On 02/15/2018 a Contract - Other Contract case was filed by H P AUTOMOTIVE AND TOW, INC against CITY OF HUNTINGTON PARK in the jurisdiction of Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
RAUL A. SAHAGUN
MARGARET MILLER BERNAL
H.P. AUTOMOTIVE AND TOW INC. DBA HUB
CITY OF HUNTINGTON PARK A CALIFORNIA
CITY OF HUNTINGTON PARK CITY COUNCIL
LOZANO COSME IN HIS OFFICIAL CAPACITY
CISNEROS EDGAR IN HIS OFFICIAL CAPACITY
YACOUBIAN & POWELL LLP
POWELL STEWART BAKER
OLIVAREZ MQDRUGA LEMIEUX O'NEILL LLP
GALLAGHER TERENCE JOSEPH
KANG EDWARD B
9/24/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: REGARDING ANSWER/RESPONSIVE PLEADING ...)
5/14/2019: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER: HEARING DATE OF 5/7/19;)
5/15/2019: Order - ORDER RULING ON MATTER SUBMITTED
3/7/2019: Stipulation and Order - Stipulation and Order To Continue Hearing on Defendant City of Huntington Park's Demurrer to Plaintiff's First Amended Complaint
1/15/2019: Request for Judicial Notice
1/17/2019: Minute Order - Minute Order (Order to Show Cause Re: answer/responsive pleading to the ope...)
6/11/2018: Legacy Document - LEGACY DOCUMENT TYPE: Stipulation and Order
6/22/2018: Demurrer - without Motion to Strike - Demurrer of defendants City of Huntington Park, City of Huntington Park Council, Cosme Lozano, and Edgar Cisneros to plaintiff's complaint
6/28/2018: Request for Dismissal
6/28/2018: Request for Dismissal
8/2/2018: Minute Order - Minute order entered: 2018-08-02 00:00:00
11/14/2018: Minute Order - Minute Order (Case Management Conference)
11/14/2018: Other - - Other - Trial Setting Order
11/30/2018: Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued
10/30/2018: Order - Order re: hearing date of 10/30/18
8/27/2018: Other - -
Hearing02/18/2020 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Jury TrialRead MoreRead Less
Hearing02/04/2020 at 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Final Status ConferenceRead MoreRead Less
Hearing01/14/2020 at 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Mandatory Settlement Conference (MSC)Read MoreRead Less
Hearing12/12/2019 at 13:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion for Summary JudgmentRead MoreRead Less
Docketat 09:30 AM in Department F; Jury Trial ((time estimate for trial is 7-10 days)) - Not Held - Continued - StipulationRead MoreRead Less
DocketSeparate Statement (of Undisputed Facts in Support of Defendants' Motion For Summary Judgment or, Alternatively, Summary Adjudication); Filed by CITY OF HUNTINGTON PARK, a California (Defendant)Read MoreRead Less
DocketDeclaration (Evidence in support of Motion for Summary Judgment of Defendant); Filed by CITY OF HUNTINGTON PARK, a California (Defendant)Read MoreRead Less
DocketMotion for Summary Judgment (of Defendants; Or, In The Alternative, Summary Adjudication); Filed by CITY OF HUNTINGTON PARK, a California (Defendant)Read MoreRead Less
DocketRequest for Judicial Notice (in Support of Defendant's Motion For Summary Judgment, or Alternatively, Adjudication); Filed by CITY OF HUNTINGTON PARK, a California (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department F; Mandatory Settlement Conference (MSC) - Not Held - Continued - StipulationRead MoreRead Less
DocketRequest for Judicial Notice; Filed by Attorney for DefendantRead MoreRead Less
DocketStipulation and Order (RE: EXTENSION OF TIME TO FILE ANTI-SLAPP MOTION ); Filed by Attorney for DefendantRead MoreRead Less
DocketStipulation and Order; Filed by CITY OF HUNTINGTON PARK, a California (Defendant); CITY OF HUNTINGTON PARK CITY COUNCIL (Defendant); LOZANO, COSME, in his official capacity (Defendant) et al.Read MoreRead Less
DocketComplaint filed-Summons Issued; Filed by Attorney for PlaintiffRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNotice-Case Management Conference; Filed by ClerkRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by H.P. AUTOMOTIVE AND TOW, INC. dba HUB (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by H.P. AUTOMOTIVE AND TOW, INC. dba HUB (Plaintiff)Read MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketSummons; Filed by H.P. AUTOMOTIVE AND TOW, INC. dba HUB (Plaintiff)Read MoreRead Less
Case Number: VC066929 Hearing Date: February 13, 2020 Dept: SEC
H.P. AUTOMOTIVE AND TOW, INC. v. CITY OF HUNTINGTON PARK
CASE NO.: VC066929
Defendant CITY OF HUNTINGTON PARK, INC.’s Motion for Summary Judgment is GRANTED. Defendant CITY OF HUNTINGTON PARK, INC.’s alternative Motion for Summary Adjudication is MOOT.
Moving Party to give notice.
Defendants Request for Judicial Notice is GRANTED as to the existence of the documents, but not as to any hearsay statements contained therein. Cal Ev. Code §452(c)(d)(g)(h).
This breach of contract action was filed by Plaintiff H.P. AUTOMOTIVE AND TOW, INC. (“Plaintiff”) on February 15, 2018. On November 30, 2018, a First Amended Complaint was FILED. The relevant facts, as alleged, are as follows: “HP Tow has served the City since 1952, and since 1966 it has held the exclusive contract with the City to provide its police garage, towing and storage services.” (FAC ¶1.) “In late 2009, Mr. Sandhu assumed the position of HP Tow’s President and Mr. Sing became Chief Financial Officer. That same year, on or about June 1, 2009, HP Tow and the City entered into an amended and restated version of the towing, storage, and police garage contract. The amended and restated contract (the ‘Contract’) was originally set to terminate in 2015, but the parties later agreed to extend the term of service until June 30, 2022, unless cancelled in accordance with contract provisions. The contract expressly prohibited the City from cancelling the contract unless: (1) there had been a prior breach by HP Tow; (2) the City gave notice of the breach to HP Tow; and (3) HP Tow failed to correct the breach within 90-days. The Contract also forbade the City from cancelling the contract in a capricious manner.” (FAC ¶3.) “Despite the express terms of the Contract, on or about December 23, 2015, the City sought to terminate the Contract because the City Council believed HP Tow’s towing and storage rates—amounts that the City Council had previously approved—were too high. HP Tow had not breached the Contract, and the City did not issue a notice of violation that identifies any breach of HP Tow to cure. Nevertheless, the City Council voted to terminate the Contract and issued a request for proposals to replace HP Tow as the official police garage and tow service.” (FAC ¶4.)
The FAC asserts the following causes of action: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (3-5) Declaratory Relief. On May 15, 2019, this Court sustained the City’s demurrer to the third through fifth causes of action without leave to amend.
Defendant CITY OF HUNTINGTON PARK (“the City”) moves for summary judgment, or alternatively summary adjudication of the first and second causes of action.
First Cause of Action – Breach of Contract
Statute of Limitations
The City argues that the first cause of action is time-barred where “Plaintiff has stated in both correspondence and in response to discovery, that the date [the City] allegedly breached the agreement is December 23, 2015.” (DSSMF No. 22.)
In Opposition, Plaintiff argues that it’s claim for breach of contract is not time-barred because the City’s December 23, 2015 vote, although “unlawful”, did not constitute a breach because the termination of the Contract was not effective until March 31, 2016. (See PSSMF No. 35.)
Gov. Code §945.6 states, in pertinent part, “any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1…and Chapter 2… of Part 3 of this division must be commenced…(2) If written notice is not given in accordance with Section 913, within two years from the accrual of the cause of action.” (Gov. Code §945.6(a)(2).)
“A contract is totally breached and an anticipatory repudiation occurs when the promisor without justification and before he has committed a breach, makes a positive statement to the promise indicating that he will not or cannot substantially perform his contractual duties.” (Daum v. Superior Court (1964) 228 Cal.App.2d 283, 288.) As to contracts involving continuing obligations, “whether the breach is anticipatory or not, … the plaintiff may elect to rely on the contract despite a breach, and the statue of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract.” (Romano v. Rockwell Internat. (1996) 14 Cal.4th 479, 489.)
The instant case is analogous to Romano, supra. In Romano, the court addressed a breach of contract claim where the plaintiff alleged an implied contract not to terminate without good cause. The defendant argued that the statute of limitations began to run when it notified plaintiff his employment would be terminated, rather than the actual termination date. (Id at 486.) The court
rejected this argument, finding that the notification was at most, an anticipatory breach and repudiation, which the employee could disregard and wait to sue until the breach actually occurs. (Id.) “In the event the promisor repudiates the contract before the time for his or her performance has arrived, the plaintiff has an election of remedies- he or she may treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract, thereby terminating the contractual relation between the parties, or he [or she] can treat the repudiation as an empty threat, wait until the time for performance arrives and exercise his [or her] remedies for actual breach if a breach does in fact occur at such time. [Citation.]” (Id.)
Here, the December 23, 2015 letter which the City contends constitutes an actual breach states, “This letter is to thank you for services provided to the City of Huntington Park and also to provide you with notice of the city’s desire to terminate our current agreement with H.P. Tow no later than March 31, 2016. Accordingly, the City Council took action at a special City Council meeting earlier today authorizing my office to issue a Notice of Termination to your company effective March 31, 2015.” (PSSMF No. 35; Sandhu Decl., Ex. B.) The Court notes that the letter’s reference to March 31, 2015 appears to be typographical error, as it predates the writing of the letter. The December 31, 2015 letter does not constitute an actual breach of contract, but rather, an anticipatory breach. The earliest alleged actual breach did not occur until March 31, 2016.
The motion for summary adjudication of the first cause of action is denied on the basis that it is time-barred.
Excuse for Nonperformance
The City also argues that it is entitled to summary adjudication of the first cause of action where Plaintiff’s own prior material breaches of the Agreement excused and authorized Defendant’s termination of the Agreement. The City contends that Plaintiff breached two provisions of the Agreement prior to Defendant’s termination of the Agreement—Section 14 and Section 7. Section 14 of the Agreement states, “Tow service shall make payments for this contract and shall give no gifts to any of CITY’s officers of employees.” (DSSMF No. 3.) Section 7 of the Agreement states, “TOW SERVICE agrees to 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.” (DSSMF No. 4.) The City maintains that “Plaintiff first breached Sections 7 and 14 of the Agreement by providing payments to a City Councilmember, Valentin Amezquita, 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 amounts of impounds and tows thus increasing Plaintiff’s revenues. Plaintiff’s scheme is memorialized in
both the Indictment and the Deferred Prosecution Agreement’s statement of facts, both of which Plaintiff has signed are true and accurate representations of what occurred. (SSUF Nos. 30-31.)” (Reply 3:21-28.)
In Opposition, Plaintiff argues that there are triable issues of material fact as to whether Plaintiff’s purported prior breach(es) of the Agreement excuse any of the City’s alleged breach(es).
The elements of a cause of action for breach of contract are as follows: (1) a valid and enforceable contract; (2) a plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damage to plaintiff. (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822.)
As indicated above, in support of its argument that Plaintiff breached the Agreement prior to the City’s termination of the Agreement, the City proffers the Deferred Prosecution Agreement entered into by the United States Attorney’s Office on the one hand and Plaintiff H.P. Automotive and Tow, Inc. on the other hand. The Deferred Prosecution Agreement is signed and acknowledged by Plaintiff. The City maintains that the Deferred Prosecution Agreement’s statement of facts contain clear evidence of Plaintiff’s attempt to bribe Mr. Amezquita in breach of the Agreement. The Statement of Facts attached to the Deferred Prosecution Agreement states: “On or about July 15, 2013, HP Tow proposed a measure to the Huntington City Council that would have increased the towing and storage fees HP Tow was permitted to charge…. On or about August 19, 2013, the Huntington Park City Council voted against the measure. Cooperating Source 1 (‘CS-1’) was a member of the Huntington Park City Council who voted against the measure. [¶] On or about August 20, 2013, a lobbyist acting on behalf of HP Tow called CS-1 and the two set up a meeting, which Singh attended, for August 29, 2013. At this meeting, Singh indicated that he would like the Council to consider a tow measure increase given rising fuel costs and other surcharges. Also at the August 29 meeting, Singh asked CS-1’s ‘support’ and ‘blessing’ to move the measure forward because of rising operating expenses. Singh later told CS-1 that Singh would be there if CS-1 needed help with any ‘kick off or remaining [campaign] debts’ or future campaign events. Lobbyist A stated, ‘you don’t have to ask [for support] because we will be there, ok, we will be there and that’s because you make it natural for us to want to help.’[¶] On or about October 4, 2013, CS-1 met with Singh at the HP Tow yard in Huntington Park. After a discussion of the fee increase, CS-1 told Singh that he/she wanted to ask Singh something in private. CS-1 said, “I know when we first met, I don’t know if it was you or [Lobbyist A] who mentioned you could help me with….”…. Singh told CS-1, “definitely, if you have any debts after the election, we can help you to take care of that and we can set something up for next month sometime.”…. [¶] On October 17, 2013, CS-1 met with Singh once
again at a restaurant in Los Angeles. During the meeting, Singh explained that the Huntington Park City Council would vote again on the storage fee increase in the first week of January 2014. CS-1 reiterated that he would ‘help’ HP Tow and Singh.” (DSSMF No. 31; Defendant’s Exh. 16.) “On January 3, 2014, CS-1 spoke with Singh over the phone. Singh told CS-1 that Singh had more checks for CS-1. CS-1 asked Singh when the storage fees measure was scheduled to go on the agenda. Singh asked CS-1 to call the City manager of Huntington Park and ask him to put the matter on the agenda. CS-1 and Singh then scheduled a meeting that night.” (Id.) At the January 2, 2014 meeting, “CS-1” and Singh had the following exchange, CS-1: Yeah, I just wanted to follow up on that and see how, how that’s coming along. As far as what we agreed to, to to $5000, and I would support you so you can get your item approved…. SINGH: Yeah, yeah, I know, I brought it, yeah. CS-1: I cashed them. SINGH: They are right here actually…. Keep a little bit of push, so maybe what I need is a little bit of a favor from you, talk to the chief and say, ‘hey,’ you know, ‘there are a lot of public safety complaints.’….” (Id.)
In Opposition, Plaintiff proffers the Declarations of Sigrid Lopez and Jimmy Sandhu, to support its contention that Mr. Singh’s offers to “help” Mr. Amezquita were not made in exchange for Mr. Amezquita’s votes or support on any measures or policies. As indicated below, the City’s evidentiary objections are mostly sustained—the testimony provided by Mr. Lopez and Mr. Sandhu with respect to their opinions regarding what Mr. Singh’s purpose was behind any campaign contributions constitute inadmissible hearsay.
Plaintiff has failed to raise a triable issue of material fact with respect to Defendant’s excused nonperformance. As such, the City’s motion for summary adjudication of the first cause of action is granted.
Second Cause of Action – Breach of the Covenant of Good Faith and Fair Dealing
The obligations imposed by the implied covenant are imposed by law to govern the manner in which the express contractual obligations must be discharged—i.e., fairly and in good faith. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 573-574.) “A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself….” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations 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.” (Id. at 1395.)
The City argues that Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing may be disregarded as superfluous as the breach of contract cause of action. In Opposition, Plaintiff simply restates that the City did not have valid grounds to terminate the Agreement. Plaintiff does not argue that the City committed any independent acts which would give rise to a breach of the implied covenant of good faith and fair dealing claim. The motion for summary adjudication of the second cause of action is granted.
Plaintiff’s Objections to the Separate Statement Plaintiff’s objections to the separate statement are somewhat misplaced, as the statement itself is not evidence, nor is counsel’s characterization of the underlying evidence cited therein. Also, Plaintiff’s objections are not in proper form (a separate document). (CRC Rule 3.1354.)
Defendants’ Evidentiary Objections
Objections to the Lopez Declaration:
Objections to the Sandhu Declaration:
Objections to the Powell Declaration: