Michael Leslie Productions v. City of >Los
Angeles

















Filed 6/21/12 Michael Leslie Productions v. City of Los Angeles CA2/8

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>NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.











IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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MICHAEL LESLIE PRODUCTIONS, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

B233052 (Los Angeles County Super. Ct. No. BC450270)

APPEAL
from the judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Holly E.
Kendig, Judge. Affirmed.



Roxborough,
Pomerance, Nye & Adreani, Drew E. Pomerance and Burton
E. Falk for Plaintiff and Appellant.



Carmen
A. Trutanich, City Attorney, Gary E. Geuss, Chief Assistant City Attorney,
Laurie Rittenberg and James Patrick Nollan, Assistant City Attorneys, for
Defendant and Respondent.



* *
* * * * * * *





Plaintiff
and appellant Michael Leslie Productions, Inc., dba Ready Golf Centers (Ready
Golf) appeals from the judgment of
dismissal entered by the trial court following the sustaining of the
demurrer of defendant and respondent City of Los Angeles
(City) to Ready Golf’s original complaint without leave to amend. Ready Golf contends it stated a valid claim
entitling it to relief by writ of mandate, and that even if there were defects
in its original pleading, the trial court abused its discretion in refusing
Ready Golf at least one opportunity to amend.
We affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

The
City operates seven public golf courses through its Department of Recreation
and Parks (Department): two courses at the
Sepulveda Golf Complex, two courses at Griffith
Park, the Hansen Dam golf course,
the Rancho Park
golf course, and the Woodley Lakes
golf course. Almost 500 golf carts, on
average, are in operation at the City’s golf courses on any given day. In 2007, the golf-cart concession at the
City’s golf courses was handled by a private entity, J.H. Kishi Company
(Kishi). Kishi had operated the
concession for a number of years under a written contract with the City, but that
contract expired in 2003, and Kishi continued to operate the concession
thereafter on a month-to-month basis.

In
July 2007, the Department issued a Request for Proposal, inviting private
entities to submit bids to contract with the City for the golf-cart concession
at all seven golf courses. The Request
for Proposal included notice to proposed bidders that the Department would also
conduct an analysis in accordance with section 1022 of the City charter to
determine whether it was more economical or feasible for the City to
self-operate the golf-cart concession.
The results of the analysis and plan for self-operation would be
evaluated with the proposed bids received from private entities.

The Request for
Proposal also gave notice that the Board of Recreation and Park Commissioners
(Board) was the “contract awarding authority” for the Department and would, at
a public meeting, select the bidder to be awarded the contract. The “selected concessionaire” would then
complete final paperwork and execute the contract directly with the City. Proposed bidders were also given notice that
section 10.5 of the City Administrative Code required the proposed contract to
be approved by the City Council because the term of the proposed concession
exceeded three years. And, proposed
bidders were further advised that under section 371 of the City charter, the
City reserved the right to reject any and all bids or proposals and waive any
informalities in any bid received if to do so was to the advantage of the
City.

In response to the
Request for Proposal, the Department received five bids. Two of those bids were rejected during the
initial review for noncompliance with the required bid documentation set forth
in the Request for Proposal. The bids
from Ready Golf, Kishi and a third entity, Angeles Management Services,
proceeded to the next stage of the evaluation process.

To assist in
administering the Request for Proposal, the Department hired Economic Research
Associates, an independent consultant.
Economic Research Associates selected a five-person panel composed of
individuals from other municipalities experienced in public golf course
management. The independent panel
interviewed the three proposed bidders and evaluated their respective bids
using scoring criteria for six different categories, including (1) ability to
finance, (2) qualifications and background, (3) description of proposed golf
carts, cart maintenance and cart replacement, (4) business plan, (5) proposed
rental payment to City, and (6) capital improvements. Each bidder was evaluated and ranked in each
category, with a perfect score being 100.
Ready Golf received the highest overall score of 97 points. Kishi was second with a score of 88, and
Angeles Management Services was ranked third with a score of 83.2.

The
panel unanimously recommended that Ready Golf be awarded the contract. Economic Research Associates concurred with
the panel’s assessment and forwarded the recommendation to the Department. In May 2008, John Mukri, general manager of
the Department, prepared a report for consideration by the Board, summarizing
the evaluation process and recommending that Ready Golf be awarded the
contract. Mr. Mukri also reported
that the Department’s analysis under section 1022 of the City charter showed it
was more economical to award the contract to Ready Golf than for the City to
attempt to self-operate the golf-cart concession.

At
its June 4, 2008 meeting, the Board voted unanimously to award the contract to
Ready Golf. The two losing bidders,
Kishi and Angeles Management Services, asked the Board to reconsider its
decision. At another lengthy public
meeting held July 23, 2008, the Board once again voted unanimously to award the
contract to Ready Golf.

The
proposed contract with Ready Golf contained a provision that the concession
would last for 10 years, with one 5-year renewal option. Section 10.5 of the City Administrative Code
required City Council approval of the proposed contract because it was for a
term of more than three years. Pursuant
to the mayor’s Executive Directive No. 3, the contract also had to be reviewed
by the mayor’s office.

Upon
receipt of the proposed contract, the mayor’s office ordered a report to be
prepared by the Office of the City Administrative Officer (CAO). Following its review of the proposed contract
with Ready Golf, the CAO issued a report dated October 10, 2008, recommending
that the City Council approve and authorize the Board to execute the contract,
subject to approval as to form by the city attorney in accordance with section
370 of the City charter.

The
CAO report was not released publicly, nor was the proposed contract forwarded
to the City Council for a vote. Instead,
the mayor’s office asked the CAO to review the proposed contract again. In December 2008, after reevaluating the
Ready Golf contract, the CAO released its second report, once again
recommending that the City Council authorize and approve execution of the
proposed contract. The report also
concurred in the Department’s assessment that it would be more economical for
the City to contract with Ready Golf than to self-operate the golf-cart
concession.

Because
Ready Golf had not received notice of the scheduling of a vote on its contract,
Ready Golf made numerous inquiries of the mayor’s office as to the status of
the proposed contract. Ready Golf was
told by a representative of the mayor’s office that the CAO “got it wrong”, but
despite several requests, Ready Golf was unable to obtain release of the CAO
reports. After continued inquiries by
Ready Golf, the mayor’s office finally released the CAO reports to the City
clerk in July 2009, and the proposed contract was forwarded to the Arts, Parks,
Health and Aging Committee of the City Council for review in preparation for a
vote by the full council.

The
committee, headed by Councilmember Tom LaBonge, voted two to zero to approve
the proposed contract with Ready Golf.
The contract was then placed on the City Council’s agenda for a vote on
July 22, 2009. During the hearing, a
vote on the contract was put on hold on the motion of Councilmember Jan Perry
on the grounds that Michael Yamaki, a lawyer for Kishi, was not present. Mr. Yamaki is the nephew of Kishi’s
principal, as well as a former member of the Board of Police Commissioners and
the Fire Commission, and an adviser to Los Angeles County Sheriff Lee
Baca. Mr. Yamaki was also president
of the Riviera Country Club and regularly played golf with City officials.

Without any
explanation to Ready Golf, the proposed contract was sent back to the Arts,
Parks, Health and Aging Committee, whereupon the committee once again voted to
approve the contract and to have the matter voted on by the full council. In light of the unexplained delays and
procedures, Ready Golf believed Mr. Yamaki was lobbying members of the City
Council to vote to reject the Ready Golf contract.

On
September 4, 2009, the proposed contract was reset for a vote by the City
Council. Several individuals including
the president of the Board, and Mr. Mukri, the general manager of the Department,
argued for approval of the contract. The
City Council was advised that Kishi was being audited for alleged
underreporting of revenues to the City and other possible financial
irregularities. The City Council voted
eight to seven to disapprove the proposed contract with Ready Golf. During that same session, the City Council
passed two motions asking the Board to award a five-year contract to Kishi, and
asking the Department to study the feasibility of transitioning to
self-operation of the golf-cart concession at the end of the five-year
period.

Kishi was allowed
to continue to operate the golf-cart concession on a month-to-month basis while
the Department undertook an analysis of the City Council’s requests. The audit of Kishi was completed in August
2010. The audit confirmed that Kishi had
underreported revenues to the City and otherwise questioned Kishi’s internal
accounting procedures. After issuance of
the final audit report, the general manager of the Department issued a third
report on the Request for Proposal of the golf-cart concession. Based on a reevaluation of the feasibility of
self-operation, the Department came to the revised conclusion that
self-operation was the best option, providing a higher rate of return to the
City, even as compared with what the Department expected under the Ready Golf
bid. The Department further recommended
that any further relationship with Kishi be terminated. The Department also recommended that the
Request for Proposal be cancelled, and that all bidders be sent notices of
rejection with deposits returned. Ready
Golf received a notice of rejection dated September 7, 2010, along with a
return of its bid deposit.

Ready
Golf filed this action in November 2010 stating claims for ordinary mandamus
and administrative mandamus, and requesting the issuance of a writ of mandate
directing the City to submit the proposed contract with Ready Golf to the City
Council for a vote and/or compelling the award and execution of the proposed
contract with Ready Golf. The City
demurred, contending there was no basis for a writ as a matter of law because
the City cannot be compelled to exercise its discretion in a particular
manner.

After
briefing and oral argument, the trial court sustained the City’s demurrer
without leave to amend and entered a judgment
of dismissal on April 20, 2011. This
appeal followed.

>DISCUSSION

The
central question we must resolve is whether the trial court, in sustaining the
City’s demurrer without leave to amend, erred in determining that Ready Golf
failed as a matter of law to state a claim for traditional mandamus pursuant to
Code of Civil Procedure 1085. Our review
of the court’s determination of the legal sufficiency of the complaint is de
novo. We exercise “‘our href="http://www.mcmillanlaw.com/">independent judgment about whether the
complaint states a cause of action as a matter of law. [Citations.]
We give the complaint a reasonable interpretation, reading it as a whole
and viewing its parts in context. [Citations.]
We deem to be true all material facts properly pled. [Citation.]
We must also accept as true those facts that may be implied or inferred
from those expressly alleged.
[Citation.]’ [Citation.]” (Westamerica
Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 606-607 (>Westamerica Bank).)

Our review of the
court’s decision denying leave to amend is reviewed for abuse of
discretion. “‘When the trial court
sustains a demurrer without leave to amend, we must also consider whether the
complaint might state a cause of action if a defect could reasonably be cured
by amendment. If the defect can be
cured, then the judgment of dismissal must be reversed to allow the plaintiff
an opportunity to do so. The plaintiff
bears the burden of demonstrating a reasonable possibility to cure any defect
by amendment. [Citations.]’ [Citation.]”
(Westamerica Bank, >supra, 201 Cal.App.4th at p. 607.)

We
conclude the demurrer was properly sustained and that the trial court did not abuse
its discretion in denying leave to amend.

1.
Writ of
Mandate (Code Civ. Proc., § 1085).

“‘A public
entity’s “‘award of a contract, and all of the acts leading up to the award,
are legislative in character.’”’
[Citation.]” (>SN Sands Corp. v. City and County of San
Francisco (2008) 167 Cal.App.4th 185, 191 (SN Sands); accord, Marshall
v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1253.) A traditional writ of mandate pursuant to
Code of Civil Procedure section 1085 is a proper remedy for review of a
legislative determination. (>Marshall, supra, at p. 1253; accord, Mike
Moore’s 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294,
1303.)

Judicial review of
such a determination is limited. A
traditional writ may issue to compel the performance of a ministerial duty, and
“to correct those acts and decisions of administrative agencies which are in
violation of law, where no other adequate remedy is provided.” (Bodinson
Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 329; see also Code
Civ. Proc., § 1085.) “Generally, Code of Civil Procedure section 1085 may only be employed to
compel the performance of a duty which is purely ministerial in character. [Citation.]
[¶] A ministerial act is an act
that a public officer is required to perform in a prescribed manner in
obedience to the mandate of legal authority and without regard to his own
judgment or opinion concerning such act’s propriety or impropriety, when a
given state of facts exists. Discretion,
on the other hand, is the power conferred on public functionaries to act
officially according to the dictates of their own judgment.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502.) “Mandamus does not lie to compel a public
agency to exercise discretionary powers in a particular manner, only to compel
it to exercise its discretion in some manner.”
(AIDS Healthcare Foundation v. Los
Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700-701;
accord, Landsborough v. Kelly (1934)
1 Cal.2d 739, 744 (Landsborough).)

To the extent
Ready Golf attempted to plead a cause of action for a writ of administrative
mandamus pursuant to Code of Civil Procedure section 1094.5, we find there is
no basis, as a matter of law, for stating such a claim because, on the facts
pled, the challenged decision was not quasi-judicial in nature. (See Monterey
Mechanical Co. v. Sacramento Regional County Sanitation Dist. (1996) 44
Cal.App.4th 1391, 1399 (Monterey
Mechanical); see also Ghilotti
Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 904, fn.
1.) Indeed, Ready Golf does not argue on
appeal any claim for administrative mandamus.
We therefore limit our discussion to the viability of Ready Golf’s claim
for traditional mandamus.

2.
General Law
Regarding Charter Cities.

The City is a
charter city with “maximum allowable control over municipal affairs.” (First
Street Plaza Partners v. City of Los Angeles (1998) 65 Cal.App.4th 650, 661
(First Street).) “The City of Los Angeles shall have all
powers possible for a charter City to have under the constitution and laws of
this state as fully and completely as though they were specifically enumerated
in the Charter, subject only to the limitations contained in the Charter.” (L.A. City Charter, vol. I, art. I, § 101.)

With respect to
charter cities, the charter (often referred to as a “local constitution”)
represents the supreme law of the municipality “subject only to conflicting
provisions in the federal and state Constitutions and to preemptive state law. [Citation.]
In this regard, ‘[t]he charter operates not as a grant of power, but as
an instrument of limitation and restriction on the exercise of power over all
municipal affairs which the city is assumed to possess; and the enumeration of
powers does not constitute an exclusion or limitation. [Citations.]’
[Citations.]” (>Domar Electric, Inc. v. City of Los Angeles
(1994) 9 Cal.4th 161, 170 (Domar).)

By adopting a
charter and “‘accepting the privilege of autonomous rule[,] the city has all
powers over municipal affairs, otherwise lawfully exercised, >subject only to the clear and explicit
limitations and restrictions contained in the charter.’ [Citations.]
Charter provisions are construed in favor of the exercise of the power
over municipal affairs and ‘against the existence of any limitation or
restriction thereon which is not expressly stated in the charter . . . .’ [Citations.]
Thus, ‘[r]estrictions on a charter city’s power may not be implied.’ [Citation.]”
(Domar, supra, 9 Cal.4th at p. 171, italics added; see also Cal. Const.,
art. XI, § 5.)

It is
well-established that the power to enter into contracts is a municipal affair.
(First Street, supra, 65 Cal.App.4th at p. 661;
R & A Vending Services, Inc. v. City of Los Angeles (1985)
172 Cal.App.3d 1188, 1192 [awarding contract for refreshment stands in city
park is matter of municipal concern subject to control by city charter].) A charter city “has the power to enter
contracts to carry out its necessary functions and may place conditions or
specifications on the bidding for such contracts.” (Amaral
v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1175.)

The City’s charter
expressly provides for the formation of contracts. (See generally, L.A. City Charter, vol. I,
art. III, § 370 et seq.) Section 10.1 of
the City Administrative Code provides:
“The City of Los Angeles, in addition to any other rights and powers now
held by it, or that hereafter may be granted to it under the constitution or
laws of the State, shall have the right and power, subject to the restrictions
in the Charter to make contracts.” The
City has also adopted numerous ordinances enumerating the requirements for the
creation of binding City contracts. (See
L.A. City Admin. Code, div. 10, ch. 1.)

“[A] charter city
may not act in conflict with its charter.
[Citations.] Any act that is
violative of or not in compliance with the charter is void.” (Domar,
supra, 9 Cal.4th at p. 171.) And, “‘[a]ny ordinance passed by a municipal
corporation within the scope of the authority expressly conferred on it has the
same force within its corporate limits as a statute passed by the Legislature
has throughout the state.
[Citations.] To be valid, an
ordinance must harmonize with the charter.
[Citation.] . . .’ [¶] ‘
. . . “Where ordinances or bylaws have been enacted pursuant to competent
authority they will be supported by every reasonable intendment, and reasonable
doubts as to their validity will be resolved in their favor. Courts are bound to uphold municipal
ordinances and bylaws unless they manifestly transcend the powers of the
enacting body.”’ [Citation.]” (Brown
v. City of Berkeley (1976) 57 Cal.App.3d 223, 231.)

3.
The Facts
Pled Do Not State a Claim for Writ Relief.

Ready Golf
contends it has properly pled entitlement to writ relief based on the City’s
alleged violations of, or acts in excess of, its contracting authority as set
forth in the charter and applicable ordinances adopted pursuant thereto. First, Ready Golf argues that the City’s
discretion to reject any and all bids for the golf-cart concession pursuant to
section 371 of the City charter was limited by the phrase “when to do so would
be to the advantage of the City,” and that the City abused its discretion in
rejecting Ready Golf. Second, Ready Golf
argues that the City Council acted contrary to section 10.5 of the City
Administrative Code by passing motions subsequent to its disapproval of the
Ready Golf contract, “requesting” the Board to award a five-year contract to
Kishi, and in effect illegally modifying the proposed Ready Golf contract. We address each argument in turn.

a.
The Right to
Reject

Ready Golf argues
the City twice abused its discretionary right to reject: in the City Council’s disapproval of the
proposed contract on September 4, 2009, and in the Department’s notice of
rejection of all bids sent in September 2010.
The right to reject provision is set forth in section 371 of the charter
pertaining to competitive bidding.
Subdivision (c) of section 371 provides:
“The City shall reserve the right to reject any and all bids or
proposals and to waive any informality in the bid or proposal >when to do so would be to the advantage of
the City. The City may also reject
the bid or proposal of any bidder or proposer who has previously failed to
timely and satisfactorily perform any contract with the City.” (Italics added.)

Ready
Golf contends the City’s right to reject is qualified by the phrase “when to do
so would be to the advantage of the City,” and that the record contains no
evidence supporting the decision to reject Ready Golf, as it had been
unanimously recommended as the best option for the City to operate the
golf-cart concession. Ready Golf
therefore contends it has pled a claim showing the rejection of Ready Golf was
without any evidentiary support, was patently arbitrary and an abuse of the
discretionary right to reject for which a writ of mandate will lie.

The City argues
that the qualifying language applies only to the waiver of informalities and
that the City has absolute discretion to reject any or all bids at any
time. We agree with Ready Golf’s
construction of the charter language, finding that the City has the right to
reject any and all bids when to do so would be to the advantage of the City. Nonetheless, we do not find that a basis for
writ relief has been pled based on an alleged violation of the right to reject
provision.

A
city charter is construed in the same manner as a statute, under the familiar
rules of statutory construction. (>Domar, supra, 9 Cal.4th at pp. 171-172.)
The right to reject provision must be read in context, and with
reference to the purpose of the entire enactment of which it is a part. (Ibid.;
accord, Monterey Mechanical, >supra, 44 Cal.App.4th at pp.
1402-1403.) As our Supreme Court has
explained, statutes, charters and ordinances pertaining to competitive bidding
for public contracts are for the purpose of inviting competition and guarding
against fraud and corruption, and must be construed and administered with
“‘sole reference to the public interest,’” and not the interests of private bidders. (Domar,
supra, 9 Cal.4th at p. 173.) With this purpose in mind, we find
unpersuasive the City’s argument that the qualifying language in section 371 of
the City charter (“when to do so is to the advantage of the City”) applies only
to the waiver of bid informalities.
Rather, the qualification applies both to the right to reject bids and
the right to waive any informality in the bid.
The question remains, however, whether any facts are alleged showing
Ready Golf’s entitlement to a writ of mandate based on the manner in which the
City exercised its rights under the right to reject provision.

The right to
reject provision does not apply to the City Council’s decision to disapprove
the proposed contract. Ready Golf
correctly argued to the trial court that the right to reject provision applies
only to the rejection of bids and
proposals during the bidding process.
Ready Golf’s bid was not
rejected during the bidding process. The
Board, as the contract-awarding authority for the Department, selected Ready
Golf’s bid and proposed to award the contract to Ready Golf. However, because the proposed contract
contained a 10-year term, the award was conditional and required the
authorization of the City Council to be finalized as a formal contract.

Under a separate
provision of the City charter (section 373 pertaining to long-term contracts in
general), and section 10.5 of the City Administrative Code enacted pursuant to
section 373, it was mandatory to
obtain City Council approval of any proposed contract with a term exceeding
three years. Without City Council
approval, the Board had no power to enter a binding contract with Ready
Golf. There is no language in the
ordinance qualifying the City Council’s authority to approve or disapprove
long-term contracts submitted for its consideration. The ordinance provides, in relevant
part: “Except as otherwise provided in
the Charter or this Code, no board, officer or employee of the City shall make
any contract, obligating the City, or any department of the City, to make or
receive payments of money or other valuable consideration for a period longer
than three (3) years, unless such
contract shall have been first approved by the Council.” (L.A. City Admin. Code, § 10.5, subd. (a),
italics added.)

In enacting that
ordinance, the City plainly made the legislative determination that contracts
longer than three years in duration were of sufficient significance that joint
approval by the contract-awarding authority and the City Council would be
mandatory before any such contract could be finalized and bind the City. This discretionary authority to give or to
withhold approval of long-term contracts is vested in the City Council under
the City charter. A writ of mandate will
not lie to interfere with that discretionary determination. (Common
Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 445 (>Common Cause).)

However, we find
the right to reject provision does apply
to the Department’s subsequent rejection of all bids in September 2010. Ready Golf’s petition recited at length the
process by which the Department and the Board considered the Ready Golf bid,
and the mayor’s office and the City Council considered the proposed contract,
as well as the various requests for reconsideration, and Kishi’s apparent
improper influence over the City Council based on its representative’s close
relationships with City officials. The
facts alleged in the petition, and incorporated by reference from the attached
exhibits, also show that after the City Council’s vote to disapprove the Ready
Golf contract, the Department undertook further analysis of the most
appropriate option for the golf-cart concession, including a reevaluation of
the feasibility of self-operation. The
Department ultimately concluded that self-operation was the best option and
that a better return to the City could be achieved even when compared with the
Ready Golf bid, and rejected all
bids.

Construing the
complaint liberally, we find it is reasonable to infer that Kishi improperly
sought to influence the Board and the City Council by hosting golf outings with
City officials or otherwise engaging in behind-the-scene maneuvers and pulling
of strings attached to powerful people in City government. Nonetheless, such facts and inferences do not
support a violation of law that may be remedied by traditional mandamus. Ready Golf does not and cannot allege that
Kishi’s undue influence resulted in an award of a contract to Kishi. The Department reevaluated the feasibility of
self-operation and determined to reject all bids, including Kishi’s. Courts are not empowered to review the
particular manner in which the City exercised its discretion in deciding
whether to award the golf-cart concession to a private entity or to
self-operate. (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public
Health, supra, 197 Cal.App.4th at pp. 700-701; accord, Landsborough, supra, 1
Cal.2d at p. 744.)

Under different
facts, for example, if the City had acted in violation of clear and explicit
limitations and restrictions contained in the charter, Ready Golf may have had
the right to seek mandamus. (See >Domar, supra, 9 Cal.4th at p. 171; see also Cal. Const., art. XI, §
5.) If facts were pled showing the City
had violated the contracting requirements of its governing charter, Ready Golf
may have stated a claim for writ relief.
(See, e.g., Monterey Mechanical,
supra, 44 Cal.App.4th at pp.
1412-1414 [bidder for public contract was entitled to writ compelling public
entity to apply correct criteria specified in Public Contract Code to assess
good faith effort of bidder to satisfy affirmative action goals]; see also >Landsborough, supra, 1 Cal.2d at pp. 745-746; SN
Sands, supra, 167 Cal.App.4th at
pp. 193-195.) Or, if facts had been pled
showing that Kishi’s undue influence had resulted in an award of the contract
to it, Ready Golf may have stated a basis to set aside the award due to the
tainted process and require the City to reconsider the bids under applicable
law.

Or, if all that
remained following the Board’s award of the proposed contract to Ready Golf
were nondiscretionary acts necessary to finalize and execute the contract, a
claim may have been stated to compel City action. (See, e.g., Transdyn/Cresci JV v. City and County of San Francisco (1999) 72
Cal.App.4th 746, 758 [writ of mandate proper to compel execution of approved
contract where head of department refused to undertake ministerial act of
executing the agreement].) However, the
Board’s initial award of the contract was conditional on City Council
approval. There can be no argument that
the City Council’s duty under the charter to approve or disapprove a long-term
contract was merely a ministerial act.
Such a construction would render the approval process mandated by
section 373 of the City charter and section 10.5 of the City Administrative
Code superfluous.

The Board and the
City Council’s consideration and determination of what would be to the
advantage of the City was a classic discretionary function. “It is a legislative function to consider
data, opinion, and arguments, and then to exercise discretion guided by
considerations of the public welfare.” (>Mike Moore’s 24-Hour Towing v. City of San
Diego, supra, 45 Cal.App.4th at
p. 1312.) “[I]t is well settled that
although a court may issue a writ of mandate requiring legislative or executive
action to conform to the law, it may not substitute its discretion for that of
legislative or executive bodies in matters committed to the discretion of those
branches.” (Common Cause, supra, 49 Cal.3d
at p. 445; see also Stanley-Taylor Co. v.
Supervisors (1902) 135 Cal. 486, 488 [absent showing of illegal conduct,
writ of mandate did not lie to compel public entity to award contract where
entity had charter authority to reject all bids in the public interest].)

We conclude
mandamus is not available to Ready Golf to correct any influence of Kishi
executives on the City’s decision to disapprove the proposed long-term contract
or the Board’s ultimate decision to reject all bids. In its mandamus petition, Ready Golf sought
issuance of a writ of mandate directing the City to submit the proposed
contract with Ready Golf to the City Council for a vote and/or compelling the
award and execution of the proposed contract with Ready Golf. In its briefs before this court and at oral
argument, Ready Golf conceded it is not asking for issuance of a writ
compelling the City to award the golf-cart concession to Ready Golf, which
would plainly exceed the scope of mandamus review. Rather, Ready Golf asks us to vacate the
judgment of dismissal and remand for a trial on whether it is to the advantage
of the City to reject the Ready Golf bid and to self-operate. Thus, Ready Golf seeks a trial court judgment
to the effect that self-operation is not to the advantage of the City, and only
an award of the concession to Ready Golf would be to the advantage of the City. Such an order would also exceed the scope of
mandamus review.

No matter how
distasteful we may find the appearance of bias in favor of Kishi, the courts have
no authority to substitute judicial discretion for the City’s discretionary
decision to self-operate the golf-cart concession. There is no legal basis for a writ of mandate
in this case based on the City’s exercise of the right to reject provision in the
City charter.

b.
The Alleged
Contract Modification

Section 10.5,
subdivision (a) of the City Administrative Code provides that: “Except as otherwise provided in the Charter
or this Code, no board, officer or employee of the City shall make any
contract, obligating the City, or any department of the City, to make or
receive payments of money or other valuable consideration for a period longer
than three (3) years, unless such contract shall have been first approved by
the Council. The Council shall have 60
days from the date the contract is transmitted by the board, officer or
employee and received by the City Clerk, to approve it. The contract shall be deemed approved if the
Council does not disapprove it within this period. If the
Council disapproves the contract, the Council shall not modify the contract,
but shall return it to the contracting authority for reconsideration and
resubmission to the Council.”
(Italics added.)

After the City
Council voted on September 4, 2009, to disapprove the proposed contract with
Ready Golf, it passed two motions requesting action by the Board and the
Department. It requested that the Board
award a shorter-term, five-year contract for the golf-cart concession to Kishi,
and it requested that the Department reevaluate the feasibility of
transitioning to self-operation at the end of that five-year period. Ready Golf contends those motions were an
illegal modification of the Board-approved proposed contract with it (the only
contract before the City Council for consideration), in direct violation of the
governing ordinance which commands that “[i]f the Council disapproves the
contract, the Council shall not modify the contract, but shall return it to the
contracting authority for reconsideration and resubmission to the Council.” This language tracks the identical language
in the City charter at section 373.

If
the City Council had passed motions awarding
a five-year contract to Kishi and directing the Board to execute such a
contract, then Ready Golf’s argument would have merit. However, we cannot imply a restriction into
the charter or the ordinance that does not exist. (Domar,
supra, 9 Cal.4th at p. 171.) There is nothing in the language of section
373 of the City charter or in section 10.5 of the City Administrative Code that
prevents the City Council from asking the Board or Department to consider
alternative options following its disapproval of a proposed long-term
contract. The City Council asked the
Board to consider an alternative contract option with Kishi following its
disapproval of the proposed 10-year contract with Ready Golf, a request that
admittedly appears unusual given the information in the record that was before
the City Council. However, we do not
construe the request as a modification of the proposed contract or a violation
of the City charter or the ordinance.
Therefore, no claim is stated for issuance of a writ of mandate on this
basis.

4.
Leave to
Amend.

Ready Golf has not
stated any alternative proposed facts that could be pled that are sufficient to
cure the defects in its claim. As such,
it was not an abuse of discretion to deny leave to amend. (Westamerica
Bank, supra, 201 Cal.App.4th at
p. 607.)

>DISPOSITION

The
judgment of dismissal entered April 20, 2011, in favor of the City of Los Angeles
is affirmed. The City of Los Angeles is
awarded costs on appeal.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







GRIMES,
J.



We concur:







BIGELOW,
P. J.







RUBIN,
J.