alternative

acts].) Singletary’s TAC does not include a cause of action based upon the 1992

contract. The 1992 contract is not mentioned in the TAC. Accordingly, a discussion

about the City’s obligations under the 1992 contract is not relevant to resolving

Singletary’s appeal.


                                              31
              3.     REQUESTS

       Singletary asserts this court should remand the matter back to the trial court for

the trial court to determine (1) whether the City had constitutional and/or statutory

authority to contract with Singletary to provide water and sewer connections; and

(2) whether the City is estopped from denying an obligation to complete the

infrastructure construction under the doctrine of promissory estoppel.

       We decline both of these requests. As explained ante, Singletary’s causes of

action have failed. Therefore, there is no purpose to the trial court considering the

foregoing two issues.

       D      CONCLUSION

       In sum, all four causes of action fail. Therefore, we conclude the trial court

properly granted what was effectively summary judgment, as opposed to summary

adjudication, because the City met its burden of establishing there is not a triable issue

of material fact in Singletary’s case against the City.

                                            III

                             THE CITY’S CROSS-APPEAL

       A.     BACKGROUND

       The City sought to enforce the 1992 agreement, wherein Singletary agreed to

construct the infrastructure. The City cross-complained against Singletary for

(1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing;

(3) unjust enrichment; (4) unfair business practices; (5) declaratory relief; (6) injunctive

relief; and (7) indemnity.


                                             32
       Singletary moved for summary judgment or summary adjudication against the

City’s cross-complaint. In the motion, Singletary raised six arguments. First,

Singletary asserted he was not liable for constructing the infrastructure because the

obligation was a covenant running with the land, and Singletary no longer owned the

relevant property. Second, Singletary asserted Colton had a duty to complete

constructing the infrastructure after selecting the option of constructing the

improvements itself. (Civ. Code, § 1450.)

       Third, Singletary contended the City failed to perform an express condition

precedent of the 1992 agreement—providing 30 days written notice to Singletary prior

to incurring construction costs at Singletary’s expense. Fourth, Singletary asserted he

had no duty to reimburse the City under a theory of unjust enrichment. Fifth, Singletary

contended the 1992 agreement was unenforceable because it violates the Subdivision

Map Act and the Colton Municipal Code. Sixth, Singletary contended his bribery

conviction did not void the City’s preexisting obligations with respect to constructing

the infrastructure.

       B.     COVENANT RUNNING WITH THE LAND

       We examine Singletary’s assertion that he bears no liability under the 1992

agreement because the agreement constitutes a covenant running with the land.

              1.      LANGUAGE IN THE 1992 AGREEMENT

       The 1992 agreement provides, “This agreement shall constitute a recordable

covenant running with the land and shall be binding upon the heirs, executors,

administrators and successors and assigns of the parties hereto.”


                                            33
       The 1992 agreement further provides, “In the event Singletary or successor in

interest shall refuse or neglect to commence the installation of said improvements

within one week after the aforesaid 30 days notice [to commence construction], or to

finish the installation within a reasonable period of time, CITY may at its expense by

separate contract or force labor accomplish the installation and construction of said

improvements and Singletary or successor in interest shall be liable to CITY for its costs

thereof including, but not limited to overhead, labor and material. Said liability shall be

a lien on the real property described herein, as a condition of said parcel map.”

              2      STATUTORY LAW

                     a)     Law

       Civil Code section 1461 provides, “The only covenants which run with the land

are those specified in this Title, and those which are incidental thereto.” “A covenant

can run with the land under either [Civil Code] section 1462 or [Civil Code] section

1468.” (Self v. Sharafi (2013) 220 Cal.App.4th 483, 488.)

                     b)     Civil Code section 1462

       Civil Code section 1462 provides, “Every covenant contained in a grant of an

estate in real property, which is made for the direct benefit of the property, or some part

of it then in existence, runs with the land.” The 1992 agreement was created as part of

Singletary subdividing his land. The agreement is not contained in a grant of an estate

in real property. Accordingly, the agreement does not constitute a covenant running

with the land under Civil Code section 1462.




                                            34
                     c)      Civil Code section 1468

       Civil Code section 1468 provides, “Each covenant, made by an owner of land

with the owner of other land or made by a grantor of land with the grantee of land

conveyed, or made by the grantee of land conveyed with the grantor thereof, to do or

refrain from doing some act on his own land, which doing or refraining is expressed to

be for the benefit of the land of the covenantee, runs with both the land owned by or

granted to the covenantor and the land owned by or granted to the covenantee and shall

. . . benefit or be binding upon each successive owner, during his ownership . . . .”

       The City is not described as a landowner in the 1992 agreement. The agreement

does not reflect it will benefit property owned by the City. Rather, the 1992 agreement

provides that Singletary owns property in the City and Singletary consents to

constructing infrastructure that would serve his property and “other property in the

area.” Thus, we conclude the agreement was not made by two landowners. Further, the

agreement does not involve a grantor and grantee. As a result, the 1992 agreement does

not constitute a covenant running with the land under Civil Code section 1468.

              3.     CASE LAW

       In Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, the

Andersons wanted to operate a winery and keep llamas on their property. Some

neighbors objected, asserting the activities were prohibited by the covenants, conditions,

and restrictions (CC&Rs) on the Andersons’ property. The Andersons contended the

CC&Rs were unenforceable because they were not included in any deed to their

property. (Id. at p. 348.)


                                            35
       The Supreme Court adopted the following rule: “If a declaration establishing a

common plan for the ownership of property in a subdivision and containing restrictions

upon the use of the property as part of the common plan is recorded before the

execution of the contract of sale, describes the property it is to govern, and states that it

is to bind all purchasers and their successors, subsequent purchasers who have

constructive notice of the recorded declaration are deemed to intend and agree to be

bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are

not unenforceable merely because they are not additionally cited in a deed or other

document at the time of the sale.” (Citizens for Covenant Compliance v. Anderson,

supra, 12 Cal.4th at p. 349.)

       In the instant case, the document is a contract, not a declaration. The difference

between a contract and a declaration makes this case less like Citizens, and more like

Fresno Canal and Irrigation Company v. Dunbar (1889) 80 Cal. 530 (Fresno). In

Fresno, the plaintiff was a corporation engaged in diverting and supplying irrigation

water. The plaintiff entered into a contract with a landowner, Roeding. The plaintiff

sold Roeding a water right for a tract of real estate that Roeding owned. In the contract,

the plaintiff agreed to construct a box or gate to convey water to the land, and Roeding

agreed to construct a ditch from the box or gate to his land. Roeding agreed to pay $400

per year for the water being furnished to his land. The agreement reflected, “‘It is

covenanted that this agreement and the covenants therein contained, on the part of the

party of the second part, run with and bind the land.’” (Id. at pp. 532-533.)




                                             36
          Roeding sold and conveyed the relevant land to Dunbar. The plaintiff sued

Dunbar asserting Dunbar owed money under the contract because the contract

constituted a covenant running with the land, which had been recorded on the property.

(Fresno, supra, 80 Cal. at pp. 533-534.) The trial court found in favor of the plaintiff,

entering a personal judgment against Dunbar and decreeing a lien for the amount due,

ordering a sale of the property. (Id. at p. 534.)

          On appeal, Dunbar argued that the contract did not create a covenant running

with the land because it was not made in connection with a conveyance or transfer of

land. (Fresno, supra, 80 Cal. at p. 534.) The Supreme Court agreed the contract did not

create a covenant running with the land, but noted the contract was meant to bind the

land. Thus, the court questioned whether the contract was meant to create a lien upon

the land. The court concluded “it [is] perfectly clear from the language used that this

was the intention of the parties.” The court concluded the contract created a lien upon

the land. (Id. at p. 535.) The Supreme Court held Dunbar was not personally liable for

the water payment; rather, Dunbar purchased property that was subject to the lien.

(Ibid.)

          Typically, under the Subdivision Map Act, a subdivider who is responsible for

constructing infrastructure would post a bond, deposit, instrument of credit, or lien on

the property in order to secure the future construction. (Gov. Code, § 66499, subd.

(a)(1)-(3).) A lien is a proper form of security when “the local agency finds that it

would not be in the public interest to require the installation of the required




                                             37
improvement sooner than two years after the recordation of the map.” (Gov. Code,

§ 66499, subd. (a)(4).)

       As set forth ante, the 1992 agreement does include language about a lien: “Said

liability shall be a lien on the real property described herein, as a condition of said

parcel map.” The 1992 agreement also reflects the infrastructure need not be

immediately constructed: “It is deemed unnecessary at this time for said site

improvements to be so constructed and installed as part of said parcel map.” Thus, the

agreement reflects the infrastructure construction may be delayed for more than two

years, which would make a lien a proper form of security. (Gov. Code, § 66499, subd.

(a)(4).)

       Under the Subdivision Map Act, a subdivision “may be lawfully accomplished

only by obtaining local approval and recordation of a tentative and final map pursuant to

section 66426, when five or more parcels are involved, or a parcel map pursuant to

section 66428 when four or fewer parcels are involved.” (Gardner v. County of Sonoma

(2003) 29 Cal.4th 990, 997.)

       In 1992, Singletary subdivided his property into three parcels, under Parcel Map

No. 14405.3 The evidence reflects that Singletary subdivided the property into fewer

than four parcels, and the subdivision was recorded on a parcel map, which triggers the

application of the Subdivision Map Act. (Gardner v. County of Sonoma, supra, 29

       3 In 1994, Singletary further subdivided the remainder parcel, which was
recorded on Parcel Map No. 14631. It appears the parcel was divided into two lots. In
1998, Singletary again subdivided the remainder parcel into four parcels, which was
recorded on Parcel Map No. 15145.


                                             38
Cal.4th at p. 997; Van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549,

565-566.)

       Given (1) the Subdivision Map Act is applicable to Singletary’s 1992

subdivision; (2) a lien is a typical method of providing security for improvements under

the Subdivision Map Act (Gov. Code, § 66499, subd. (a)(4)); (3) the 1992 agreement

uses the word “lien”; and (4) our Supreme Court held the contract in Fresno created a

lien, rather than a covenant running with the land (Fresno, supra, 80 Cal. at p. 535), we

conclude the 1992 agreement did not create a covenant running with the land, but did

create a lien upon the property, which was recorded in San Bernardino County’s official

records. Thus, Singletary cannot avoid liability for constructing the infrastructure by

virtue of the 1992 agreement being a covenant running with the land. Singletary is

personally liable for constructing the infrastructure, although his performance is secured

by land he no longer owns. Accordingly, summary adjudication should have been

denied as to this theory.

       C.     SELECTION OF ALTERNATIVE ACTS

       Next, we address Singletary’s assertion that Colton had a duty to complete

constructing the infrastructure after selecting the option of constructing the

improvements itself. (Civ. Code, § 1450.)

              1.     CONTRACT LANGUAGE

       The 1992 agreement provides, “In the event Singletary or successor in interest

shall refuse or neglect to commence the installation of said improvements within one

week after the aforesaid 30 days notice [to commence construction], or to finish the


                                            39
installation within a reasonable period of time, CITY may at its expense by separate

contract or force labor accomplish the installation and construction of said improvement

and Singletary or successor in interest shall be liable to CITY for its costs thereof

including, but not limited to overhead, labor and material. Said liability shall be a lien

on the real property described herein, as a condition of said parcel map.”

       2.     LAW

       Civil Code section 1450 reads, “The party having the right of selection between

alternative acts must select one of them in its entirety, and cannot select part of one and

part of another without the consent of the other party.”

              3.     DISCUSSION

       Singletary asserts that because the City elected to construct the infrastructure at

its own expense (although it ultimately did not finish the construction), the City chose

between the two alternatives of (a) performing the work itself, and (b) Singletary

performing the work.

       Singletary’s argument is not persuasive because he has not shown that, prior to

the City’s construction, he refused or neglected to perform the work after being given

notice to perform, thus triggering the City’s obligation to choose between two

alternatives. Singletary asserts the City demanded he perform the construction work in

2009, and he rejected that demand in 2009. However, Singletary is relying on the City’s

construction contract with Riverside, entered into in 2005, as proof that the City chose

the alternative of constructing the infrastructure itself. The City could not have chosen

the alterative of constructing the infrastructure itself in 2005, when the event triggering


                                             40
an election of alternatives did not occur until four years later, in 2009. The portion of

the contract cited by Singletary does not provide for what shall/may occur if the City

simply decides to construct the infrastructure on its own, without the condition

precedent having occurred, i.e. Singletary’s refusal or neglect to commence construction

after notice is given by the City. Accordingly, summary adjudication should have been

denied as to this theory because the selection of alternatives is inapplicable.

       D.     WRITTEN NOTICE

       Next, we address Singletary’s contention that the City failed to perform an

express condition precedent of the 1992 agreement—providing 30 days written notice to

Singletary prior to incurring construction costs at Singletary’s expense.

              1.     CONTRACT LANGUAGE

       “Upon 30 days written notice by CITY to Singletary or successors in interest to

commence the construction and installation of said off-site and street improvements,

namely Pellisier Street improvements and on site improvements 32 foot wide private

road easement from Pellisier to remainder parcel as shown on Parcel Map 14405 he and

or they will do so in accordance with plans and installation of said off-site

improvements, he and or they will do so in accordance with plans and specifications

approved by CITY according to code, ordinances and policies then applicable or in

accordance with the aforementioned public utilities improvement district to accomplish

said construction as expeditiously as reasonably possible. The construction and

installation of said off-site and on-site improvements shall be at no cost whatsoever to

CITY.”


                                             41
              2.     LAW

       “A condition precedent is one which is to be performed before some right

dependent thereon accrues, or some act dependent thereon is performed.” (Civ. Code,

§ 1436.)

              3.     DISCUSSION

       There is nothing in the foregoing contract language about reimbursement. The

foregoing language, upon which Singletary is relying, concerns Singletary performing

construction work, and notice being a condition precedent to Singletary’s performance

of that construction work. There is no language about a condition precedent prior to the

City performing work or the City seeking reimbursement. Since there is no relevant

reimbursement language in the foregoing portion of the contract, it cannot be concluded

on this evidence that the City was required to give Singletary notice prior to performing

the work itself and/or seeking reimbursement. (See Crawford v. France (1933) 219 Cal.

439, 443 [evidence is admissible to prove any matter on which a contract is silent]; see

also American Industrial Sales Corp. v. Airscope, Inc. (1955) 44 Cal.2d 393, 397

[same].) Accordingly, summary adjudication should have been denied as to this theory

because it cannot be concluded on this evidence that notice was required prior to the

City engaging in its own construction work.

       On our own, we note the 1992 agreement includes a clause, which we have

already quoted multiple times, with the following language: “In the event Singletary or

successor in interest shall refuse or neglect to commence the installation of said

improvements within one week after the aforesaid 30 days notice [to commence


                                            42
construction], or to finish the installation within a reasonable period of time, CITY may

at its expense by separate contract or force labor accomplish the installation and

construction of said improvement and Singletary or successor in interest shall be liable

to CITY for its costs thereof including, but not limited to overhead, labor and material.

Said liability shall be a lien on the real property described herein, as a condition of said

parcel map.”

       This clause also does not apply to the situation at hand. The situation being that,

prior to 2009, the City commenced construction without giving notice to Singletary.

The clause does not provide that the City may only seek reimbursement upon giving

notice. Rather, it provides for what may occur if notice is given and Singletary declines

to perform. The contract does not set forth a plan for what will occur in the current

situation. For example, the contract does not read, “the City shall only seek

reimbursement upon first having provided 30 days written notice to Singletary,” thereby

negating the possibility of the City obtaining a reimbursement without first providing

notice. The contract simply does not cover the situation as it occurred in this case.

Accordingly, we are not persuaded that giving notice is an express condition precedent

that the City failed to perform prior to seeking reimbursement.

       E.      UNJUST ENRICHMENT

       Next, we examine Singletary’s assertion that he has no duty to reimburse the City

under a theory of unjust enrichment. Without citing any new contract language,

Singletary contends the City failed to perform an express condition precedent, i.e., the

City failed to provide Singletary notice prior to performing the construction work.


                                             43
Singletary reasons that because the City did not perform the express condition

precedent, it cannot prevail on a theory of unjust enrichment.

       Unjust enrichment does not lie where an express binding agreement is in place.

(California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001) 94

Cal.App.4th 151, 172.) As explained ante, the contract clause cited by Singletary is

silent concerning the City performing the construction work and/or seeking

reimbursement. Because Singletary has not cited evidence of a binding agreement

concerning the City’s performance of construction work and/or concerning the City

seeking reimbursement, his theory related to unjust enrichment is unpersuasive—

because one could possibly find there is not a contract on this point, unjust enrichment

could perhaps be applicable.

       Also, the clause this court raised on its own does not address the situation created

in this case—where the City seeks reimbursement without first notifying Singletary to

commence construction. Because the contract does not expressly include this situation,

it is possible the City could prevail on a cause of action for unjust enrichment—one

could perhaps find there is not a binding agreement for this situation thus triggering the

application of unjust enrichment. Accordingly, summary adjudication should have been

denied as to this theory.

       F.     VIOLATIONS AND OMISSIONS

       Next, we address Singletary’s contention that the 1992 agreement is

unenforceable because it (1) violates the Subdivision Map Act; (2) violates the Colton

Municipal Code; and (3) omits statutorily mandated terms.


                                            44
              1.     REIMBURSEMENT

                     a)     Law

                            (1)     Subdivision Map Act

       The Subdivision Map Act provides, “There may be imposed by local ordinance a

requirement that improvements installed by the subdivider for the benefit of the

subdivision shall contain supplemental size, capacity, number, or length for the benefit

of property not within the subdivision, and that those improvements be dedicated to the

public. Supplemental length may include minimum sized offsite sewer lines necessary

to reach a sewer outlet in existence at that time.” (Gov. Code, § 66485.)

       It further provides, “In the event of the installation of improvements required by

an ordinance adopted pursuant to [Government Code] Section 66485, the local agency

shall enter into an agreement with the subdivider to reimburse the subdivider for that

portion of the cost of those improvements, including an amount attributable to interest,

in excess of the construction required for the subdivision.” (Gov. Code, § 66486.)

       Additionally, the Subdivision Map Act reflects, “In order to pay the costs as

required by the reimbursement agreement, the local agency may: [¶] . . . [¶]

(c) Establish and maintain local benefit districts for the levy and collection of such

charge or costs from the property benefited.” (Gov. Code, § 66487.)

                            (2)     Colton Municipal Code

       The Colton Municipal Code reads, “Pursuant to Section 66485 of the Subdivision

Map Act, the Subdivider May be required to install Improvements for the benefit of the

Subdivision which May contain supplemental size, capacity or number for the benefit of


                                            45
Property not within the Subdivision as a condition precedent to the Approval of a

Subdivision or Parcel map, and thereafter to dedicate such Improvements to the public.

However, the Subdivider Shall be reimbursed for that portion of the cost of such

Improvements equal to the difference between the amount it would have cost the

Subdivider to install such Improvements to serve the Subdivision only and the actual

cost of such Improvements pursuant to the provisions of the Sections [sic] 66486 and

66487 of the Subdivision Map Act. Such reimbursement Shall be accomplished by the

provisions of an agreement by and between the Subdivider and the City.” (Colton

Muni. Code, § 16.56.020.)

                    b)      Discussion

      Singletary contends that because the 1992 agreement does not include a

provision for reimbursing him for public improvements, the agreement violates the

Subdivision Map Act and the Colton Municipal Code, which require terms related to

reimbursement.

      The 1992 agreement includes language about offsite improvements. The offsite

improvements relate to water and sewer improvements. Therefore, arguably, Singletary

agreed to perform work that would benefit property not within the subdivision—it is

also possible the offsite improvements would only benefit the subdivision, but both

interpretations are possible from the contract language. As a result, we will assume the

reimbursement rules are applicable.




                                           46
       Notably, the 1992 agreement contains the following clause: “Singletary or

successors in interest agree to the formation of a public improvement utility district for

permanent water and sewer system, and agree to be a party to the public improvement

utility district which includes Singletary or successors [in] interest paying a

proportionate share of the public improvement utility district costs.”

       Thus, it appears from the 1992 agreement that Singletary and the City chose for

Singletary to pay only his portion of the improvement costs via the establishment and

maintenance of a “local benefit district[] for the levy and collection of such charge or

costs from the property benefited.” (Gov. Code, § 66487, subd. (c).) Because the

agreement includes language about Singletary only paying his portion of the costs, we

conclude the rules requiring a reimbursement clause were not violated.

              2.     NECESSARY IMPROVEMENTS

                     a)      Law

       As set forth ante, the Subdivision Map Act provides, “There may be imposed by

local ordinance a requirement that improvements installed by the subdivider for the

benefit of the subdivision shall contain supplemental size, capacity, number, or length

for the benefit of property not within the subdivision, and that those improvements be

dedicated to the public. Supplemental length may include minimum sized offsite sewer

lines necessary to reach a sewer outlet in existence at that time.” (Gov. Code, § 66485,

italics added.)




                                             47
                     b)      Discussion

       Singletary contends the 1992 agreement violates Government Code section

66485 because the supplemental length for the sewer lines was not necessary for

reaching the sewer outlet. In support of this assertion, Singletary cites a portion of the

1992 agreement which reads, “It is deemed unnecessary at this time for said site

improvements to be so constructed and installed as part of said parcel map.” This

language does not support Singletary’s assertion that there is a violation. The language

does not reflect that any supplemental length is unnecessary for reaching the sewer

outlet. Rather, the wording provides that none of the infrastructure improvements need

to be immediately constructed.

       This interpretation is supported by the clause following the portion cited by

Singletary. The clause that follows the cited language reads, “CITY desires to continue

its right to require the installation and construction of said off-site improvements, in the

future, the exact date of which is uncertain, but it is contemplated that said

improvements may coincide with further or other development upon said real property

or property contiguous thereto or nearby, and by the formation of a public improvement

utilities district.” Thus, it appears the construction was unnecessary because no

development was occurring in the area at the time of the agreement in 1992. There is

nothing reflecting the supplemental length was unnecessary for reaching the sewer

outlet. Accordingly, we conclude Singletary’s argument fails on this point.




                                             48
               3.     SPECIFIED TIME

                      a)      Contract Language

       As set forth ante, the 1992 agreement reads, “CITY desires to continue its right

to require the installation and construction of said off-site improvements, in the future,

the exact date of which is uncertain, but it is contemplated that said improvements may

coincide with further or other development upon said real property or property

contiguous thereto or nearby, and by the formation of a public improvement utilities

district.” (Italics added.)

       Further, the 1992 agreement provides, “Upon 30 days written notice by CITY to

Singletary or successors in interest to commence the construction and installation of

said off-site and street improvements, namely Pellisier Street improvements and on site

improvements 32 foot wide private road easement from Pellisier to remainder parcel as

shown on Parcel Map 14405 he and or they will do so in accordance with plans and

installation of said off-site improvements, he and or they will do so in accordance with

plans and specifications approved by CITY according to code, ordinances and policies

then applicable or in accordance with the aforementioned public utilities improvement

district to accomplish said construction as expeditiously as reasonably possible.”

(Italics added.)

                      b)      Law

                              (1)   Colton Municipal Code

       The Colton Municipal Code provides, “If such Improvement work is not

completed satisfactorily before the final or Parcel map is Approved, the Subdivider


                                            49
Shall be required to enter into an agreement with the City whereby said Improvements

Shall be completed within a specified time. To assure that such work will be

accomplished, the Subdivider Shall furnish to the City security as described in this

chapter.” (Colton Muni. Code, § 16.56.030 [italics added].)

                            (2)    Statutory Law

       Government Code section 66411.1, subdivision (b), provides, “Notwithstanding

Section 66428, fulfillment of the construction requirements shall not be required until

the time a permit or other grant of approval for development of the parcel is issued by

the local agency or, where provided by local ordinances, until the time the construction

of the improvements is required pursuant to an agreement between the subdivider and

the local agency . . . .”

                            (3)    Municipal Contracts

       In regard to municipal contracts, case law provides, “‘Certain general principles

have become well established with respect to municipal contracts . . . . The most

important one is that contracts wholly beyond the powers of a municipality are void.

They cannot be ratified; no estoppel to deny their validity can be invoked against the

municipality; and ordinarily no recovery in quasi contract can be had for work

performed under them. It is also settled that the mode of contracting, as prescribed by

the municipal charter, is the measure of the power to contract; and a contract made in

disregard of the prescribed mode is unenforceable.’” (Miller v. McKinnon (1942) 20

Cal.2d 83, 88.)




                                           50
                             (4)    Lack of Specified Time

       In relation to contracts in general, statutory law provides, “If no time is specified

for the performance of an act required to be performed, a reasonable time is allowed. If

the act is in its nature capable of being done instantly—as, for example, if it consists in

the payment of money only—it must be performed immediately upon the thing to be

done being exactly ascertained.” (Civ. Code, § 1657.)

                     c)      Discussion

       The 1992 agreement does not include a specific time by which the construction

work must be completed, e.g., by March 2005 or within 365 days. Singletary asserts the

failure to include a specific completion time causes the contract to be unenforceable

because it exceeds the City’s contracting authority by violating the City’s municipal

code. The City asserts the contract terms meet the requirements of Government Code

section 66411.1.

       To resolve this issue we must interpret the statute. When interpreting a statute,

we begin by examining the statute’s plain language. If the wording is clear and

unambiguous, then our inquiry ends. (Piscioneri v. City of Ontario (2002) 95

Cal.App.4th 1037, 1043 [Fourth Dist., Div. Two].)

       For reference, as set forth ante, the statute provides, “Notwithstanding Section

66428, fulfillment of the construction requirements shall not be required until the time a

permit or other grant of approval for development of the parcel is issued by the local

agency or, where provided by local ordinances, until the time the construction of the




                                             51
improvements is required pursuant to an agreement between the subdivider and the local

agency . . . .” (Gov. Code, § 66411.1, subd. (b), italics added.)

       “‘[U]se of the word “or” in a statute indicates an intention to use it disjunctively

so as to designate alternative or separate categories.’” (Piscioneri v. City of Ontario,

supra, 95 Cal.App.4th at p. 1044.) Government Code section 66411.1, subdivision (b),

provides construction requirements need not be fulfilled until (1) a development permit

is issued; or (2) if a local ordinance is in effect, then by the time required in an

agreement between the subdivider and local agency. The statute creates alternatives by

the use of the word “or.” The local ordinance option does not take precedence over the

“development permit” option—there are two alternatives set forth in the statute.

       In the 1992 agreement, Singletary and the City selected the development permit

option. The 1992 agreement reflects, “it is contemplated that said improvements may

coincide with further or other development upon said real property or property

contiguous thereto or nearby, and by the formation of a public improvement utilities

district.” This language establishes that the construction requirements will need to be

fulfilled in connection with development permits being issued, as set forth in

Government Code section 66411.1, subdivision (b). Accordingly, the 1992 contract

falls within the City’s contracting authority. Thus, summary adjudication should have

been denied as to this theory.




                                              52
       G.     BRIBERY CONVICTION

       Singletary’s final contention in his motion for summary adjudication is that his

bribery conviction did not void the City’s preexisting obligations with respect to

constructing the infrastructure. The obligations to which Singletary refers are those

allegedly created by (1) the City’s 1991 annexation agreement, and (2) the 2005 and

2009 agreements with Riverside.

       This issue does not assist with resolving a motion for summary adjudication. If

the City has obligations and those obligations are unaffected by Singletary’s bribery

conviction, then it would seem there are triable issues of fact, i.e., whether the City is

obligated to construct anything, whether the City has met its obligations, etc. Because

this issue appears to create triable issues of fact, rather than resolve them, we do not

address it further. Summary adjudication should have been denied as to this theory.

       H.     CONCLUSION

       The trial court erred by granting Singletary’s motion for summary adjudication,

or what was effectively summary judgment. Singletary’s motion against the City’s First

Amended Cross-Complaint should have been denied.4




       4 The City requests this court take judicial notice of a November 14, 2012, e-
mail from the trial court that contains the trial court’s rulings on evidentiary objections.
We grant the request as required by law. (Evid. Code, §§ 452, subd. (c), 453.)


                                             53
                                     DISPOSITION

       The judgment on the City’s motion, against Singletary’s Third Amended

Complaint, is affirmed. The judgment on Singletary’s motion, against the City’s First

Amended Cross-Complaint, is reversed. The City is awarded its costs on appeal and

cross-appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     MILLER
                                                                                        J.


We concur:


KING
                      Acting P. J.


CODRINGTON
                                J.




                                          54
