Jay v. Rock, C068400

CourtCalifornia Court of Appeals
Writing for the CourtMURRAY, J.
Decision Date12 June 2019
PartiesDANFORD A. JAY et al., Plaintiffs and Appellants, v. CHRISTOPHER J. ROCK et al., Defendants and Respondents. DANFORD A. JAY, Individually and as Trustees, etc., et al., Plaintiffs and Appellants, v. THE CITY OF CHICO et al., Defendants and Respondents.
Docket NumberC071967,C068400

DANFORD A. JAY et al., Plaintiffs and Appellants,
v.
CHRISTOPHER J. ROCK et al., Defendants and Respondents.


DANFORD A. JAY, Individually and as Trustees, etc., et al., Plaintiffs and Appellants,
v.
THE CITY OF CHICO et al., Defendants and Respondents.

C068400
C071967

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)

June 12, 2019


ORDER MODIFIFYING OPINION AND DENYING PETITION FOR REHEARING AND REQUEST FOR PUBLICATION

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the nonpublished opinion filed herein on June 12, 2019, be modified as follows:

Page 2

1. On pages 3-4, at the end of footnote 2, and before the last sentence that begins with "We conclude," add at the end of that sentence, "or influenced or participated in the agreement between her parents and the City, Exhibit X."

The sentence in its entirety will now read:

We conclude the petition fails to state facts supporting that she had anything to do with the Jays' contracts, or influenced the denial of the Jays' FBO application, or influenced or participated in the agreement between her parents and the City (Exhibit X).

2. On page 30, the last sentence of the second paragraph in subsection (a), delete the name "Jays" and replace with "Rocks."

The sentence will now read:

They have not established a triable issue of fact that the Rocks, who had the lease for the ramp space, were not entitled to cordon it off.

3. On page 32, the last sentence at the last paragraph, add as footnote 21 the following, which will require renumbering of all subsequent footnotes:

The Jays filed a petition for rehearing after they requested an extension of time to file a petition for rehearing regarding the appeal of their case against the City, C071967. In making their request for an extension of time, the Jays expressly represented that they were not making a request for an extension of time regarding their case against the Rocks, C068400. They also represented that their request for an extension of time was not opposed by counsel representing the City defendants. The Rocks sent the court a letter informing the court that they had not been consulted and that they opposed the request for more time to file a petition for rehearing. We granted the Jays' request to extend time, but only as to the appeal in their case against the City defendants. In the Jays' petition for rehearing, inconsistent with their representation that their request for an extension of time related only to the appeal involving the City defendants, the Jays focus on language in the Discussion part I(B)(4)(d) relating to the summary judgment motion in the Jays' case against the Rocks. Because the Jays represented they were not requesting an extension of time to file their petition for rehearing as to that appeal and we granted their request only as the appeal involving the City defendants, we strike this portion of the petition for rehearing as untimely.

Page 3

4. On page 54, delete the last sentence which begins with "Moreover" and replace it with the following:

Thus, under the City's standing rule, the potential pecuniary losses upon which the Rocks focused, the bias in the Commission's decision they alleged, and the encroachment upon their ramp space individually and cumulatively resulted in a significantly greater effect on them than the public in general. The Rocks had standing under CMC 2.80.040 and 2.80.05(A).

5. On pages 54-55 at footnote 30, change the first sentence to read as follows:

At oral argument and again in their petition for rehearing, the Jays argued that the Rocks never mentioned the ramp encroachment as an injury when they filed their notice of appeal.

Footnote 30 in its entirety with an additional second paragraph will now read:

At oral argument and again in their petition for rehearing, the Jays argued that the Rocks never mentioned the ramp encroachment as an injury when they filed their notice of appeal. But unlike the judicial gloss placed upon section 1086 when a party seeks a writ petition in superior court that requires a plaintiff to prove injury in fact by a preponderance of the evidence, there is no requirement in CMC 2.80.040 and 2.80.050(A)for a party appealing to the Council to prove injury in fact by a preponderance of the evidence. Additionally, because the Jays never objected on standing grounds, there was no reason for the Rocks to assert injury related to the Jays' use of the ramp space the Rocks were leasing.

In their petition for rehearing, the Jays contend that Jay's statement before the Commission in which he said he "may find it necessary at many times to drive across their ramp" did not mean there would in fact be encroachment. This contention is inconsistent with their own pleadings. The Jays alleged multiple times in the petition for writ of mandate that the ramp space the City leased to the Rocks left the Jays' building landlocked, and they included a photograph in the writ petition showing that the Rock's ramp space completely surrounds their building. Based on the Jays' own pleadings, some encroachment onto the Rock's ramp space by vehicles and/or foot traffic related to the Jays' proposed FBO operation would necessarily occur.

6. On page 92, before the last paragraph, add the following paragraphs:

In their petition for rehearing, the Jays rely upon People v. Honig (1996) 48 Cal.App.4th 289, for the proposition that influence can be proved by

Page 4

circumstantial evidence. This court in Honig did say an interest can be proved by both direct and circumstantial evidence (Honig, at p. 315), but that case did not involve proof issues related to the influence/participation element of a conflict of interest claim because Honig was the person who personally made the decision to create the contracts at issue. (Id., at pp. 304, 318.) Nevertheless, we do not disagree that circumstantial evidence can establish the influence/participation element; but the facts pled here do not.
Quoting People v. Gnass (2002) 101 Cal.App.4th 1271,1294, the Jays assert, in connection with the influence/participation element, that we must "look past the individual contracts in question and consider the relationships between all the parties connected with them, either directly or indirectly, to determine if a conflict of interest exists[s]." Like in Honig, the Gnass court was discussing how the existence of an interest could be proved and not the influence/participation element. Nevertheless, we do agree that the relationship between the person alleged to have had a conflict of interest and the decisionmakers or persons who influenced the decisionmakers is a circumstance to consider. Here, no facts have been alleged showing that Ms. Rock, an assistant city attorney, was in a supervisory position over Burkland, who served as the deputy city manager and airport manager at the time Exhibit X was negotiated and executed, or Jones, the city manager. Nor have facts been alleged showing that Ms. Rock was in a hierarchal position within city government to influence Burkland or Jones at the time Exhibit X was negotiated and executed.

This modification does not change the judgment. In case No. C068400, Appellants' petition for rehearing is denied. In case No. C071967, Respondent's request for publication is denied.

FOR THE COURT:

/s/_________
RAYE, P. J.

/s/_________
ROBIE, J.

/s/_________
MURRAY, J.

Page 5

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 145202)

(Super. Ct. No. 145203)

This opinion involves appeals in two cases, consolidated for argument and disposition. In both matters, we affirm the judgments.1

Page 6

The litigation involves a dispute arising out of the City of Chico's (the City) rejection of the plaintiff Danford Jay's application to operate as a fixed base operator (FBO) at the Chico Municipal Airport (the airport). Instead of addressing the deficiencies in the application and reapplying, plaintiffs Danford Jay and Sandra Jay (collectively, the Jays) filed these two actions.

In the first appeal, the Jays appeal from summary judgment in favor of defendants Christopher Rock, Maria Rock, and their business, Northgate Aviation, Inc. (collectively, the Rocks). The Jays alleged that the Rocks interfered with several contracts the Jays asserted they had with the City regarding FBO operations at the airport. In their motion for summary judgment, the Rocks contended that the Jays failed to raise a triable issue of fact that the City breached any contract with the Jays and that the Rocks induced the breach. The trial court agreed and granted summary judgment.

On appeal, the Jays contend that (1) the trial court erred in excluding a declaration by Douglas Guillon, the Jays' predecessor in interest, and (2) the trial court erred in granting summary judgment, because they presented evidence establishing triable issues of fact, which included the Guillon declaration.

The Rocks contend that Guillon's declaration was properly excluded and that the Jays failed to supply admissible evidence to support their argument that they were successors in interest to the several contracts at issue and even if they did make this showing, the contracts do not afford the Jays the contractual rights they claim. Thus, according to the Rocks, the City did not breach any contractual duties to the Jays. The Rocks further assert that even if the Jays had the contractual rights they claim, the City did not breach any rights under the contract, nor did the Rocks do anything to induce the breach.

Page 7

We conclude that the trial court did not err in granting summary judgment because Guillon's declaration was properly excluded and the remaining evidence is insufficient to support the Jays' theory of their contractual rights and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT