Filed 8/23/24 City of South Gate v. Robles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

CITY OF SOUTH GATE,

Respondent,

v.

ALBERT T. ROBLES,

Appellant.

 B325897

 (Los Angeles County

 Super. Ct. No. BC334843)

 ORDER MODIFYING 

 OPINION AND DENYING 

 REHEARING

 NO CHANGE IN THE 

 JUDGMENT 

THE COURT:

It is ordered that the opinion filed herein on August 1, 2024, be 

modified as follows: 

1. On page thirteen, after the paragraph ending 
2

“incorporated into a written employment contract” and 

before the “Grant of Summary Adjudication” heading, 

insert the following paragraphs:

In his petition for rehearing, Robles raises 

nearly half a dozen newly minted arguments 

assailing the trial court’s ruling that the four claims 

underlying summary judgment in the City’s favor 

were timely filed. Robles’s petition is procedurally 

improper, as petitions for rehearing are not a forum 

for raising new arguments for the first time. 

(Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 

1013 [“‘It is a fundamental rule of appellate practice 

that an appellate court need not consider issues 

raised for the first time by a petition for rehearing’”]; 

EpicentRx, Inc. v. Superior Court (2023) 95 

Cal.App.5th 890, 909 [“‘[a] petition for rehearing is 

not a place to raise any argument . . . for the first 

time’”].) 

The plethora of arguments presented in 

Robles’s petition for rehearing nevertheless distill 

down into three new arguments, each of which 

fundamentally misunderstands the law, the 

undisputed facts in this case, or both. First, Robles 

asserts that the City’s fraud claim was untimely 

because the City did not meet the heightened 

pleading standard for fraud claims. This assertion is 

frivolous because the quality of pleading has no 

bearing whatsoever to an evidence-based motion like 

summary judgment. (E.g., Rodes v. Shannon (1961) 

194 Cal.App.2d 743, 746 [“‘the sufficiency of the 

pleadings cannot be reviewed on appeal from a 
3

summary judgment’”].) Second, Robles contends that 

he was not hired as deputy city manager with a 

written employment agreement until May 2002, that 

the Espinoza-arranged contracts underlying the 

City’s claims were all signed in the fall of 2001 when 

he was merely the City treasurer who worked 

without a written employment agreement, and that 

the City’s fraud, breach of fiduciary duty, and breach 

of contract claims are accordingly all untimely 

because they are subject to the shorter limitations 

periods prescribed for oral contracts. These 

contentions are also without merit. To begin, the 

City’s fraud claim is not contingent upon Robles’s 

employment in any capacity. The fraud claim is 

premised on Robles’s use of his unofficial influence 

over a majority of the councilmembers to convince the 

City to grant contracts to contractors who use 

Espinoza as a consultant, and on Espinoza’s conduct 

in subsequently funneling money paid to him with 

City funds (either directly by the City or indirectly 

through the contractors) to Robles; the fraud arose 

because the City was getting nothing of value from 

the portion of its money paid to Robles as kickbacks. 

Robles’s official status is irrelevant to this fraud 

scheme. The City’s breach of fiduciary duty and 

breach of contract claims are also subject to the 

longer limitations period for written contracts 

because no matter when the Espinoza-arranged 

contracts with the City were signed, the City was not 

damaged until Robles received his kickbacks of City 
4

funds, and some of those funds were paid after Robles 

became deputy city manager. Lastly, Robles argues 

that as city treasurer he had no “official” decisionmaking power and performed wholly “ministerial” 

tasks. We also reject this argument: The fact that 

Robles’s illegal kickback scheme was outside of his 

official, ministerial duties is neither a surprise nor a 

defense that would empower Robles to keep his illgotten gains. 

2. In the second paragraph of the inserted text outlined 

above, after the third-to-last sentence ending “some of 

those funds were paid after Robles became deputy city 

manager,” insert footnote 7 as follows (and renumber 

subsequent footnotes accordingly):

7 To the extent Robles suggests in his petition for 

rehearing that the statute of limitations on all of 

these claims began to run the moment the City 

signed the Espinoza-arranged contracts, that 

suggestion contradicts Robles’s earlier concession in 

this appeal that the statute of limitations did not 

begin to run until he was federally indicted, which 

was the point at which the City first discovered 

Robles’s subterfuge.

* * *
5

There is no change in the judgment. 

Appellant’s petition for rehearing is denied. 

——————————————————————————————

ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J. 
Filed 8/1/24 City of South Gate v. Robles CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 TWO

CITY OF SOUTH GATE,

Respondent,

v.

ALBERT T. ROBLES,

Appellant.

 B325897

 (Los Angeles County

 Super. Ct. No. BC334843)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Olivia Rosales, Judge. Affirmed.

Albert T. Robles, in pro. per., for Appellant.

Gordon Rees Scully Mansukhani, Don Willenburg and 

Andrea K. Williams for Respondent. 
2

* * * * * *

Albert Robles (Robles) exploited his position as an elected 

city official and city employee to direct city funds to certain 

companies and individuals, from whom he extracted kickbacks 

for his “services.” After he was prosecuted federally for these 

acts, the city sued Robles civilly to recover the amount of money 

he extracted from the city as kickbacks. The trial court granted 

the city summary judgment on four of its claims, and entered 

judgment for over $4 million. Robles challenges the judgment on 

several grounds. Because they all lack merit, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Robles takes control of city bidding process

Robles was a political fixture within the City of South Gate 

(the City) for many years. He served as an elected member of the 

five-member city council from 1992 to 1997, including a stint as 

mayor during that period. Robles was elected as the City’s 

treasurer in 1997, and the voters reelected him to that position in 

2001. In May 2002, the City also hired Robles to work as a 

deputy city manager. His position as deputy city manager was 

governed by a written employment agreement. 

B. Robles receives kickbacks 

In the mid-1990s, Robles concocted several schemes to 

make money using his influence over City politics. 

One of the schemes involved Edward Espinoza (Espinoza), 

a New Jersey-based financial and political consultant.1 It worked 

1 This was not the only scheme. Robles also received 

kickback payments from a different consultant who, after 

receiving money from companies who won City contracts, would 
3

like this: (1) Robles would convince companies who wanted 

contracts with the City to hire Espinoza as a consultant; (2) 

Robles would use his influence as an elected city official and city 

employee to ensure that the City accepted bids from the 

companies who hired Espinoza; (3) the City would pay those 

companies the bid price; (4) the companies would pay Espinoza’s 

consultant fees—including for consulting work he never 

performed—from the fees they received from the City; and (5) 

Espinoza would “funnel” the majority of his consultant fees to 

Robles or to companies or individuals Robles specified. 

Through this scheme, Robles obtained $2,022,588 of City 

funds. Specifically:

– Robles used his influence to obtain City approval of a 

housing project for a developer who hired Espinoza as a 

consultant. The City paid the developer approximately $24 

million, from which the developer paid Espinoza $1,825,000, for 

consulting fees, of which Espinoza thereafter funneled Robles, his 

family, and his friends $1,242,588.

– Robles also used his influence to obtain City 

approvals on a sewage project and a parking lot project for 

companies and individuals who hired Espinoza as a consultant. 

The City paid those developers, who paid Espinoza, who 

subsequently funneled a total of $780,000 to Robles, his relatives,

and his friends. 

C. Robles is removed from office and prosecuted

In January 2003, voters in the City recalled Robles from 

elected office.

funnel money to Robles. One of those consultants made $437,500 

in unreported campaign contributions to Robles.
4

In June 2003, the City terminated Robles’s employment as 

deputy city manager, citing the “numerous egregious acts” he 

committed and the “gross neglect of his fiduciary responsibilities”

that resulted in “a significant breach of public trust.” 

Also in June 2003, a grand jury indicted Robles for this 

public corruption. In July 2005, a jury found Robles guilty of 21 

counts of honest services mail and wire fraud based on his failure 

to disclose financial conflicts of interest, four counts of money 

laundering, and five counts of bribery. He was sentenced to 10 

years in federal prison.

Espinoza pleaded guilty to his role in the scheme.

D. Many of Robles’s convictions are reversed for 

resting on a legally invalid theory

While Robles was directly appealing his convictions, the 

United States Supreme Court ruled that the crime of honest 

services fraud could no longer be based on a public official’s 

failure to disclose a conflict of interest. (Skilling v. United States 

(2010) 561 U.S. 358.) Because the “jury instructions[] and the 

closing arguments at [Robles’s] trial were permeated with the 

[recently] prohibited failure to disclose theory,” the Ninth Circuit 

Court of Appeals issued an opinion in April 2013 reversing the

subset of Robles’s convictions that were based on that nowinvalid theory; his convictions on the still-valid theory of bribery 

were affirmed. (United States v. Garrido (2013) 713 F.3d 985.) 

II. Procedural Background

A. Robles’s complaint 

On June 10, 2005, Robles sued the City for wrongful 

termination from his post as deputy city manager. In 2007, the 

trial court granted summary judgment for the City on Robles’s 
5

employment-related claims. That judgment is not at issue in this 

appeal.

B. The City’s cross-complaint

On January 12, 2006, the City filed a cross-complaint 

against Robles alleging claims for (1) breach of Government Code 

section 1090, which prohibits public officials from having a 

financial interest in any contract made in their official capacity; 

(2) breach of fiduciary duty; (3) breach of Labor Code section 

2860, which prohibits employees from retaining anything 

acquired by virtue of their employment except their wages; (4) 

fraud; (5) breach of Robles’s employment agreement; (6) unjust 

enrichment; and (7) declaratory relief. 

C. Summary judgment/adjudication 

Due to the pendency of Robles’s criminal case and sentence, 

during which time discovery was largely stymied due to Robles’s 

ability to invoke his right against self-incrimination, the City’s 

cross-complaint remained in abeyance for many years.

1. Motion and initial ruling

In June 2021, the City moved for summary judgment on 

the claims in its cross-complaint. Attached to the City’s motion 

was a detailed declaration from Espinoza recounting Robles’s 

scheme.

Robles did not file a written opposition to the summary 

judgment motion. Instead, he appeared in propria persona at the

September 2021 hearing and orally requested a continuance due 

to a “severe mental health crisis.” The trial court denied the 

request because Robles “could not articulate any facts that would 

create a triable issue” if he were given an opportunity to file an 

opposition. The court granted the City’s motion and entered 

judgment for the City on its cross-complaint in November 2021.
6

2. Robles’s new trial motion, additional briefing, 

and operative ruling

After hiring a lawyer, Robles filed a motion for a new trial, 

asking the court to vacate the judgment and allow him to oppose 

the motion for summary judgment. Following further briefing

and a hearing, the trial court granted Robles’s motion so the 

court could “issue a substantive ruling, on the merits” of the 

City’s summary judgment motion. The court vacated the 

judgment for the City, vacated the initial order granting 

summary judgment, and placed that motion back on calendar.

2

Robles filed his opposition to the summary judgment 

motion. His chief argument was that the City’s claims were timebarred. He did not file any declaration or other evidence 

contesting Espinoza’s recounting of events.

Following further briefing and another hearing, the trial 

court issued a new ruling in March 2022 denying in part and 

granting in part the City’s motion. The court denied summary 

adjudication of the City’s claim under Government Code section 

1090, finding “triable issues of material fact” regarding whether 

that claim was barred by the applicable one-year statute of 

limitations. The court also denied summary adjudication of the 

City’s unjust enrichment and declaratory relief claims, noting

that the City had failed to “substantively address[]” those claims 

in its motion. However, the court granted summary adjudication 

of the City’s remaining claims—for breach of fiduciary duty, 

breach of Labor Code section 2860, fraud, and breach of 

contract—because (1) they all “sound[ed] in fraud” and thus were 

2 The City had moved to amend that judgment to include a 

provision setting forth a damages award, but withdrew its motion 

once the trial court reopened the briefing on summary judgment. 
7

not barred by the applicable three-year statute of limitations, and 

(2) Robles “failed to submit sufficient evidence” to raise a triable

issue on liability for those claims or for damages.

3. Post-summary adjudication briefing on 

damages 

The City dismissed the three claims on which summary 

adjudication had been denied, and filed a motion for entry of 

judgment with an award of damages on its successful claims. 

Robles asserted for the first time that the City’s damages were 

“unsupported, overlap[ped], [were] duplicative, and would result 

in a double recovery.” 

The trial court again indulged Robles’s belated attack on 

the propriety of summary judgment, and sua sponte reconsidered 

its order granting summary judgment on “the limited issue” of 

damages. The parties filed supplemental briefs regarding 

damages as ordered by the court.

In September 2022, the trial court ruled that its March 

2022 summary judgment order “will stand.” Alternatively, the 

court ruled that, even if the court were to reconsider that order, 

“Robles [had] failed to submit any admissible evidence” 

challenging the City’s damages calculations. The court awarded 

the City $1,704,268.84, representing the total amount Espinoza 

funneled to Robles and those people or entities specified by 

Robles from the City’s contract payments less $318,319.16 of 

payments the City had been refunded. 

D. Appeal

After judgment was entered for the City in the amount of 

$4,550,146.24 (which added in accrued prejudgment interest), 

Robles filed this timely appeal.
8

DISCUSSION

Robles argues that the trial court erred in granting 

summary adjudication to the City on its claims for breach of 

fiduciary duty, breach of Labor Code section 2860, fraud, and 

breach of the employment agreement because (1) those claims are 

barred by the statute of limitations, and (2) there are triable 

issues of material fact as to liability and damages.

Like summary judgment, summary adjudication is 

appropriate when the moving party shows “[it] is entitled to a 

judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); 

State of California v. Continental Ins. Co. (2017) 15 Cal.App.5th 

1017, 1031 [summary adjudication is “‘procedurally identical to 

[a] motion[] for summary judgment’”].) When the moving party is 

the plaintiff (or, here, the cross-complainant), the plaintiff must 

establish proof as to “each element of [its] cause of action.” (Code 

Civ. Proc., § 437c, subd. (p)(1).) The burden then shifts to the 

nonmoving party to show that a “triable issue of one or more 

material facts exists as to” any of those elements or as to any 

defense (ibid.; Oldcastle Precast, Inc. v. Lumbermens Mutual 

Casualty Co. (2009) 170 Cal.App.4th 554, 564). Summary 

adjudication should be denied only when there are “genuine” or 

“triable” issues of fact to be resolved at trial—that is, when “the 

evidence would allow a reasonable trier of fact to find . . . in favor 

of the party opposing the [summary adjudication] motion.” (Serri 

v. Santa Clara University (2014) 226 Cal.App.4th 830, 860, citing 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845; Code 

Civ. Proc., § 437c, subds. (c), (o) & (p).) 

In applying this standard, we independently review the 

evidence before the trial court except the evidence to which an 

objection was made and sustained (and when that evidentiary 
9

ruling is not challenged on appeal),3 and we review that evidence 

in the light most favorable to the nonmoving party, “resolving . . . 

any doubts” against summary adjudication. (Salas v. Sierra 

Chemical Co. (2014) 59 Cal.4th 407, 415; Roe v. McDonald’s Corp.

(2005) 129 Cal.App.4th 1107, 1113.) Because the propriety of 

summary adjudication is a question of law, our review is de novo 

and we may affirm on any ground regardless of whether the trial 

court relied on that ground. (Burgueno v. Regents of University of 

California (2015) 243 Cal.App.4th 1052, 1057; Long Beach 

Memorial Medical Center v. Kaiser Foundation Health Plan, Inc. 

(2021) 71 Cal.App.5th 323, 336.)

I. Statute of Limitations Bar4

We independently conclude that the undisputed facts 

establish that the City’s cross-claims were timely filed. (See Jolly 

v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [statute of 

limitations ordinarily a question of fact unless “the 

3 Although Robles filed objections to the City’s evidence, the 

trial court overruled those objections, and Robles’s attack on the 

trial court’s evidentiary rulings in his appellate briefs is cursory 

and contains no legal analysis whatsoever. We accordingly deem 

this attack on the trial court’s evidentiary rulings waived. 

(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 

939, 956; Cal. Rules of Court, rule 8.204(a)(1)(B).)

4 Because we elect to address Robles’s arguments regarding 

the statute of limitations on their merits, we have no occasion to 

address the City’s antecedent argument that Robles waived any 

statute of limitations defense by not raising any statute in 

particular in his initial answer and by citing only one statute 

when raising the defense in his amended answer after the 

summary judgment motion was filed.
10

uncontradicted facts . . . are susceptible of only one legitimate 

inference”].)

The four cross-claims at issue are governed by a three- or 

four-year statute of limitations for two reasons. First, the 

gravamen of the City’s four claims sounds in fraud, and claims 

grounded in fraud—even if they are not labeled as fraud claims—

have a three-year statute of limitations. (Hensler v. City of 

Glendale (1994) 8 Cal.4th 1, 22-23 [“gravamen,” rather than form 

or relief demanded, is key when assessing applicable statute of 

limitations]; Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 66 

[fraud limitations period “‘applie[s] to any form of action, for any 

kind of relief . . . regardless of whether the complaint seeks legal 

or equitable relief or pleads a cause of action in tort or contract’”]; 

Thomson v. Canyon (2011) 198 Cal.App.4th 594, 606-607 [same].) 

Second, even if we look to the label of the City’s claims rather 

than their gravamen, the limitations periods for each claim is 

either three or four years. (American Master Lease LLC v. Idanta 

Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479 [three or four 

years for breach of fiduciary duty depending on whether breach is 

contractual or fraudulent]; Code Civ. Proc., §§ 343 [residual four

years for violation of Labor Code section 2860], 338, subd. (d) 

[three years for fraud], 337 [four years for breach of written 

employment agreement].)

Because the parties do not meaningfully dispute that the 

City’s cross-claims accrued when Robles was federally indicted in 

June 2003, and because it is undisputed that those cross-claims 

were filed in January 2006,5 the City’s cross-claims were timely 

filed under either limitations period.

5 Because we rely on the date the City filed its crosscomplaint, we need not consider the City’s arguments that its 
11

Robles resists this conclusion with what boils down to two

arguments.

First, he argues that all of the City’s claims are subject to 

the one-year statute of limitations governing a claim under 

Government Code section 1090. Specifically, Robles urges that 

(1) a violation of Government Code section 1090—which is 

premised on a public official’s involvement in transactions in 

which he has a financial interest—has a one-year statute of 

limitations when the remedy sought is a voiding or “forfeiture” of 

the unlawful transaction (Brandenburg v. Eureka Redevelopment 

Agency (2007) 152 Cal.App.4th 1350, 1364-1365; Code Civ. Proc., 

§ 340, subd. (a)); (2) the City’s four successful claims—while not 

claims under Government Code section 1090—are nevertheless 

all “rooted” in the same nucleus of facts as the City’s nowdismissed section 1090 claim; such that (3) section 1090’s oneyear limitations period must apply to all of the City’s similarly 

rooted claims. 

We reject this argument for several reasons. To begin, it is 

factually inapt. The City is not seeking in its cross-claims on 

which it was granted summary judgment a “forfeiture” or voiding 

of the transactions in which Robles was involved; instead, the 

City is seeking damages representing the amount that the City 

paid and Robles personally pocketed. Further, Robles’s argument 

is unsupported by the law. Robles cites no authority for the 

proposition that courts faced with a multitude of claims with 

different elements and different limitations periods must apply 

the shortest limitations period to all of them if they rest on the 

same nucleus of facts. What is more, Robles’s argument is 

cross-claims relate back to Robles’s filing of his complaint in June 

2005.
12

unsupported by logic: If his proffered “apply the shortest 

limitations period” rule applies only when a party at some point 

in a case alleges a claim with that limitations period (even if that 

claim is later dismissed), then litigants will never allege claims

with such short fuses (thereby nullifying our Legislature’s intent 

that such claims be available); but if his proffered rule applies 

even when a claim is never alleged, then trial courts will be 

tasked with scouring the statutory code books looking for possible 

claims with short limitations periods that could have been

brought under the same nucleus of facts alleged in a complaint. 

Second, Robles argues more specifically that the City’s 

Labor Code section 2860 claim is barred by the two-year statute 

of limitations in Code of Civil Procedure section 339, subdivision 

(1). He is wrong. This statute deems “[e]verything . . . an 

employee acquires by virtue of his employment” beyond wages to 

“belong[] to the employer,” thereby establishing a duty of loyalty 

owed by the employee that “must be read into every employment 

relationship.” (Lab. Code, § 2860; Lugosi v. Universal Pictures

(1979) 25 Cal.3d 813, 826, superseded by statute as stated in

Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 

1008.) Because the City’s Labor Code section 2860 claim seeks 

relief based “upon a liability created by statute” and does not 

seek forfeiture of the entirety of Robles’s compensation as an 

employee, a three-year limitations period applies. (Code Civ. 

Proc., § 338, subd. (a).) Robles’s responds that General Electric 

Co. v. Wilkins (E.D.Cal. Aug. 31, 2012, No. CV F 10-0674 LJO 

JLT) 2012 U.S. Dist. Lexis 124642, *46, states that “[t]he 

applicable statute of limitations on an action brought pursuant to 

. . . Labor Code section 2860 is two years pursuant to . . . Civil 

Procedure Code 339(1),” but Wilkins is not binding upon us, 
13

provides no authority or analysis for its assertion, and cites to a 

provision governing actions based upon “liability not founded 

upon an instrument of writing” (Code Civ. Proc., § 339, subd. (1)) 

when the liability here is grounded in statute and incorporated 

into a written employment contract.6

II. Grant of Summary Adjudication

As to both liability and damages, we independently 

conclude that the City was entitled to judgment as a matter of 

law on its cross-claims. 

A. Liability

The four cross-claims at issue in this case—breach of 

fiduciary duty, breach of Labor Code section 2860, fraud, and 

breach of the employment agreement—all rest on Robles’s yearslong scheme to circuitously extract kickbacks from contractors in 

exchange for using his influence to have the City award those 

contractors contracts with the City. In support of its claims, the 

City submitted declarations from Espinoza and two City 

managers, as well as supporting documentation—all 

substantiating the scheme and the amounts Robles received as 

recompense for his exertion of influence. (See Huong Que, Inc. v. 

Luu (2007) 150 Cal.App.4th 400, 410 [applying breach of duty of 

loyalty, as analogous to breach of fiduciary duty, to Labor Code 

section 2860 claim].) Robles did not contest any of this evidence 

in opposition to summary adjudication. As a result, the City’s 

undisputed evidence established the elements of its four cross6 Even if the Labor Code section 2860 claim were timebarred, this would not affect the judgment as to the City’s other 

three cross-claims, which are independently sufficient to sustain 

the damages award.
14

claims and summary adjudication of those claims was 

appropriate.

Robles responds with what we have grouped into three

arguments.7

First, he argues that the Ninth Circuit’s act of overturning 

most of the federal criminal charges against him mandates 

dismissal of the City’s cross-claims. We reject Robles’s attempt to 

equate apples and oranges. The Ninth Circuit vacated Robles’s 

convictions because the pertinent federal criminal law did not 

proscribe honest services fraud on the basis of undisclosed 

conflicts of interest. However, the City’s cross-claims are not 

based on federal criminal law, and hence are not subject to its 

limitations. Instead, the City’s cross-claims are based on breach 

of fiduciary duty, breach of Labor Code section 2860, fraud, and 

breach of the employment agreement under California law. 

Thus, the dismissal of Robles’s federal charges does not involve 

the identical claims or issues, and does not have the quasicollateral estoppel effect Robles asserts. (Accord, Boeken v. Philip 

7 For the first time in his reply brief on appeal, Robles makes 

a fourth argument that the Labor Code section 2860 claim is not 

viable because Robles was not acting in his “official capacity.” By 

waiting until his reply brief to raise this issue, Robles has waived 

it. (People v. Tully (2012) 54 Cal.4th 952, 1075.) This assertion is 

contradicted by the undisputed evidence in the record in any 

event.

For the first time at oral argument, Robles made a fifth 

argument that he cannot be civilly liable for the kickback scheme 

because his attempts to use his unofficial influence to personally 

profit were outside his official duties. The officiality of Robles’s

duties is not a defense to any of the claims on which the City was 

granted summary judgment.
15

Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [discussing elements 

of res judicata and collateral estoppel].) 

Second, Robles argues that the grant of summary 

adjudication was improper because the City’s motion was “pegged 

solely” on Espinoza’s declaration, because Espinoza’s recounting 

of the facts was “uncorroborated,” and because his recounting 

was not credible and could be contradicted.8

These arguments misunderstand the facts and the 

applicable law. Robles’s assertion that Espinoza’s declaration 

was the sole evidence submitted by the City is factually 

inaccurate, as the City also submitted two other declarations 

from City managers as well as documentation. Robles’s challenge 

to Espinoza’s declaration is legally untenable. Contrary to what 

Robles asserts, “direct evidence of one witness . . . is sufficient for 

proof of any fact,” including on summary judgment; corroboration 

is not generally required. (Evid. Code, § 411; Code Civ. Proc., § 

437c, subd. (e).) Although there is an exception to this rule “if the 

only proof of a material fact . . . is a[] declaration made by an 

individual who was the sole witness to that fact” (Code Civ. Proc., 

§ 437c, subd. (e)), Espinoza was not the “sole witness” to Robles’s 

kickback scheme because Robles was also a witness to that 

scheme. Yet Robles elected not to submit an opposing 

declaration. Robles’s efforts in his briefs on appeal to criticize the 

content of Espinoza’s declaration or Espinoza’s credibility 

8 At oral argument, Robles argued that Espinoza’s 

declaration was inadmissible hearsay. He is wrong. Declarations 

submitted in support of a summary judgment are not hearsay 

(Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541), 

and references to Robles’s statements in Espinosa’s declaration 

are admissible as the statements of a party opponent. 
16

(because Espinoza is a “felon”) are not “evidence” and hence 

cannot create a triable issue of material fact. (Kerns v. CSE Ins. 

Group (2003) 106 Cal.App.4th 368, 396 [“weighing of conflicting 

evidence . . . is a process which can never take place in the 

context of a summary judgment motion”]; People v. Prunty (2015) 

62 Cal.4th 59, 89 [conc. & dis. opn. of Cantil-Sakauye, C. J. 

[credited testimony may be rejected only if it was “‘“physically 

impossible or inherently improbable”’”].) As far as our review 

goes, Espinoza’s declaration is credible and undisputed. Robles

nevertheless cites Featherstone v. Southern Cal. Permanente 

Medical Group (2017) 10 Cal.App.5th 1150, 1159, and Evidence 

Code section 412 to assert that corroboration is required. He is 

wrong. Featherstone addressed how to prove discriminatory 

motive through shifting burdens of proof, which is irrelevant 

here. Evidence Code section 412 provides that evidence should 

be “viewed with distrust” if “stronger and more satisfactory 

evidence” is available; it does not stand for the proposition that 

corroboration is always required, for such a proposition would 

nullify Evidence Code section 411. 

Third, Robles argues that there are triable issues of fact as 

to whether he violated Government Code section 1090. This 

argument is irrelevant because the City’s cross-claim under this 

statute was dismissed after the trial court denied summary 

adjudication on it.

B. Damages

As part of its motion for summary adjudication, the City 

presented evidence—which Robles did not contest—that 

$2,022,588 of the money it paid to various City contractors 

ultimately ended up in Robles’s pocket, despite Robles not 

granting the City anything in exchange for that money. This 
17

amount—less the $318,319.16 the City was able to recover—

accordingly represents “the amount of damages actually caused 

by [Robles’s] fraud, misrepresentation, conversion or breach of 

fiduciary duty.” (Siry Investment, L.P. v. Farkhondehpour (2020) 

45 Cal.App.5th 1098, 1135, revd. in part on other grounds by Siry 

Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333.)

Robles resists this conclusion with five arguments.

First, he argues that the City never proved actual harm, 

loss, or damages. He is wrong. As explained above, the City 

established that, through his intermediary Espinoza, Robles 

siphoned off a portion of the contract funds the City paid to 

contractors despite Robles providing nothing to the City in 

exchange for those funds. But for Robles’s kickback scheme, he 

would not have received $1,704,268.84 in City money. (See 

United States v. Gaytan (9th Cir. 2003) 342 F.3d 1010, 1012 & fn. 

3 [“bribe money” belongs to local government, and so long as 

defendant keeps it, the local government “suffers an actual 

loss”].) 

Second, Robles argues that the damages award is 

impermissible because it constitutes “restitution” as well as a 

“forfeiture” under the time-barred Government Code section 1090 

claim. Again, he is wrong. We reject Robles’s attempt to 

invalidate the award by assigning different labels to it; no matter 

what label is used, the amount awarded represents what Robles 

took from the City while giving nothing in exchange, and that

amount is validly awarded as damages. There was no forfeiture 

under Government Code section 1090 in any event because the 

court did not invalidate the contracts; the City was awarded 

damages representing the amount Robles profited by taking the 

City’s funds.
18

Third, Robles argues that the City failed to prove that he 

personally benefitted from the scheme. This is irrelevant, 

because the pertinent measure of damages is the City’s loss, not 

Robles’s personal gain. Further, this argument ignores the 

undisputed evidence before the trial court supporting the finding 

that Robles also personally gained by the amount he siphoned 

from the City.

Fourth, Robles argues that the City is not entitled to any

damages on its Labor Code section 2860 claim because (1) Robles 

did not “acquire[]” any City funds from the contracts he 

facilitated, and (2) the City’s sole remedy for violations of that 

provision is an accounting. As to the first sub-argument, Robles’s

execution of his scheme while serving as an elected treasurer and 

employed deputy city manager fits squarely within the scope of 

Labor Code section 2860’s prohibition against an “employee 

acquir[ing]” anything “lawfully or unlawfully” “by virtue of his 

employment.” (Lab. Code, § 2860.) More to the point, Robles 

ended up with close to $2 million in City funds that he should not

have received. As to the second sub-argument, an accounting is 

one remedy for violating that prohibition; it is not the only 

remedy. (Id., § 2861.) 

Fifth and lastly, Robles argues that there are triable issues 

regarding the City’s claim for punitive damages. This argument 

is irrelevant because the City was not awarded punitive 

damages. 
19

DISPOSITION

The judgment is affirmed. The City is entitled to its costs 

on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ