In Ponte v. County of Calaveras, ordered published August 15, 2017, the Third District Court of Appeal affirmed both a summary judgment granted to the defendant county and an award of attorney fees to the County under Code of Civil Procedure section 1038. The plaintiff contractor alleged that he performed work on a land failure on county property under an oral agreement with a county employee. County ordinances required public contracts to be put out for bid and to contain a fixed payment. The alleged oral contract met neither criterion. The plaintiff contended he had a cause of action against the county for promissory estoppel, and that there is an emergency exception to the county's contractual requirements. He further alleged that he should not be subjected to a fee award under section 1038 because under the circumstances he believed in good faith in his claims.
The appellate court rejected these arguments. Promissory estoppel cannot be asserted against a public entity to bypass rules that require contracts to be in writing or be put out for bids, rules that reflect a public policy to preclude oral contracts or other exposures to liability, including claims of promissory estoppel. The plaintiff was unable to identify any authority supporting his argument that emergencies provide an exception to this rule, or that private parties may declare a public emergency. Nor was this an exceptional case that would warrant applying estoppel against a public entity in the interests of justice, since applying estoppel would undermine the public contract rules set forth by ordinance, designed to prevent oral contract claims. The award of fees under section 1038 was proper, because to avoid paying fees under section 1038 when a public entity wins summary judgment and moves for fees, a plaintiff must show that the action was brought or continued with both subjective good faith and objective reasonable cause. The plaintiff argued that he believed in good faith that he should be paid for his work. But he failed to show that any reasonable attorney would have thought his claim tenable. He therefore failed to show objective reasonable cause.
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