Initiative Partners v. Cal. Dept. of Health Services

Filed 8/23/06 Initiative Partners v. Cal. Dept. of Health Services CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed.

Davis, Wright & Tremaine, Janet L. Grumer and Andrew J. Thomas for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Thomas Yanger, Senior Assistant Attorney General, John H. Sanders, Supervising Deputy Attorney General, Richard T. Waldow, Kyungah Suk and Jennifer M. Kim, Deputy Attorneys General, for Defendant and Respondent.

introduction

Initiative Partners Inc. (Initiative) appeals from a judgment in favor of the California Department of Health Services (DHS). The judgment was entered following a bench trial wherein the trial court concluded that Initiative did not have standing as a third party beneficiary to enforce the terms of a contract entered into by DHS and Asher & Partners (Asher). Asher was an advertising agency with which DHS had contracted to conduct its state-wide tobacco education media campaign. Initiative was the media buyer hired by Asher to purchase radio and television time for the tobacco campaign. This lawsuit arose out of Asher's failure to pay Initiative for its services. As we shall explain, we conclude the trial court correctly determined that Initiative did not have standing as a third party beneficiary to enforce the DHS-Asher contract.

In addition, Initiative contends on appeal that the trial court erred, prior to trial, in sustaining without leave to amend a demurrer brought by DHS as to Initiative's cause of action for promissory estoppel. We further conclude, for reasons we shall also explain, that Initiative could not, as a matter of law, state a cause of action for promissory estoppel. Accordingly, we affirm the judgment.

factual and procedural background

The 1996 Contract

In December 1996, the Tobacco Control Section of the California Department of Health Services (DHS) contracted with the advertising agency of Asher & Partners, Inc. (Asher)[1] to conduct its extensive anti-smoking media campaign.^[2] The term of the contract (â€