Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

No. 88-6029.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, BOOCHEVER and REINHARDT, Circuit Judges

MEMORANDUM^* 

Jacobson wanted to buy Joyce, an adult Asian elephant, from the Los Angeles City Zoo. Zoo officials wanted to get rid of Samson, a dangerous adult African elephant. The officials and Jacobson agreed that Jacobson could have Joyce, if he took Samson and provided the zoo with four baby elephants.¹  Jacobson also was required to find a new home for Samson. He found a Mexican zoo that would take the elephant, but Samson died en route to his new home. Samson was buried before the zoo was notified of his death, and there was no autopsy. When Dr. Thomas, the director of the zoo, learned of Samson's death, he refused to continue the transaction.

Jacobson sued the City of Los Angeles for breach of contract, seeking damages and specific performance. The district court granted partial summary judgment on the ground that the document the parties exchanged was not a contract, and in the alternative, on the ground that if the document were a contract, it would not have been enforceable because zoo officials did not have authority to enter into a contract with Jacobson. The court concluded, however, that Jacobson might be able to prove the City was equitably estopped from denying the existence of the contract. After a bench trial on this issue, the district court found Jacobson suffered no damages and therefore equitable estoppel did not apply. We affirm.

Whether a document constitutes a contract is a question of law reviewed de novo. See Kaylor v. Crown Zellerbach, Inc., 643 F.2d 1362, 1366 (9th Cir. 1981). The document at issue is a letter. The body of the letter informed Jacobson " [t]he City of Los Angeles requires that a letter of offer be received for all animal purchases, sales and exchanges," and instructed Jacobson to sign the letter and return it. The bottom portion of the letter was in the form of the offer that the body of the letter invited. It recited the terms of a proposed exchange of elephants between Jacobson and the City and provided a place for Jacobson's signature.

Jacobson signed and returned the letter, offering to make the proposed exchange. See Richards v. Flower, 193 Cal. App. 2d 233, 236-37 (1961). No contract was formed, however, because Jacobson's offer was never accepted. See id. at 238; Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 538-39 (9th Cir. 1983). The zoo officials did not have authority to accept Jacobson's offer, and no one who had the authority ever accepted it.

Because we conclude the letter was not a contract, we do not decide whether the letter, if a contract, would have been enforceable.

It is not clear under California law whether the doctrine of equitable estoppel can be applied to the City. Compare Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 353 (1930) (municipality cannot be estopped from denying enforceability of contracts beyond its powers) with Phillis v. City of Santa Barbara, 229 Cal. App. 2d 45, 57 (1964) (city estopped from asserting statute of limitations against employee who followed city's advice). Even if the doctrine could be applied, it would not be applicable on the facts of this case. To estop the City from denying the existence of a contract, Jacobson must have relied upon the zoo's conduct to his injury. See Driscoll v. City of Los Angeles, 67 Cal. 2d 297, 305 (1967). The district court found Jacobson suffered no injury because the loss, if any, was sustained by a third party who was not party to the suit. This finding is not clearly erroneous.

Since there was no contract and equitable estoppel does not apply, we do not reach the issues of damages and specific performance.

AFFIRMED.