Case Name: Jeffrey Bodin, et al. v. County of Santa Clara, et al.

Case No.: 114CV268728

The County of Santa Clara’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Factual and Procedural Background

Defendant County of Santa Clara (“County”) owns and operates the South County Airport of Santa Clara County, also called the San Martin Airport (“Airport”). (First Amended Complaint [“FAC”] at ¶ 14.) Defendant County published rules and regulations which set forth the procedure for approval of use of the Airport for skydiving onto the Airport. (Id. at ¶ 15.) There was no requirement for approval of use of the Airport for skydiving onto the Airport from any County official or entity other than the County Director of Airports. (Id. at ¶ 17.)

On April 3, 2009, plaintiffs Jeffrey Bodin (“Bodin”) and Garlic City Skydiving, LLC (collectively, “Plaintiffs”) met with Carl Honaker (“Director”), the County Director of Airports, and applied for approval to land customer skydivers on a drop zone/ landing area on the Airport and to select an appropriate site on the Airport from which to run the skydiving business, do training, and repack parachutes. (FAC at ¶ 18.)

During the months of April and May 2009, County told Plaintiffs that skydiving could not be conducted safely at the Airport and would require approval from the Federal Aviation Administration (“FAA”) before County would consider the proposal. (FAC at ¶¶ 19-20.) During the same time period, County refused to rent space to Plaintiffs at the Airport because it would compete with the established fixed base operator; refused to allow skydiving at the Airport because it was not in the Airport master plan; and refused to consider renting a specific building on the Airport for Plaintiffs’ office even though the building was being used for non-aviation activities and the lease had expired. (Id. at ¶¶ 21-23.)

Due to County’s refusal to allow skydiving, Plaintiffs filed a 49 CFR 13 Complaint with the FAA on May 28, 2009. (FAC at ¶ 24.) After County failed to respond to the 49 CFR 13 Complaint, the FAA informed County on August 17, 2009 that it must allow Plaintiffs access to the Airport for skydiving operations. (Id. at ¶ 26.)

After August 17, 2009, the FAA reopened Plaintiffs’ 49 CFR 13 Complaint at which time County responded by requesting the FAA conduct a Safety and Airspace Study to determine whether skydiving could be conducted safely at Airport. (FAC at ¶¶ 27-28.) The FAA conducted the study and released its report (dated December 9, 2009) in February 2010 concluding skydiving could be safely conducted at the Airport under specific conditions. (Id. at ¶¶ 28-30.)

In June 2010, the Director said Plaintiffs’ permit for Airport access would not be approved by him, but rather by the Board of Supervisors. (FAC at ¶ 31.) The Director assured Plaintiffs full approval was expected after the June 8, 2010 meeting of the County Board of Supervisors. (Id. at ¶ 32.) In reliance, Plaintiffs entered into a sublease for office space and a hangar lease at the Airport. (Id. at ¶ 33.) Approval of Plaintiffs’ skydiving permit did not make the agenda for the June 2010 County Board of Supervisors’ meeting. (Id. at ¶ 34.) On June 23, 2010, Plaintiffs received notice that the Office of County Counsel had become involved in Plaintiffs’ skydiving permit application. (Id. at ¶ 36.)

In July 2010, the FAA advised County that delay in approval of Plaintiffs’ skydiving permit amounted to denial of Airport access. (FAC at ¶ 37.) On August 13, 2010, the County’s Director of Roads and Airports Department sent Plaintiffs a letter stating County was going to reject the skydiving application solely on the basis of safety. (Id. at ¶ 38.) The letter made no reference to the FAA’s safety findings. (Id. at ¶ 39.)

At the August 24, 2010 County Board of Supervisors’ meeting, the Board of Supervisors denied Plaintiffs’ skydiving permit application on the basis of safety. (FAC at ¶ 40.) On August 25, 2010, the FAA informed County that by denying approval for skydiving, County was in violation of the grant assurances it signed and the FAA gave County 30 days to comply. (Id. at ¶ 41.) The FAA further told County that its purported safety reasons for denial were without basis and County’s delays were a tactic to deny skydiving at the Airport. (Id. at ¶ 42.)

On September 22, 2010, County responded to the FAA rejecting the FAA’s conclusion that County was in violation of the grant assurances. (FAC at ¶ 44.) The FAA conducted a second more extensive safety study that included Regional Flight Standards and Air Traffic Control. (Id. at ¶ 45.)

On April 4, 2011, the FAA sent County a letter stating that skydiving could be performed safely at the Airport based on its most recent safety study and directed County to send its “implementation plan and schedule for negotiating reasonable operating terms for skydiving to commence within the next 30 days.” (FAC at ¶ 46.) On May 2, 2011, County sent the FAA a letter refusing to comply with the FAA’s directive. (Id. at ¶ 47.)

On June 14, 2011, Plaintiffs filed a formal complaint against the County with the FAA. (FAC at ¶ 48.) After extensive briefing, the Director’s Determination of the FAA was issued on December 19, 2011 finding County was in violation of federal Grant Assurance 22, Economic Discrimination, of the prescribed sponsor assurances which implements the provisions of 49 USC §47107(a)(1) through (6). (Id. at ¶ 50.)

On January 20, 2012, County filed an appeal of the Director’s Determination with the FAA Associate Administrator for Airports in Washington, D.C. (FAC at ¶ 53.) On August 12, 2013, the FAA Associate Administrator for Airports rendered her final decision confirming County was in violation of federal Grant Assurance 22. (Id. at ¶ 54.) County had 60 days within which to file an appeal of the FAA Associate Administrator’s final decision to the United States Court of Appeals, but County failed to do so. (Id. at ¶¶ 55-56.) County has not taken the action required by the FAA Director to negotiate in good faith with Plaintiffs to provide parachute-related commercial aeronautical services at the Airport and has not issued Plaintiffs a skydiving permit. (Id. at ¶¶ 57-58.)

On February 8, 2016, Plaintiffs filed the operative FAC asserting causes of action for: (1) Breach of Contract – Third Party Beneficiary; (2) Intentional Interference with Prospective Economic Advantage; (3) Negligent Interference with Prospective Economic Advantage; (4) Breach of Mandatory Duty; and (5) Injunctive Relief.

I. Procedural violation.

As a preliminary matter, the court notes that Plaintiffs’ memorandum of points and authorities exceeds the page limitations by seven pages. California Rules of Court, rule 3.1113, subdivision (d) states, in relevant part, “In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages.” Plaintiffs’ memoranda of points and authorities is 27 pages in length. Unlike County, Plaintiffs did not seek leave in advance from this court for a page extension as permitted by California Rules of Court, rule 3.113, subdivision (e).

“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, rule 3.1113, subd. (g).) A court may, in its discretion, refuse to consider a late-filed paper but must indicate so in the minutes or in the order. (Cal. Rules of Court, rule 3.1300, subd. (d).) Plaintiffs are hereby admonished for this procedural violation. However, the court will consider the merits as there is minimal prejudice.

II. Evidentiary objections.

In opposition, Plaintiffs filed objections to evidence submitted in support of defendant’s motion for summary judgment and alternatively motion for summary adjudication. To the extent the court relied on County’s evidence in ruling, Plaintiffs’ evidentiary objections thereto are overruled. The court declines to rule on any of Plaintiffs’ other evidentiary objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)

III. Defendant County’s motion for summary adjudication is GRANTED.

A. Timeliness.

The California Tort Claims Act (“Act”) (Gov. Code., § 810 et seq.) governs actions against public entities and public employees. “Under the Act, no person may sue a public entity or public employee for ‘money or damages’ unless a timely written claim has been presented to and denied by the public entity.” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.) “As a general statutory requirement, subject to certain exceptions, an action for “money or damages” may not be maintained against the “state” or a “public entity” unless a written claim has first been timely presented to the defendant and rejected in whole or in part.” (Van Alstyne, CALIFORNIA GOVERNMENT TORT LIABILITY PRACTICE (4th ed. 2007) §5.5, p. 173 citing Govt. Code, §§905, 905.2, 945.4.)

“A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented as provided in Article 2 (commencing with Section 915) not later than one year after the accrual of the cause of action.” (Gov. Code, §911.2, subd. (a).)

“For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon.” (Gov. Code, §901.)

1. First Cause of Action – Breach of Contract.

“[A] cause of action for breach of contract ordinarily accrues at the time of breach regardless of whether any substantial damage is apparent or ascertainable.” (Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 246; see also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 664 [“A cause of action for breach of contract ordinarily accrues at the time of breach, … regardless whether any damage is apparent or whether the injured party is aware of his or her right to sue.”].) County takes a more cautious approach by arguing that a breach of contract cause of action does not accrue until there is both a breach and damage suffered by the plaintiff. “Traditionally, a claim accrues when it is complete with all of its elements–those elements being wrongdoing [or breach], harm, and causation.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341; punctuation and citations omitted.)

In the first cause of action, Plaintiffs assert a breach of contract. Plaintiffs identify Grant Assurance 22 as the agreement that the County breached. During deposition, plaintiff Bodin testified that the first cause of action is based on the County’s alleged breach of a contract with the FAA. On May 28, 2009, Plaintiffs filed a complaint with the FAA alleging violation of Grant Assurance 22 by the County. The complaint to the FAA states, in part, “County is in violation of the Grant Assurances, specifically section 22(a), 22(i) [Economic Nondiscrimination] and 23 [Exclusive Rights].” On August 25, 2010, the FAA sent notice informing the County that it breached Grant Assurance 22 “by denying approval for skydiving.” Plaintiffs “sent correspondence to the County, on August 31, 2010, offering to work with the County to get it into compliance with the grant assurances.”

In response to discovery, Plaintiffs claim they incurred damages of “$7,152,100 over the last [eight] years” as a result of County’s conduct. Plaintiffs itemized the amount for each of the years from 2010 through 2017. County contends the first cause of action is barred because Plaintiffs did not file a governmental claim until March 17, 2014. On April 7, 2014, the County returned the claim as untimely.

In opposition, Plaintiffs raise the doctrine of equitable tolling. Equitable tolling applies “occasionally and in special situations” “to soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.” (Addison v. State of California (1978) 21 Cal.3d 313, 319; see also McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) Equitable tolling requires “a showing of three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’ [Citations.]” (McDonald, supra, 45 Cal.4th at p. 102.)

The doctrine “applies when an injured person has several legal remedies and, reasonably and in good faith, pursues one.” (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 923 (Collier); internal punctuation omitted.) “The timely notice requirement essentially means that the first claim must have been filed within the statutory period. Furthermore the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim. Generally this means that the defendant in the first claim is the same one being sued in the second. As an example, a workers’ compensation claim equitably tolls a personal injury action against that same employer for injuries sustained in the same incident. But under ordinary circumstances that workers’ compensation claim would not equitably toll a personal injury action against a third party who might also be liable for the injury.” (Collier, supra, 142 Cal.App.3d at pp. 924 – 925.) “The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second. Yet the two ‘causes of action’ need not be absolutely identical. [Footnote.] The critical question is whether notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim.” (Id. at p. 925.)

Here, Plaintiffs contend the equitable tolling doctrine applies here where they first filed an informal complaint with the FAA on May 28, 2009 after County refused to rent space to Plaintiffs at the Airport, refused to allow skydiving at the airport, and refused to consider renting a specific building on the Airport. The FAA gave notice of the complaint to the County, but County did not respond, and the FAA sent correspondence to County on August 17, 2009 stating FAA found no reason for County to refuse Plaintiffs’ access to conduct skydiving operations at the Airport and that failure to adhere to the FAA’s determination could put County in noncompliance with federal grant assurances. Plaintiffs essentially proffer evidence mirroring the allegations of the FAC which detail Plaintiffs’ efforts with the FAA to compel County to allow Plaintiffs to conduct skydiving operations at the airport culminating with an FAA determination on August 12, 2013 confirming County’s violation of Grant Assurance 22, a determination which County did not appeal. The facts presented by Plaintiffs are sufficient to invoke the doctrine of equitable tolling, thereby creating a triable issue of material fact with regard to whether Plaintiffs’ first cause of action is barred for failure to present a timely claim.

2. Second through Fourth Causes of Action.

According to County, Plaintiffs’ second through fourth causes of action assert tort claims and, as such, Plaintiffs were required to present these claims “not later than six months after the accrual of the cause of action.” (Gov. Code, §911.2, subd. (a).) In opposition, Plaintiffs contend the six month rule applies only to claims “relating to a cause of action for death or injury to person or to personal property or growing crops,” which is not alleged here. Instead, Plaintiffs assert the claims which don’t involve “death or injury to person or to personal property or growing crops” had to be brought no later than one year after their accrual. The court agrees with Plaintiffs on this point.

County again proffers evidence that, in response to discovery, Plaintiffs claim they incurred damages of “$7,152,100 over the last [eight] years” as a result of County’s conduct. Plaintiffs itemized the amount for each of the years from 2010 through 2017. Plaintiffs did not file a governmental claim until March 17, 2014. County contends the second through fourth causes of action is barred because the resulting damage to Plaintiffs first occurred more than six months prior to March 17, 2014. Even if the court applies a one year rule, County’s position is that the second through fourth causes of action all accrued more than one year prior to March 17, 2014 in view of the fact that Plaintiffs first suffered injury in 2010.

Again, Plaintiffs invoke the doctrine of equitable tolling. Although the court is skeptical whether the claims asserted now in the second through fourth causes of action are sufficiently “identical or at least so similar that the defendant’s investigation of the first claim will put him in a position to fairly defend the second,” the court is satisfied that Plaintiffs have at least presented enough evidence to this court to at least create a triable issue of material fact with regard to whether Plaintiffs’ second through fourth causes of action are barred for failure to present a timely claim. (Collier, supra, 142 Cal.App.3d at p. 925.)

3. Fifth Cause of Action.

County argues that since Plaintiffs’ fifth cause of action for injunctive relief is ancillary to their claim for damages, the same claims statutes apply and this fifth cause of action is similarly barred.

For the same reasons discussed above, the court finds a triable issue of material fact exists with regard to whether Plaintiffs’ fifth cause of action is barred for failure to present a timely claim.

B. First Cause of Action – Breach of Contract.

County separately moves for summary adjudication of the Plaintiffs’ first cause of action for breach of contract – third party beneficiary.

1. Private right of action.

Initially, County relies on, among others, the decision in Four T’s, Inc. v. Little Rock Mun. Airport Com’n (8th Cir. 1997) 108 F.3d 909, 915 (Four T’s) where the court held that “a private right of action is not available under 49 U.S.C. § 47107 of the Airport and Airway Improvement Act of 1982 (AAIA),” as no such private right of action is implied despite the fact that the AAIA requires assurances against discrimination.

In opposition, Plaintiffs contend Four T’s is readily distinguishable because it addresses a statutory claim brought specifically under the AAIA. Here, Plaintiffs’ first cause of action is not a statutory claim brought specifically under the AAIA. The court agrees with Plaintiffs, for that reason, that Four T’s and the other decisions cited by County are inapposite and not a valid basis for granting summary adjudication of this first cause of action.

2. Intended third party beneficiary.

Civil Code section 1559 states, “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” In other words, “A person who is not a party to a contract may nonetheless have certain rights thereunder, and may sue to enforce those rights, where the contract is made expressly for her benefit.” (Mercury Casualty Co. v. Maloney (2002) 113 Cal.App.4th 799, 802 (Mercury).) “[A] third party beneficiary’s rights under the contract are not based on the existence of an actual contractual relationship between the parties but on the law’s recognition that the acts of the contracting parties created a duty and established privity between the promisor and the third party beneficiary with respect to the obligation on which the action is founded.” (Mercury, supra, 113 Cal.App.4th at p. 802.)

As noted by this court in previously ruling on County’s demurrer, “The acceptance of a federal grant under terms and conditions authorized by Congress creates a binding contract.” (McDonald v. Stockton Met. Transit Dist. (1973) 36 Cal.App.3d 436, 441; see also 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §1009, p. 1100 citing same.) Admittedly, County accepted federal grants for the Airport. (See p. 1, lines 5 – 10 of County’s Memorandum of Points & Authorities.) Allegedly, County accepted such funds on the condition that the airport will be available for public use on reasonable conditions and without unjust discrimination. (Complaint, ¶¶61 – 64.)”

Regarding the intended beneficiary theory:

A third party should not be permitted to enforce covenants made not for his benefit, but rather to others. He is not a contracting party; his right to performance is predicated on the contracting parties’ intent to benefit him. The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement. The contracting parties must have intended to confer a benefit on the third party. It is not necessary for the third party to be specifically named in the contract, but such a party bears the burden of proving that the promise he seeks to enforce was actually made to him personally or to a class of which he is a member. In making that determination, the court must read the contract as a whole in light of the circumstances under which it was entered.

…

The fact that the contract, if carried out to its terms, would inure to the third party’s benefit, is insufficient to entitle him or her to demand enforcement. [Citation.] However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. [Citation.] Whether a third party is an intended beneficiary to the contract involves construction of the parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered. [Citation.]

(Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348 – 349.)

In Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233, the court held, “Generally, it is a question of fact whether a particular third person is an intended beneficiary of a contract. [Citation.] However, where, as here, the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the circumstances and negotiations of the parties in making the contract, the issue becomes one of law that we resolve independently.” (Emphasis added.)

In moving for summary adjudication, County contends Plaintiffs are not intended third party beneficiaries of Grant Assurance 22 which is the agreement that Plaintiffs allege County breached. Grant Assurance 22 does not explicitly identify Plaintiffs as beneficiaries. County did not promise to issue permits to conduct sky diving activities at the airport to Plaintiffs or any other parties. Plaintiff Bodin testified that he was a beneficiary of the contract between the FAA and County by virtue of being a taxpayer.

County contends any benefit Plaintiffs derived as being taxpayers is merely incidental, and not intended.

“ ‘The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract.’ ” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022, 90 Cal.Rptr.3d 453.) “Under the intent test, ‘it is not enough that the third party would incidentally have benefited from performance.’ [Citation.] ‘The circumstance that a literal contract interpretation would result in a benefit to the third party is not enough to entitle that party to demand enforcement. The contracting parties must have intended to confer a benefit on the third party.’ [Citation.] ‘The effect of the section is to exclude enforcement by persons who are only incidentally or remotely benefited.’ [Citation.] [¶] On the other hand, ‘the third person need not be named or identified individually to be an express beneficiary.’ [Citations.] ‘A third party may enforce a contract where he shows that he is a member of a class of persons for whose benefit it was made.’ [Citations.]” (Id. at pp. 1022–1023, 90 Cal.Rptr.3d 453.)

…

Of course, any contract entered into by the state or its many subdivisions would presumably be for the benefit of the state’s residents and taxpayers, just as a contract entered into by a corporation would presumably be for the benefit of the corporation’s shareholders or a contract entered into by a club or association would be for the benefit of the association’s members. Any income derived by the state from a contract it enters into would inure to the benefit of the state’s residents and taxpayers. Likewise, a contract whereby the state agrees to pay a construction company to erect a bridge would benefit the traveling public. However, that does not mean each member of the public may sue to enforce that contract. The fact that members of the public derive a benefit from the contract does not make them intended beneficiaries of the contract within the meaning of Civil Code section 1559. Such benefit is merely incidental to the contract.

(Unite Here Local 30 v. Department of Parks and Recreation (2011) 194 Cal.App.4th 1200, 1214–1215 (Unite); emphasis added.)

County contends three courts have reached the conclusion that Grant Assurance 22 does not confer an intended benefit to any third parties. Two of the decisions cited by County are federal trial court decisions. Initially, the court would note that, “A written trial court ruling has no precedential value.” (Santa Ana Hospital Med. Ctr. v. Belshe (1997) 56 Cal.App.4th 819, 831.)

In Santa Monica Airport Ass’n v. City of Santa Monica (C.D. Cal. 1979) 481 F.Supp. 927, 946 (Santa Monica), the court simply wrote, “I do not agree with the Plaintiffs that either the three Plaintiff Associations, or any individual members thereof who use the airport or lease space at it, may enforce the grant agreements as third-party beneficiaries. I do not find any of them to have the status of third-party beneficiary. I agree with the position of the FAA as amicus on this issue that they are not third party beneficiaries, and I find accordingly.” This court gives little weight to the Santa Monica decision which lacks any reasoned analysis.

County also cites Bodin v. County of Santa Clara (N.D. Cal., Sept. 15, 2015, No. 5:14-CV-04158-EJD) 2015 WL 5440822, at *5, where the court wrote:

The FAA did not order the County to grant Plaintiffs access to the San Martin Airport for skydiving activities, despite Plaintiff’s allegation in the Complaint and present argument suggesting as much. [Footnote.] Instead, the FAA found the County in violation of its federal grant obligations and directed it to undertake certain corrective actions in order to continue receiving discretionary grant funds, including “negotiat[ing] in good faith with those entities desiring to provide parachute-related commercial aeronautical services.” [Citation.] That describes something different than a mandatory conferral of a benefit. At the most, the FAA’s decision may impose on the County an obligation to engage in a process that could ultimately result in granting Plaintiffs access to the San Martin Airport. [Footnote.] At the least, it gives the County the option of precluding all skydiving activities and foregoing further discretionary grants.

In issuing this ruling, the federal trial court ruled upon the County’s motion to dismiss Plaintiffs’ federal claim for civil rights violation pursuant to 42 U.S.C. §1983 which was based on the Due Process Clause of the 14th Amendment. “ ‘The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law.” ’ Newman v. Sathyavaglswaran, 287 F.3d 786, 789 (9th Cir.2002) (quoting U.S. Const. amend. XIV, § 1). Thus, ‘[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in “property” or “liberty.” ’ ” (Bodin v. County of Santa Clara (N.D. Cal., Sept. 15, 2015, No. 5:14-CV-04158-EJD) 2015 WL 5440822, at *4.) Thus, the court was addressing whether Plaintiffs had a protectable property interest, not whether Plaintiffs were intended third party beneficiaries of Grant Assurance 22. “An opinion is not authority for a point not raised, considered, or resolved therein.” (Styne v. Stevens (2001) 26 Cal.4th 42, 57.)

The third decision relied upon by County is City and County of San Francisco v. Western Air Lines, Inc. (1962) 204 Cal.App.2d 105 (Western). In Western, the City of San Francisco (City) sued defendant Western Air Lines, Inc. (WAL) to recover increased rates for common use facilities at the San Francisco International Airport. WAL paid those increased rates under protest and brought a counterclaim to recover the amounts paid on the theory that the Federal Airport Act and various assurances given by the City upon the receipt of federal aid for its airport preclude the exercise on the part of the City of any power to discriminate among air carriers. The trial court rejected WAL’s theory and the ruling was affirmed by the First District Court of Appeal:

None of the documents under consideration confers on Western the rights of a third-party beneficiary. The various contracts and assurances created benefits and detriments as between only two parties-the United States and the City. Nothing in them shows any intent of the contracting parties to confer any benefit directly and expressly upon air carriers such as the defendant. It is true that air carriers, including Western, may be incidentally benefited by City’s assurances in respect to nondiscriminatory treatment at the airport. They may also be incidentally benefited by the fact that, through federal aid, a public airport is improved with longer runways, brighter beacons, or larger loading ramps, or by the fact a new public airport is provided for a community without one. The various documents and agreements were part of a federal aid program directed to the promoting of a national transportation system. Provisions in such agreements, including the nondiscrimination clauses, were intended to advance such federal aims and not for the benefit of those who might be affected by the sponsor’s failure to perform.

…

Where a contract incidentally benefits a third person but is not expressly made for his benefit, he cannot recover thereon. [Citations.]” (P. 262.) Moreover, “[a] promisor bound to the United States … by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members to give compensation for the injurious consequences of performing or attempting to perform it, or of failing to do so, unless, … an intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences. …” [Citations.]

(Western, supra, 204 Cal.App.2d at pp. 120 – 121.)

In opposition, Plaintiffs rely on a federal trial court decision of their own but principally rely upon City of Inglewood v. City of Los Angeles (9th Cir. 1971) 451 F.2d 948, 954 (Inglewood). The plaintiffs in Inglewood alleged defendant City of Los Angeles, through its ownership and operation of the Los Angeles International Airport, caused the plaintiffs injuries and damage as a result of noise in operating the airport. The trial court dismissed the Inglewood plaintiffs’ claim that defendant violated 49 U.S.C. sec. 1108(d) (3) [subsequently amended to 49 U.S.C. sec. 1716(c) (3)] and 49 U.S.C. sec. 1110(4) [subsequently amended to 49 U.S.C. sec. 1718(4)] on the grounds that plaintiffs could not enforce grant agreements made between Los Angeles and the Federal Aviation Administration. The appellate court reversed this particular ruling.

Section 1716(c)(3) stated, “No airport development project may be approved by the Secretary unless he is satisfied that fair consideration has been given to the interest of communities in or near which the project may be located.” Section 1718(4) stated, “As a condition precedent to his approval of an airport development project under this subchapter, the Secretary shall receive assurances in writing, satisfactory to him, that–(4) appropriate action, including the adoption of zoning laws, has been or will be taken, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations, including landing and takeoff of aircraft.”

In holding that the plaintiffs had Article III federal court standing, the Inglewood court rejected the City of Los Angeles’ reliance on Western.

“We note that in [Western] the plaintiffs were airline companies and the provisions of the Federal Airport Act they were attempting to enforce were not the provisions plaintiffs are attempting to enforce in this case. [¶] While we express no opinion as to the merits of those cases, we do not find them controlling in this case. If Los Angeles made the assurances required by sec. 1716(c) (3) and sec. 1718(4) in applying for various grant agreements, then Inglewood must certainly be included within the category of intended beneficiaries of those assurances. Congress had some purpose in enacting these two sections of Title 49. It is not to Los Angeles’ benefit to be required to give the Secretary those assurances; nor are the assurances of any independent benefit to the Secretary. The Secretary merely receives them for the benefit of, and in the place of, the surrounding communities and residents of the area. Any other interpretation of sec. 1716(c) (3) and sec. 1718(4) deprives them of any meaning or effect.”

(Inglewood, supra, 451 F.2d at p. 956.)

Here, Plaintiffs implore this court to adopt the same reasoning as the Inglewood court. According to Plaintiffs, the assurances made in Grant Assurance 22 (non-discrimination with regard to types, kinds, and classes of aeronautical activities) are not for the benefit of either the FAA or the County so they must be for the benefit of users or potential users of the airport like Plaintiffs. Plaintiffs contend that to construe the grant assurances otherwise would be to render the grant assurances meaningless.

While the grant assurances in Western differ from the grant assurances at issue here, this court finds them to be more analogous than the grant assurances in Inglewood. The language of the grant assurances in Inglewood are expressly intended to benefit the communities near the airport (“communities in or near which the project may be located”/ “land adjacent to or in the immediate vicinity of the airport”) whereas the grant assurances at issue here benefit the public at large. Like Unite or Western, Plaintiffs here are merely incidental beneficiaries of the grant assurances between the FAA and County.

Moreover, the Western decision remains valid binding precedent issued by a California Court of Appeal whereas Inglewood is a federal appellate court decision. Although entitled to great weight, this court is not bound to follow Inglewood. (See Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97—“although not binding, we give great weight to federal appellate court decisions.”)

Here, there is no factual dispute and thus, whether Plaintiffs are intended beneficiaries of the grant assurance is an issue of law. In view of the language of the grant assurances and the relevant legal authority, it is this court’s opinion that Plaintiffs are, at best, incidental beneficiaries and not intended third party beneficiaries of the grant assurances. “Where a contract incidentally benefits a third person but is not expressly made for his benefit, he cannot recover thereon.” (City and County of San Francisco v. Western Air Lines, Inc. (1962) 204 Cal.App.2d 105, 121.) Accordingly, County’s alternative motion for summary adjudication of the first cause of action in Plaintiffs’ FAC is GRANTED.

C. Second and Third Causes of Action – Intentional/ Negligent Interference with Prospective Economic Advantage.

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512; see also CACI, No. 2202.)

“The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786; see also CACI, No. 2204.)

County moves for summary adjudication of the second and third causes of action on several grounds, but the one the court finds compelling is County’s argument that Plaintiffs cannot establish the existence of some economic relationship with a third party that contains the probability of future economic benefit to Plaintiffs.

County proffers evidence that Plaintiffs (Bodin and Garlic City Skydiving, LLC) have never operated a skydiving business. Plaintiff Bodin formed Garlic City Skydiving, Inc. (“GCSI”) in 2010. GCSI is not a party to this action. Plaintiff Bodin changed the name of GCSI to Bodin Enterprises, Inc. GCSI never operated a skydiving business. For tax reasons, plaintiff Bodin attributed about “a thousand dollars” that he earned as a contract tandem jumper to GCSI. Plaintiffs (Bodin and Garlic City Skydiving, LLC) do not own a plane and never actually leased a plane for a skydiving business. Plaintiffs (Bodin and Garlic City Skydiving, LLC) do not have economic relationships that generated revenue. Plaintiff Bodin testified that “the business never got up and running. That is a fair statement.”

In opposition, Plaintiffs assert they did have non-contractual relationships with third parties with the probability of future economic benefit. Plaintiffs direct the court to paragraph 9 of plaintiff Bodin’s declaration wherein he states, “In reliance on these assurances (by Director stating full approval for Plaintiffs’ skydiving operations was expected after the June 8, 2010, meeting of the County Supervisors), I subleased space and a hangar at the Airport from a third party and incurred other substantial expenses on behalf of the skydiving business. … Attached as Exhibit H are true and correct copies of the business’ profit and loss statements for 2010 through 2013 and the business’ checking account statements, both of which show substantial expenses incurred in starting the business.” Plaintiffs’ evidence does not present a triable issue of material fact. Plaintiffs’ evidence establishes that Bodin, on behalf of Garlic City Skydiving, LLC, entered into a contractual relationship (lease) and incurred other expenses. Absent evidence of a business, a lease is merely an expense and does not provide Plaintiffs with any probable future economic benefit or advantage. The profit and loss statement submitted by Plaintiffs show year over year loss with negligible income in contrast to significant expenses. There is nothing to demonstrate the existence of any economic relationship with a third party that contains a probability of future economic benefit.

Plaintiffs also refer generally to their disputed material facts, numbers 1 through 33. Of those 33 facts, the only citation the court found relevant is fact number 12 which substantially mirrors Bodin’s declaration above. Plaintiffs refer to pages 2 through 11 of Exhibit K which is purportedly the December 19, 2011 FAA Director’s Determination. Plaintiffs fail to direct the court to any specific fact found in Exhibit K which would present a triable issue of material fact. Finally, Plaintiffs refer to pages 39 – 47 of an Exhibit L but the evidence submitted by Plaintiffs does not contain an Exhibit L.

Accordingly, County’s alternative motion for summary adjudication of the second and third causes of action in Plaintiffs’ FAC is GRANTED.

D. Fourth Cause of Action – Breach of Mandatory Duty.

“Except as otherwise provided by statute[,] [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, §815, subd. (a).) “One of the provisions ‘otherwise’ creating an exception to the general rule of immunity is Government Code section 815.6, which provides: ‘Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.’” (State of California v. Superior Court (Perry) (1984) 150 Cal.App.3d 848, 854 (Perry).)

“Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.” (Perry, supra, 150 Cal.App.3d at p. 854; citations omitted.)

County moves for summary adjudication of this fourth cause of action on several grounds. One argument advanced by the County is that this fourth cause of action fails because Plaintiffs fail to identify an enactment which imposes a mandatory duty. “Whether an enactment is intended to impose a mandatory duty, as opposed to a mere obligation to perform a discretionary function, is a question of law for the court.” (Corona v. State of California (2009) 178 Cal.App.4th 723, 728.) “An enactment creates a mandatory duty if it requires a public agency to take a particular action.” (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639.) For purposes of Government Code section 815.6, the term “enactment” means “a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.)

In the fourth cause of action, Plaintiffs allege County “violated the statutes alleged herein, among others, that imposed mandatory duties on” County. (FAC, ¶85.) “A plaintiff asserting liability under Government Code section 815.6 ‘must specifically allege the applicable statute or regulation.’ [Citation.]” (Brenneman v. State of California (1989) 208 Cal.App.3d 812, 817; see also Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) An enactment includes a “statute” and Plaintiffs allege County violated the “statutes alleged herein.” In looking to other allegations of the FAC, Plaintiffs cite 49 USC §47101, et seq. and 49 USC §47107, et seq., specifically. (See FAC, ¶¶60, 61, and 63.)

In opposition, Plaintiffs cite specifically to 49 USC §47101, subdivision (d) which states, “Each airport and airway program should be carried out consistently with section 40101(a), (b), (d), and (f) of this title to foster competition, prevent unfair methods of competition in air transportation, maintain essential air transportation, and prevent unjust and discriminatory practices, including as the practices may be applied between categories and classes of aircraft.” This particular statute, when read in conjunction with section 40101, imposes a duty on the United States Secretary of Transportation and/or the Administrator of the Federal Aviation Administration, not upon County. This is evident when reading the particular citations to section 40101 which state, for example, “In carrying out subpart II of this part and those provisions of subpart IV applicable in carrying out subpart II, the Secretary of Transportation shall…” (49 USC §40101, subd. (a); emphasis added.) Moreover, the plain language of 49 USC §47101 is, on its face, written in the permissive (“should be”) rather than the mandatory.

Likewise, Plaintiffs reliance on 49 USC §47104, subdivision (a) and 49 USC §47107, subdivision (a)(1) is misplaced as that statute is also written in the permissive and imposes a duty, if any, on the Secretary of Transportation.

Plaintiffs also rely upon Grant Assurance 22 made by the County as a condition precedent to receipt of airport development assistance. By Plaintiffs’ own allegation, however, the grant assurance “becomes a binding contractual obligation between the airport sponsor and the Federal government.” (FAC, ¶61.) Plaintiffs themselves further acknowledge this point in opposition by citing Flamingo Exp., Inc. v. F.A.A. (6th Cir. 2008) 536 F.3d 561, 563 where the court wrote, “The Administrator explained that ‘[u]pon acceptance of an AIP grant, the assurances become binding obligations between the airport sponsor and the Federal government.’ Federal law, in turn, gives the Secretary of Transportation the authority to require that airport owners comply with these assurances.” As indicated above, an “enactment” means “a constitutional provision, statute, charter provision, ordinance or regulation.” (Gov. Code, § 810.6.) A contractual obligation, even if enforceable under federal law, does not qualify as an “enactment.”

Plaintiffs also rely upon New York Airlines, Inc. v. Dukes County (D. Mass. 1985) 623 F.Supp. 1435, 1447 (New York Airlines) where the court wrote, “The statute, moreover, uses mandatory language. Airport operators are required to insure that the airport ‘will be available for public use on fair and reasonable terms and without unjust discrimination….’ 49 U.S.C. § 2210(a)(1). Each air carrier ‘shall be subject to … nondiscriminatory and substantially comparable’ terms and conditions. Id. The statute further provides ‘there will be no exclusive right’ for the use of airport facilities. 49 U.S.C. § 2210(a)(2). The mandatory character of the obligation created by the statute indicates that the section was not intended as a precatory expression of congressional preference.” Even if this court found New York Airlines to be binding precedent, the decision does not address the County’s position above which is that the grant assurances, even if mandatory, are not “enactments” as that term is defined by Government Code section 810.6.

Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (2010) 191 Cal.App.4th 435 (Mammoth) does not save Plaintiffs’ fourth cause of action. Mammoth did not hold that grant assurances that the Town of Mammoth Lakes made to the FAA are “rules” for purposes of Government Code section 815.6. Instead, the Mammoth court considered whether parties to a development agreement intended for grant assurances to be considered “rules” as that term was used in a development agreement. The Mammoth court concluded, “there is no evidence the parties intended to include the Town’s grant assurances in the term “rules” in [the development agreement].” (Mammoth, supra, 191 Cal.App.4th at p. 460.) Mammoth does not support a conclusion that the grant assurances here qualify as an “enactment” as defined by Government Code section 810.6.

The court agrees with County that Plaintiffs fail to identify an enactment which impose a mandatory duty. Accordingly, County’s alternative motion for summary adjudication of the fourth cause of action in Plaintiffs’ FAC is GRANTED.

E. Fifth Cause of Action – Injunctive Relief.

“Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Dept. of Transportation (1994) 29 Cal.App.4th 1280, 1293.) “To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law.” (Id. at p. 1293; see also 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779, p. 236; see also Shell Oil v. Richter (1942) 52 Cal.App.2d 164, 168–“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.”)

In light of the court’s rulings above, there is no viable underlying cause of action to support a claim for injunctive relief. Accordingly, County’s alternative motion for summary adjudication of the fifth cause of action in Plaintiffs’ FAC is GRANTED.