H.P. Automotive and Tow v. City of Huntington Park CA2/8

Filed 12/6/22 H.P. Automotive and Tow v. City of Huntington Park CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
H.P. AUTOMOTIVE AND TOW, B306213
INC.,
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. VC066929
v.
THE CITY OF HUNTINGTON
PARK,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Margaret Miller Bernal, Judge. Affirmed.
Yacoubian & Powell and Stewart J. Powell for Plaintiff and
Appellant.
Olivarez Madruga Lemeiux O’Neill, Terence J. Gallagher
and Edward B. Kang for Defendant and Respondent.
_______________________
Appellant H.P. Automotive and Tow, Inc. (HP Tow)
contracted with the City of Huntington Park (the City) to provide
vehicle towing and storage services. After a federal grand jury
indicted HP Tow, it entered into a Deferred Prosecution
Agreement (DPA) with the United States Attorney’s Office. As
part of the resolution of the federal charges, HP Tow expressly
admitted to a Statement of Facts attached to the DPA which
showed HP Tow had corruptly paid a City Councilmember to
obtain a rate increase.
When the City learned of the allegations, it terminated the
contract. HP Tow then brought this action against the City for
breach of contract and breach of the implied covenant of good
faith and fair dealing. In granting the City’s motion for summary
judgment, the trial court found no triable issue of material fact as
to whether HP Tow engaged in conduct in violation of the
contract. The court also found no violation of the implied
covenant of good faith and fair dealing, which was based on the
same conduct as the breach of contract claim.
HP Tow appeals, contending there were triable issues of
material fact as to a myriad of issues. But we find it unnecessary
to address every issue as we conclude HP Tow’s express adoption
of the factual allegations set out in the Indictment, DPA and
Statement of Facts conclusively establish HP Tow breached the
contract by violating the law. We affirm the judgment.
BACKGROUND
Since 1999, HP Tow provided vehicle tow and storage
services to the City of Huntington Park by written contract. The
contract set out the rights and responsibilities of the parties
under the agreement. Paragraph 7 of the contract, entitled
“EMPLOYEE STANDARDS,” provides “TOW SERVICE agrees to
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see that all its units and employees shall conduct their business
in an orderly, ethical, businesslike manner and use every means
to obtain and keep the confidence of the motoring public.”
Paragraph 14, entitled “RATES AND CHARGES,” permits HP
Tow to apply for a rate adjustment annually and provides: “TOW
SERVICE shall make no payments for this contract and shall
give no gifts to any of CITY’s officers or employees.” Paragraph
16 permits the City to terminate the contract if HP violates the
contract and fails to cure the violation within 90 days.
On August 19, 2013, HP Tow proposed a rate increase for
its services. The five-member City Council voted on the request,
which did not pass. City Councilmember Valentin Amezquita
and two other members voted against the request.
According to the admitted Statement of Facts attached to
the DPA, Sigrid Lopez, a lobbyist for HP Tow, contacted
Amezquita the day after the vote to set up a meeting.
Unbeknownst to Lopez or HP Tow, Amezquita was acting as a
cooperating source for the FBI.1 The meeting took place on
August 29, 2013, and was attended by Lopez, Sukhbir Singh, a
co-owner and officer of HP Tow, and Councilmember Amezquita.
Singh asked Amezquita for his “support” and “blessing” to move
the rate increase measure forward. Lopez told Amezquita that
she and Singh would be there to help Amezquita if he needed
help with any “kick off or remaining [campaign] debts” or future
campaign events. She said, “You don’t have to ask [for support]
because we will be there, ok, . . . and that’s because you make it
natural for us to want to help.”
1 The Statement refers to Cooperating Source 1 or CS-1.
There is no dispute this was Amezquita.
3
The Statement of Facts details additional meetings
between Singh and Amezquita from October 2013 through
January 2014. Singh gave Amezquita eight checks totaling
$2000 over the course of the meetings. These checks were from
Singh and his friends and family. During the meetings, Singh
made clear he wanted Amezquita’s help in passing a rate
increase measure. He also wanted Amezquita to pressure the
City’s police chief to tow and impound more vehicles.
On January 21, 2014, the City Council unanimously
approved the rate increases proposed by HP Tow. Amezquita
was not present and did not vote.
On October 5, 2015, the federal government filed a federal
criminal complaint against Singh and Jimmy Sandhu, another
co-owner of HP Tow. The complaint alleged that between August
2013 and March 2015, the men conspired to commit federal
program bribery in violation of title 18 of the United States Code
section 666. The complaint expressly incorporates an affidavit
from FBI Special Agent Jason Dalton. The affidavit sets forth
the federal government’s case against the men, which involved
payments to City Councilmember Amezquita. The affidavit sets
out verbatim conversations between Amezquita and Singh which
were recorded by Amezquita with equipment supplied by the FBI.
The Statement of Facts, which was later attached to the DPA, is
a condensed and redacted version of this affidavit.
On December 23, 2015, the City Council held a special
meeting and voted to terminate HP Tow’s contract. It is not clear
from the record whether the City was aware of the investigation
or complaint at that time. The termination letter sent the same
day states the City was terminating the contract effective March
31, 2016, and indicates the termination was due to the high cost
4
of HP Tow’s services. On February 16, 2016, the City rescinded
the termination but voted again to terminate the contract on the
ground that HP Tow had violated the law and thereby also
violated the contract.
On February 22, 2016, City sent a second letter to HP Tow.
This letter states HP Tow had been found in breach of the
contract. The letter states the City is aware of a criminal
complaint against Singh and Sadhu alleging a conspiracy to
commit bribery, and of the supporting affidavit of FBI Special
Agent Jason Dalton which states that offers of payment were
made to a member of the City Council. The letter states that this
information showed conduct in violation of Paragraph 14 of the
contract.
The letter also advises there is an implied provision in the
contract that HP Tow must comply with all federal, state and
local laws, and that the current criminal charge “places into
question HP Tow’s compliance with such implied terms of the
[contract].” The City later indicated that in the letter it was
referring to Paragraph 7 of the contract, which required HP Tow
to conduct its business in an ethical, businesslike and orderly
manner.
On February 26, 2016 the U.S. Attorney’s Office (USAO)
filed a two-count Indictment against HP Tow and Singh.2 The
Indictment alleges HP Tow and Singh committed one count of
bribery in violation of title 18 of the United States Code section
666(a)(2) and Singh made a false statement to the FBI in
violation of title 18 of the United States Code section 1001(a)(2).
2 Co-owner Sandhu was not named in the Indictment.
5
On July 13, 2016, Singh entered into a plea agreement in
which he agreed to plead guilty to making a false statement to a
government agency in exchange for dismissal of the remaining
bribery count and a recommendation for a reduced sentence.3
On October 14, 2016, HP Tow entered into the DPA. As
part of this agreement, “HP Tow admits, accepts and
acknowledges that it is responsible under United States law for
the acts of its officers, directors, employees, and agents as
charged in the Indictment and as set forth in the Statement of
Facts, which are incorporated herein by reference, and that the
allegations in the Indictment and the facts described in the
Statement of Facts are true and accurate.” (Italics added.) The
DPA further provides: “HP Tow expressly agrees that it shall not,
through present or future attorneys, officers, directors,
employees, agents, or any other person authorized to speak for
HP Tow make any public statement, in litigation or otherwise,
contradicting the acceptance of responsibility by HP Tow set forth
above or the facts described in the attached Statement of Facts.”
3 The false statement occurred when an FBI agent asked
Singh: “[D]o they either ask you to do it this way or do you ever
tell them the way that we’re gonna do it is we’re gonna have [the
payment] come from other people that way it doesn’t look like it’s
coming from H-P Tow.” Singh replied: “Oh no. We never have a
conversation like that. No.” In fact, on October 4, 2013, Singh
and Amezquita discussed this topic. Singh said: “[W]hat we can
do, we can get it from friends, checks . . . . [¶] . . . [¶] Which
doesn’t show [it’s] under H-P Tows.”
6
On February 15, 2018, HP Tow filed the present complaint
alleging two causes of action against the City for breach of
contract and breach of the implied covenant of good faith and fair
dealing. City sought and obtained summary judgment and this
appeal followed.
DISCUSSION
We review the grant of a motion for summary judgment de
novo. (Nakamura v. Superior Court (2000) 83 Cal.App.4th 825,
834.) A defendant moving for summary judgment has the burden
to establish a complete defense or to show that one or more
elements of the plaintiff’s cause of action cannot be established.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849–850.)
Once the defendant has done so, the burden shifts to the plaintiff
to present admissible evidence that a triable issue of material
fact exists. (Id. at pp. 850, 855–856.) In determining whether
there is a triable issue of material fact, we “liberally constru[e]
the evidence in support of the party opposing summary judgment
and resolv[e] doubts concerning that evidence in favor of that
party.” (Miller v. Department of Corrections (2005) 36 Cal.4th
446, 460.) We draw all reasonable inferences in favor of the
opposing party. (Aguilar, at p. 843.)
A. HP Tow’s Payments Breached the Contract and the City’s
Termination of the Contract Was Proper.
The City moved for summary judgment on the ground that
HP Tow’s “prior material breach of the [contract] excused and
authorized [the City’s] termination of the [contract]. (See, e.g.,
Plotnick v. Meihaus (2012) 208 Cal.App.4th 1590, 1602.)”
The City contended HP Tow had breached Paragraphs 7
and 14 of the contract by providing payments to Amezquita,
7
disguised as campaign contributions, “in exchange for both a
favorable vote on the Rate Increase Measure, as well as pressure
by Mr. Amezquita on the City’s police chief to increase the
amount of impounds and tows thus increasing [HP Tow’s]
revenues.”
Appellant contends there are disputed issues of material
fact as to whether it breached the contract, specifically whether
(1) the payments made to Amezquita were payments for a
contract prohibited by Paragraph 14 of the contract and/or
whether they were gifts prohibited by Paragraph 14; (2) whether
the contract contains a term requiring HP Tow to comply with all
laws; (3) whether Singh’s and Sandhu’s interactions with
Amezquita violated the law; and (3) whether the City violated
Paragraph 16 of the contract by acting capriciously in
terminating the contract without investigating the criminal
allegations against HP Tow or allowing HP Tow a meaningful
opportunity to cure. We have reviewed the grant of summary
judgment de novo and find no disputed issues of material fact.
The trial court did not err.
1. HP Tow Violated Federal Law and Thereby Violated
Its Contract with the City.
Paragraph 7 of the contract requires HP to conduct its
business in “an orderly, ethical, businesslike manner.” The
general meaning of ethical behavior is “conforming to accepted
standards of conduct”4 or “pertaining to right and wrong in
4 Merriam-Webster Dictionary Online (2022)
[as of
December 6, 2022], archived at .
8
conduct.”5 At a minimum this requires following applicable laws
in the conduct of its business.
Paragraph 14 of the contract prohibits HP Tow from
making “payments for [the] contract” or giving “gifts to any of
CITY’S officers or employees.” To paraphrase a saying about
gravity, these requirements are not merely good ideas, they are
the law: such payments are illegal under state and federal law.
Thus, at a minimum the contract requires HP Tow to follow the
laws prohibiting payments to government officials in exchange
for the contract, or favorable actions under the contract. This is
the law at issue in this matter. Our conclusion is only reinforced
by the fact that HP Tow itself relies on California law to give
meaning to the provisions of Paragraph 14.
The trial court found HP Tow breached Paragraphs 7 and
14 of the contract by taking the actions described in the
Statement of Facts attached to the DPA; it is undisputed HP Tow
admitted those facts, which included making corrupt payments to
Amezquita. We have independently reviewed the DPA’s
Statement of Facts and the Indictment and have reached the
same conclusion as the trial court: the admitted facts show Singh,
then HP Tow’s president, made payments to Amezquita in
exchange for Amezquita’s agreement to help obtain approval of
HP Tow’s requested rate increase, and to push the City police
chief to impound more vehicles by saying a public safety issue
was involved. These acts violated both federal law and the terms
5 Collins Dictionary Online (2022)

[as of December 6, 2022], as archived at https://perma.cc/L6LL-
JV55>.
9
of the contract. Further, even assuming the Statement of Facts
was not sufficient to show a violation of the law, we find the DPA
itself contains an admission by HP Tow that it is responsible for
Singh’s violations of the law.
Splitting hairs, HP Tow contends there are triable issues of
fact because it has never admitted that its actions violated any
law. In support of its position that it never admitted guilt, HP
points to this sentence in the DPA: “HP Tow’s entry into this
Agreement does not constitute an admission that it is guilty of
the offense charged in the Indictment.”
To that contention, we say, “So what.” It is immaterial
whether HP Tow admitted the legal conclusion that it was guilty
of a crime. It admitted the facts that supported the court’s legal
conclusion that it had acted unethically and illegally and
therefore in breach of the contract. In the section entitled
“Criminal Indictment and Acceptance of Responsibility,”
the DPA clearly states: “HP Tow admits, accepts and
acknowledges that it is responsible under United States law for
the acts of its officers, directors, employees, and agents as charged
in the Indictment and as set forth in the Statement of Facts,
which are incorporated herein by reference, and that the
allegations in the Indictment and the facts described in the
Statement of Facts are true and accurate.” (Italics added.) One
of the factual allegations in the Indictment is that “Beginning in
or about August 2013 . . . defendants SUKHBIR SINGH and H.P.
TOW, corruptly gave, offered to give, and agreed to give, things of
value, namely campaign checks, to Cooperating Witness 1
[Amezquita], intending to influence and reward Cooperating
Witness 1 in connection with a business, a transaction, and series
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of transactions of the City . . . namely, the towing of vehicles and
the storage of towed vehicles in the City.”6
Moreover, the sentence HP Tow relies on simply means it is
not entering a formal plea of guilty or no contest in the federal
criminal proceedings. The context of the statement makes this
completely clear. The statement is part of a discussion of the
effect of the DPA if the US Attorney pursues the prosecution of
the case: “Should the USAO pursue the prosecution that is
deferred by this Agreement, HP Tow stipulates to the
admissibility of the Statement of Facts . . . and will not contradict
anything in the Statement of Facts at any such proceeding. HP
Tow’s entry into this Agreement does not constitute an admission
that it is guilty of the offense charged in the Indictment.” In
other words, if the USAO pursues prosecution, the DPA does not
prevent HP Tow from entering a not guilty plea and demanding a
trial. However, although HP Tow did not enter a formal plea of
guilty, it did agree not to contradict the facts as stated in the
Statement of Facts and it adopted as true the factual allegations
of the Indictment. They are indisputable for purposes of a
criminal trial.
For our purposes, in a section entitled “Public Filings &
Statements,” the DPA sets forth a different requirement for HP
Tow in proceedings other than a federal criminal prosecution.
There, “HP Tow expressly agrees that it shall not, through
present or future attorneys, officers, directors, employees, agents,
6 According to the DPA, the US Attorney agreed to enter into
the Agreement in part due to “HP Tow’s willingness to
acknowledge and take responsibility for the actions of its
agent(s).”
11
or any other person authorized to speak for HP Tow make any
public statement, in litigation or otherwise, contradicting the
acceptance of responsibility by HP Tow set forth above or the
facts described in the attached Statement of Facts.” Thus, HP
Tow is stuck with the facts it admitted. The admitted fact that
HP Tow “corruptly” offered payments to Amezquita remains
undisputed, as part of its acceptance of responsibility.
Even absent this provision of the DPA, HP Tow would be
judicially estopped from contradicting its acceptance of
responsibility in the DPA. “ ‘Judicial estoppel prevents a party
from asserting a position in a legal proceeding that is contrary to
a position previously taken in the same or some earlier
proceeding. The doctrine serves a clear purpose: to protect the
integrity of the judicial process.’ ” (Jackson v. County of Los
Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).) “[J]udicial
estoppel is especially appropriate where a party has taken
inconsistent positions in separate proceedings.” (Ibid.) “ ‘The
gravamen of judicial estoppel is not privity, reliance, or prejudice.
Rather, it is the intentional assertion of an inconsistent position
that perverts the judicial machinery.’ ” (Id. at p. 183.)
“ ‘ “Judicial estoppel is ‘intended to protect against a litigant
playing “fast and loose with the courts.” ’ ” ’ ” (Id. at p. 181.)
The doctrine applies “when: (1) the same party has taken
two positions; (2) the positions were taken in judicial or quasi-
judicial administrative proceedings; (3) the party was successful
in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally
inconsistent; and (5) the first position was not taken as a result of
ignorance, fraud, or mistake.” (Jackson, supra, 60 Cal.App.4th at
p. 183.) HP Tow has not claimed that its position in the federal
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criminal proceedings were taken as a result of ignorance, fraud,
or mistake. The remaining requirements are clearly met here.7
2. HP Tow Has Forfeited Its Claim That the City Lacked
Sufficient Knowledge of HP Tow’s Criminal Activity.
HP Tow contends the City could not have relied on the
admissions of the DPA to terminate the contract, because the
DPA was executed in October 2016, months after the City first
terminated the contract in December 2015 and then re-
terminated the contract in February 2016. HP further contends
that City did not know any details of Singh’s and Sandhu’s
interactions with Amezquita and did not conduct any due
diligence or ask HP Tow about the allegations, and so there is a
triable issue of material fact as to whether the City acted
capriciously in terminating the contract.
As part of this contention, HP Tow now claims the
December 23, 2015 letter was a breach of contract. HP Tow is
judicially estopped from making this contention because it
claimed in opposition to the motion for summary judgment that
the letter itself did not constitute a breach because the
termination was not effective until March 31, 2016. HP Tow in
fact relied on this argument to defeat summary judgment on the
7 To be clear, the DPA in this case, as is the norm in federal
court, took the form of a pleading filed with the federal court.
A DPA must be approved by the court because its “viability
depends on the specific exclusion of time for such agreements set
forth in the Speedy Trial Act, 18 U.S.C. § 3161(h)(2)” which
requires court approval. (U.S. v. Fokker Services B.V. (D.C. Cir.
2016) 818 F.3d 733, 739.) Thus, the requirement for taking a
position in a judicial proceeding is met.
13
ground that the action was barred by the statute of limitations.
(See Jackson, supra, 60 Cal.App.4th at pp. 181–183 [discussing
doctrine of judicial estoppel].)8
As for the City’s knowledge when it voted on February 16,
2016 to terminate the contract, the declaration of the City’s Chief
of Police Cosme Lozano established that the City was aware of
the criminal charges involving HP Tow in late 2015 or early 2016.
The City attached an article from the Los Angeles Times dated
January 15, 2016, to its motion for summary judgment; the
article states that Amezquita was the FBI informant in the
Huntington Park bribery case, Amezquita recorded his
conversations with Singh, and details of the conversations could
be found in an affidavit written by the lead FBI agent in the case.
Two citizens expressly mentioned the FBI investigation at the
regular City Council meeting on February 2, 2016, while others
more generally mentioned laws being broken. The City’s mayor
“addressed allegations regarding the FBI.”
The February 22, 2016 letter terminating the contract, sent
to Singh’s attention, specifically states that the City “has been
informed that a Federal Investigation (‘Investigation’) has been
conducted and is currently ongoing which involves you and other
individuals employed or associated with HP Tow. (See
8 Further, it is undisputed that HP Tow did not “ ‘treat the
[letter] as an anticipatory breach and immediately seek damages
for breach of contract, thereby terminating the [contract].’ ” (See
Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489.)
So, under HP Tow’s position in the trial court, before the breach
of contract occurred on the stated termination date of March 31,
2016, the City rescinded the termination.
14
Magistrate’s Case No. M 15 01849.) Pursuant to the records of
the Investigation, a Criminal Complaint has been filed which
alleges a conspiracy by you and Jimmy Sandhu to commit an
offense pursuant to the federal bribery program (18 U.S.C. § 666).
The Investigation further sets forth and alleges through an
Affidavit of FBI Special Agent Jason Dalton that offers of
payments were made to a member of the Huntington Park City
Council.” The letter memorializes the February 16, 2016 vote to
terminate, and the only reasonable inference from this letter is
that the City was aware of this information when it conducted
that vote. We note the letter also gives HP Tow 90 days to cure
the breach.
HP Tow has not cited any cases discussing what amount or
type of proof is required where one party terminates a contract
based on information that another party has violated a provision
of the contract by violating the law. Thus, HP Tow has forfeited
its claim that City acted without sufficient knowledge of the
details of HP Tow’s conduct. (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 286–287.) To the extent that HP Tow also
contends the terminating party must wait until the violating
party admits criminal liability or is convicted of a crime, it has
forfeited that claim for the same reasons. Even assuming the
issue were not forfeited, we would not agree with HP Tow. There
is no guarantee that a criminal prosecution will be pursued in
every instance of alleged wrongdoing. The issue may then be
determined in a civil case alleging breach of contract. Had HP
Tow not entered into the DPA, rendering the facts indisputable,
it could have litigated the issue of its conduct and disputed the
factual account in a trial of the complaint it filed in this action.
15
3. The City Provided the Required Opportunity for Cure.
HP Tow contends there is a triable issue of material fact as
to whether the City provided the contractually required
opportunity for HP Tow to cure the alleged breach or whether it
acted capriciously in terminating the contract. Part of this claim
is a variation of HP Tow’s claim that the City did not have
evidence of HP Tow’s violation of the contract: HP Tow contends
the City had no evidence of a violation and improperly tried to
shift the burden of proof to HP Tow to disprove the unfounded,
unproven, nonspecific allegation of a breach under the guise of
requiring a cure. As set forth above, the City’s letter mentioned
the criminal complaint and incorporated FBI affidavit as the
basis for its breach allegation, and HP Tow has forfeited any
claim that this was not sufficient knowledge. The letter provided
HP Tow the opportunity to refute or explain the criminal
investigation. HP Tow does not explain what other “cure” was
possible.
HP Tow further contends that a letter sent by its counsel
within the 90-day cure period cured the breach by refuting the
allegations with both fact and law. The City was permitted to
evaluate the denials and find them unpersuasive. Had HP Tow
not entered into the DPA, it could have sought a determination of
whether that letter “cured” the breach by showing no violation of
the law.
HP Tow also claims that there is a triable issue of material
fact as to whether City had an actual intention of allowing a cure,
because City voted to terminate the contract before sending the
letter. In fact, the letter states the City is providing a 90-day
notice of termination to permit a cure, and the contract will be
terminated at the end of that period if no cure was made. As the
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City’s actions connected to the December 2015 termination notice
show, the City was capable of rescinding a termination within the
90-day notice/cure period. Thus, there is no triable issue of
material fact about City’s intentions, assuming such an intention
would be relevant.
B. The Cause of Action for Breach of the Implied Covenant of
Good Faith and Fair Dealing Is Superfluous and Properly
Disregarded.
HP Tow contends there are triable issues of material fact
concerning whether the City breached the implied covenant by
cancelling the contract in December 2015 in violation of the
Ralph M. Brown Act (Gov. Code, § 54950 et seq.), then rescinding
the action only to cancel the contract again in February 2016,
then “belatedly” attempting to justify its actions on an
interpretation of the contract that is not found in the contract’s
express terms, then immediately entering into a new contract
with a different company without conducting any due diligence or
waiting for the legal process to play out. We do not agree.
All but one of these contentions involve the same actions
which form the basis of the breach of contract cause of action. “If
the allegations [of the implied covenant breach] do not go beyond
the statement of a mere contract breach and, relying on the same
alleged acts, simply seek the same damages or other relief
already claimed in a companion contract cause of action, they
may be disregarded as superfluous as no additional claim is
actually stated. Thus, absent those limited cases where a breach
of a consensual contract term is not claimed or alleged, the only
justification for asserting a separate cause of action for breach of
the implied covenant is to obtain a tort recovery.” (Careau & Co.
17
v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1395.)
The only new or different contention is the suggestion that
the City somehow acted wrongly in immediately entering into a
new contract for towing services. Even assuming there was some
benefit to the City from the new contract, the termination of the
contract with HP Tow was authorized by the contract. A party
cannot violate the implied covenant by taking any action
expressly authorized under the terms of the contract, even if it
gains an advantage for itself by doing so. (Carma Developers
(Cal.), Inc. v. Marathon Development California, Inc. (1992)
2 Cal.4th 342, 376.)
HP Tow also claims on appeal that the entire scenario
leading up to the termination was “orchestrated” by Amezquita.
Amezquita was not acting as an agent of the City in his
interactions with HP Tow representatives; he was acting as an
FBI cooperating source. It is undisputed that the City had no
foreknowledge of Amezquita’s role as an informant and did not
authorize him to act in that capacity. Thus, Amezquita’s actions
cannot form the basis of a breach by the City of the implied
covenant of good faith and fair dealing.
C. The Trial Court Did Not Abuse Its Discretion in Excluding
Portions of the Lopez and Sandhu Declarations.
In opposition to summary judgment, HP Tow submitted the
declarations of HP Tow lobbyist Lopez and HP Tow co-owner
Sandhu. HP Tow contends the trial court abused its discretion in
excluding portions of both declarations. As HP Tow
acknowledges, we review the trial court’s decision for an abuse of
discretion. (See, e.g., Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 852.) We find none.
18
HP Tow is judicially estopped from contradicting its
position in the federal criminal proceedings, and specifically from
denying responsibility for its actions and the actions of Singh.
That is the clear purpose of both declarations, and so the
declarations were not relevant, and the trial court did not abuse
its discretion in excluding portions of the declarations which
attempted to avoid or contradict HP Tow’s acceptance of
responsibility. In addition, even assuming for the sake of
argument that HP Tow could contradict the DPA, it was Singh
who made the payments in exchange for Amezquita’s assistance.
There is nothing in Lopez’s or Sandhu’s declarations to show that
Singh discussed his subjective intent in making the payments
with them and so the declarations lack personal knowledge and
foundation. HP Tow did not proffer a declaration from Singh
himself.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J. WILEY, J.
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