County of San Bernardino v. Walsh

In County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, the defendants, a corporation and its owner, entered into a lease transaction with the plaintiff county granting them a leasehold interest in billboard sites along certain county highways and requiring them to complete construction of billboards on the sites within 12 months. (Id. at p. 548.) After three extensions of the 12-month construction time limit, the defendants completed 12 billboards at a cost to them of $600,000. (Ibid.) The defendants thereafter agreed to assign the lease and sell five of the billboards to a third party for $4.4 million, which assignment required the approval of the county. (Ibid.) In return for a $20,000 bribe from the defendants, the county's chief administrative officer expedited the issuance of the county's consent to the assignment of the lease. (Ibid.) The defendants received $4.4 million as a result of the assignment, $3.8 million of which was profit. (Ibid.) The county sued the defendants for, inter alia, violation of section 1090. (San Bernardino, supra, 158 Cal.App.4th at p. 549.) Following a trial, the trial court found the defendants liable for violation of section 1090 and awarded the county $3.8 million in damages representing the proceeds from the lease assignment to the third party, less the cost of constructing the billboards. (San Bernardino, supra, 158 Cal.App.4th at p. 549.) In affirming the trial court's ruling on the cause of action for violation of section 1090, the court in San Bernardino, supra, 158 Cal.App.4th 533 concluded that "under the circumstances of this case, an award of damages representing the price paid by a third party to obtain benefits under a contract that violates section 1090 is warranted. Such a remedy is consistent with the purpose of section 1090 to prevent an offending party from benefiting from a contract that involves self-dealing by a public official. (See Carson ... , supra, 140 Cal.App.4th at pp. 1335-1336.) ... This is not a situation where the County bought something and could be made whole by a judgment requiring defendant to return the money paid by the County. Under the facts of the instant case, the goal of the statute cannot be achieved with a lesser remedy that would provide no disincentive to the misconduct. As the trial court stated, the absence of a judgment requiring the defendants to disgorge the profits they received from the third party assignee of the lease would leave 'a powerful incentive to pay small bribes for big public contracts.' The only remedy that would redress the injury to the people of the County is to unravel the deceit and require the defendants to pay the County the profit from their and the chief administrative officer's misdeeds. (See Carson ... , supra, 140 Cal.App.4th at pp. 1335-1336.)" (Id. at pp. 550-551.) The Court explained the purpose and application of section 1090 as follows: "In order to fulfill the fundamental public policy underlying section 1090, the County may obtain a forfeiture of the proceeds of a tainted contract, even when the proceeds were received from a third party rather than the public entity itself. Section 1090 prohibits public officials from being financially interested in any contract made by them in their official capacity. . Section 1090 embodies the principle that the duties of public office demand the absolute loyalty and undivided allegiance of the individual who holds the office. . More basically, section 1090 applies 'the truism that a person cannot serve two masters simultaneously.' . Section 1090 has been interpreted liberally to prohibit any form of self-dealing. . The statute cannot be given 'a narrow and technical interpretation that would limit its scope and defeat the legislative purpose.' . Section 1090 is triggered when a public official receives any profit from a public contract and includes the acceptance of a bribe in return for influencing the public entity to enter into a particular contract. ."