Opinion
G055501
10-31-2019
AMERICAN GROUND TRANSPORTATION INC., Plaintiff and Appellant, v. CITY OF ANAHEIM, Defendant and Respondent.
Cazzell & Associates, Attorneys and Maryann Cazzell for Plaintiff and Appellant. Robert Fabela, City Attorney, Moses W. Johnson IV, Assistant City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00688977) OPINION Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Reversed in part, affirmed in part, and remanded with directions. Cazzell & Associates, Attorneys and Maryann Cazzell for Plaintiff and Appellant. Robert Fabela, City Attorney, Moses W. Johnson IV, Assistant City Attorney, for Defendant and Respondent.
The procedural history of this case is tortured. American Ground Transportation, Inc., dba 24/7 Taxi Cab (AGT), along with three other companies, applied for a franchise with the City of Anaheim (City) to operate taxicabs. The City awarded franchises to the other three companies, granted a rehearing request from one of the companies, re-awarded franchises to the same three companies, and denied AGT's rehearing request. AGT sued the City alleging its taxicab franchise ordinance was unconstitutional, both facially and as applied, the City discriminated against it, and the City interfered with its prospective economic advantage. At the first writ trial, the trial court denied relief on four of the causes of action, granted relief on one cause of action, which required the City to take further action on the franchise applications, and indicated one cause of action was ripe for summary adjudication.
The City conducted a rehearing, and because one of the companies ceased operations, awarded franchises to the other two companies, again denying AGT a franchise. After the trial court granted the City's motion for summary adjudication on the sixth and final cause of action, the court permitted AGT to file a supplemental complaint with a seventh cause of action. At the second writ trial, the court denied relief on that claim and entered judgment for the City. AGT appealed.
As we explain below, we reverse the trial court's order denying relief on AGT's seventh cause of action. In all other respects, the matter is affirmed. We remand for further proceedings consistent with this opinion.
FACTS
I. The City's Taxicab History
The City initially regulated taxicabs through a permit system (Anaheim Mun. Code (AMC), ch. 4.72). In February 1998, the City transferred its taxicab regulatory authority to the Orange County Taxi Administrative Program (OCTAP).
The same year, South Coast Cab Co. (SCC), which had previously tried to obtain a City permit, filed a lawsuit alleging, in part, ethnic bias. (SCC v. The City of Anaheim (Dec. 19, 2000, G026197) [nonpub. opn.].) Savvas and Irene Roditis owned SCC. In SCC v. The City of Anaheim, supra, G026197, another panel of this court held the City's denial of SCC's application for 117 taxicab permits was unconstitutional and ordered the trial court to enter judgment directing the City to issue SCC 117 permits. Four months later, SCC began operating in the City.
For ease of reference we refer to the Roditises by their first names.
After SCC filed suit but before this court filed its opinion in SCC v. The City of Anaheim, supra, G026197, the City began converting to a franchise system—the City would award a franchise to a maximum of three companies through a request for proposal (RFP) process.
The month after SCC began operating in the City, the City adopted its taxicab franchise ordinance as AMC Chapter 4.73. As to existing permittees, AMC section 4.73.210.0702 reduced the number of permits to 30 on May 31, 2002, and AMC section 4.73.210.0703 reduced the number of permits to zero on May 31, 2006. In other words, if SCC did not apply for a franchise, which it did not, it could not operate in the City after May 31, 2006. SCC filed for bankruptcy the month after its permits expired.
In a nonpublished opinion, SCC v. The City of Anaheim (Apr. 17, 2003, G030551), another panel of this court affirmed the trial court's denial of SCC's motion for a preliminary injunction to prevent the elimination of all but 30 of SCC's permits.
In February 2002, operations under the City's first taxicab franchise began. The three franchisees were Yellow Cab of Greater Orange County (Yellow Cab) (130 permits), A White and Yellow Cab, Inc., dba A Taxi Cab (White Cab) (50 permits), and Cabco, Inc., dba California Yellow Cab (Cabco) (50 permits).
In late 2005, AGT began offering taxicab service in Orange County. AGT's president and chief executive officer was Konstantinos Roditis, Savvas and Irene's son. Konstantinos and Irene were co-owners of AGT. AGT secured all required licenses from OCTAP to operate in every OCTAP member city.
In 2009, the City issued an RFP regarding the possible redistribution of White Cab's 50 permits. Konstantinos appeared at the City's City Council (City Council) hearings to argue the City Council should award those permits to AGT. Yellow Cab and Cabco argued the City Council should award those permits to them. The City Council allowed White Cab to keep the 50 permits, and it awarded Yellow Cab an additional 25 permits (155 permits). The City Council also passed a resolution continuing the franchises of Yellow Cab, White Cab, and Cabco until February 14, 2012. II. The City's 2012 RFP
In preparation for the 2012 RFP for taxicab services, the City retained Nelson/Nygaard Consultants (consultant) to assess the City's taxicab needs and to assist with the RFP. The City also appointed six people to serve on the Taxi Advisory Committee (TAC). After two substitutions, the TAC consisted of the following people: David Meek—Center Manager; Joe Perez—Anaheim Community Services Board; Paul Sanford—Anabella Hotel, Director of Operations; Sergeant Chris Pena—Resort District Community Policing Team; Hilda Luna—Western Medical Center, Director of Social Services; and Sandra Sagert—Community Preservation Manager.
In March 2012, the City posted an RFP. The RFP stated the TAC would evaluate each applicant's qualifications and competence based on written submissions, site visits, and interviews, and the TAC would present its findings and recommendations to the City Council. The City Council would conduct a public hearing to consider the applications and the TAC's recommendations, and render a decision.
AMC section 4.73.070.020 provided in relevant part as follows: "The City Council may receive the recommendations of any current or future advisory body established by the City Council or the City Manager to examine and evaluate applications for a franchise and consider such recommendations in reaching its decisions. The City Council may accept, reject or amend any such recommendations. The criteria for evaluating applications for a franchise may be established by such evaluation body subject to the approval thereof by the City Council. The decision of the City Council upon the granting or rejection of any application for a franchise shall be final and conclusive."
The RFP provided the following minimum requirements for obtaining and maintaining a franchise: 1. start-up requirements, 2. vehicle requirements, 3. driver requirements, 4. dispatching, 5. complaint procedures, 6. record-keeping and reporting, and 7. insurance and indemnification. The RFP stated the TAC would score the proposals on a 100-point scale based on the following measures: 1. company experience (10 percent), 2. management experience (10 percent), 3. financial capacity and stability (15 percent), 4. management and quality assurance (30 percent), 5. facilities and equipment (25 percent), 6. fleet sustainability (5 percent), and 7. fleet accessibility (5 percent). Each of the seven categories included multiple factors for the TAC to consider. The City's contact person for the RFP was Sagert, who was a TAC member.
The following month, the TAC evaluated the four applications and provided its report to the City Council. In addition to the applications and the consultant's demand study, the TAC considered the results of the consultant's site visit and interview of each company. The TAC provided a score for each category and a total score. The TAC's total scores were as follows: Yellow Cab—90.5, Cabco—85.5, White Cab—78.75, and AGT—62.25. The TAC recommended the City Council award franchises to the current three franchise holders and award each company the following number of permits: Yellow Cab—135, White Cab—60, and Cabco—60. The TAC recommended AGT not receive a franchise because it did not demonstrate how it satisfied the RFP requirements, including failing to submit required documentation.
AMC section 4.73.045.010 prohibited the City from awarding more than three franchises.
The following month, the City's Planning Department recommended the City Council adopt the TAC's recommendations. At a public hearing, the City Council followed the TAC's recommendations and awarded 10-year franchises to Yellow Cab, White Cab, and Cabco, but it rejected the TAC's recommendations concerning the number of permits and awarded each company the number it then held. The City Council adopted three ordinances awarding the three franchises.
The following month, Cabco filed a request for rehearing challenging the City Council's award of 50 permits to White Cab because White Cab did not submit the required financial information (AMC, § 1.12.100). The City Council granted Cabco's request for rehearing, which vacated its award of the three franchises (AMC, § 1.12.100.090). The City Council allowed all four companies to submit additional information, but it did not reconvene the TAC. The City Planning Department prepared a staff report detailing the additional information. After a public hearing, the City Council awarded franchises to the same three companies with the same number of permits. The City Council adopted ordinance Nos. 6252 (Yellow Cab), 6253 (Cabco), and 6254 (White Cab) awarding the franchises.
The City subsequently investigated White Cab's financial solvency, which culminated in a hearing officer's recommendation the City not terminate its franchise. The City adopted the hearing officer's recommendation.
AGT filed a request for rehearing alleging the City Council did not consider its additional information. The City Council denied AGT's request for rehearing. III. First Writ Trial & City Rehearing
AGT filed its first amended complaint (FAC) in March 2014. The FAC alleged the following six causes of action: declaratory relief-unconstitutional ordinance (first); petition for writ of mandate or prohibition-unconstitutional ordinance (second); declaratory relief-unreasonable, arbitrary, and capricious application of ordinance (third); petition for writ of mandate or prohibition-unreasonable, arbitrary, and capricious application of ordinance (fourth); unlawful discrimination-arbitrary and unreasonable application of ordinance (fifth); and interference with prospective economic advantage (sixth). After the trial court overruled the City's demurrer, the City filed an answer.
The following year, the parties litigated AGT's motion to compel discovery, which the trial court denied. The next year, AGT posted jury fees, 18 months after the initial case management conference. The City filed a "'mini' administrative record", trial brief, and motion in limine. AGT filed a trial brief and opposition to the in limine motion. The City filed an opposition to AGT's trial brief. The next day, the parties filed additional briefs.
Meanwhile, in early April 2016, the City received information White Cab would cease operating. Sagert sent White Cab's owner a letter advising him the City would suspend its franchise.
There was a bench trial on April 29, 2016. After counsel argued, the trial court took the matter under submission.
In a June 20, 2016, minute order, the trial court stated it conducted a hearing where it heard only oral argument, and it read and considered the briefs and the administrative record. The court explained AGT asserted both a facial and as applied challenge to AMC section 4.73. The court denied relief on AGT's first, second, third, and fifth causes of action. With respect to the sixth cause of action, the court opined "it is ripe for summary adjudication, or, simply hearing as a court trial on the merits, given jury fees have not been posted, and thus jury trial is waived." As to the fourth cause of action, the court ruled that at rehearing the City did not comply with AMC section 1.12.100, the City did not have the TAC rescore the applications, and the City's decision appeared arbitrary and without evidentiary support. The court concluded as follows: "The City . . . is ordered to set aside franchise ordinance[] [Nos.] 6252, 6253 and 6254, and conduct a rehearing pursuant to [AMC,] [§] 1.12.100. The [c]ourt sets a status conference for July 11, 2016[,] at 9:30 a.m. in [department] C21 to discuss with the parties the best manner in which to proceed to minimize disruption of taxicab service pending the City's determination as to how it will proceed (i.e., whether by rehearing, new RFP or otherwise). The [c]ourt notes that this has been pending since 2013, and the franchises are 10 years in duration. [¶] The [c]ourt therefore STAYS ENFORCEMENT OF THIS ORDER pending discussion on July 11 with counsel as to how the City will address the Court's findings." Later, the court issued its statement of decision. AGT never objected to the court's tentative or final statement of decision.
The court overruled the City's objections to the statement of decision.
In a minute order dated July 1, 2016, the trial court, on its own motion, continued the status conference to July 25, 2016. On that day, the trial court conducted a status conference with counsel where they discussed AGT's motion for relief from waiver of a jury trial. The court continued the status conference to October 17, 2016, and set a trial date for the following year. The court stated the "[s]tay remains in effect until [October 17, 2016]."
Over one month after the trial court's order ruling on AGT's six causes of action, AGT filed a motion for relief from waiver of a jury trial on the grounds of counsel's excusable neglect. AGT requested relief from waiver of the fifth and sixth causes of action—AGT sought relief on the fifth cause of action despite the fact the court denied relief on that claim and ruled in the City's favor. The City opposed the motion. The trial court later granted AGT's motion for relief from waiver of a jury trial.
Meanwhile, on August 29, 2016, Sagert sent White Cab's owner a letter advising him the City would hold a hearing on September 27, 2016, to consider terminating the franchise. On September 8, 2016, the City published a notice of public hearing set on September 27, 2016, to do the following: (1) consider terminating White Cab's franchise; and (2) a de novo rehearing to consider the taxicab franchises as directed by the trial court. The TAC's rescoring was as follows: Yellow Cab—90, Cabco—85, White Cab—71.6, and AGT—66.6. The TAC recommended awarding Yellow Cab 180 permits and Cabco 75 permits.
The City Council agenda report for September 27, 2016, provided as item No. 27 a hearing to terminate White Cab's taxicab franchise and item No. 28 a rehearing to consider taxicab franchises. In an agenda report to the City Council concerning item No. 27, the City Planning Department recommended terminating White Cab's franchise. In an agenda report to the City Council concerning item No. 28, the City Planning Department recommended the City Council conduct a rehearing pursuant to AMC section 1.12.100 and accept the TAC's recommendations.
At the meeting, Konstantinos submitted a letter to the City Council objecting to item No. 28 because the TAC rescoring report was not posted as required by the Ralph M. Brown Act (Gov. Code, § 54950 et seq. (Brown Act)). He received the report that afternoon and was thus unprepared to respond. Konstantinos also argued the following: "I'd like to add in since [White Cab] has been out of business, from what our knowledge is, 25 permits have already been temporarily relocated to Yellow Cab and [Cabco], since their suspension, which is a clear violation of [AMC section] 4.73.050."
The City Council considered item No. 27 and terminated White Cab's franchise. The City Council considered item No. 28 and Konstantinos' objection. Although the City's attorney opined the City Council did not violate the Brown Act, the City Council continued item No. 28 to the October 18, 2016, meeting.
In a September 28, 2018, minute order, the trial court, on its own motion, continued the status conference to October 20, 2016. The court did not mention it stayed enforcement of its June 20, 2016, order.
On October 13, 2016, the trial court conducted a status conference with counsel. The City's attorney informed the court the City Council was scheduled to conduct a rehearing five days later, on October 18, 2016. The court set a status conference for December 1, 2016. The court stated the "[s]tay remains in place."
In an agenda report to the City Council concerning what was then item No. 38, the City Planning Department recommended the City Council conduct a rehearing pursuant to AMC section 1.12.100 and accept the TAC's recommendations. At the October 18, 2016, meeting, the City Council considered item No. 38 and conducted a rehearing, considering the TAC's rescoring and recommendations. Konstantinos objected to the TAC's recommendations. After the public hearing was closed, Belmer stated the TAC was comprised of six independent professionals who prepared an objective recommendation. The City Council introduced ordinances, No. 6388 awarding Yellow Cab 180 permits, and No. 6389 awarding Cabco 75 permits. Later, the City Council adopted the ordinances, and they went into effect the following month. IV. Motion for Summary Judgment/Adjudication & Motion to Augment
The City filed a motion for summary judgment/adjudication on the fourth, fifth, and sixth causes of action and a separate statement. A few months later, AGT's present counsel substituted into this case.
AGT filed a motion to augment the record and for leave to file revised claims, supported by Konstantinos' declaration, and a request for judicial notice. The City filed an opposition and a request for judicial notice. AGT filed a reply supported by Konstantinos' declaration and notice of lodging the second administrative record.
AGT filed opposition to the City's motion for summary judgment/adjudication supported by Konstantinos' declaration. In its opposition, AGT argued it should be allowed to conduct "targeted, limited discovery," which included deposing Sagert concerning the use of White Cab's 50 permits. AGT filed a response to the separate statement and a request for judicial notice.
The trial court held a hearing on the City's motion for summary judgment/adjudication and AGT's motion to augment. As relevant here, before discussing the merits of the motion, the trial court stated the following: "Yeah, we'll get to the [motion for summary judgment] later. Because at that point I want to also just talk about the fifth cause of action because I decided it in the writ proceeding. And I'm not really remembering why, because I went back and I looked at it, and it wasn't part of the writ and it wasn't part of the -- it wasn't [declaratory] relief. But I don't know that anybody ever took exception to it [until] recently." AGT's attorney replied, "I take exception to it." After additional argument, the court took the matter under submission.
Over the course of a few weeks the trial court issued three minute orders ruling on the motions. First, the court granted in part and denied in part AGT's motion to augment and motion for judicial notice. The augmentation became what the parties refer to as administrative record No. 2, evidence concerning what transpired after the trial court's June 20, 2016, order. The court allowed AGT to file a seventh cause of action, "an amended writ claim." The court stated, "It seems the most efficient way to proceed, and the one both sides prefer, is to amend the pending writ claim to have the recent acts of [the] City reviewed, that is, those taken in response to the June 20, 2016[,] order." The court later repeated "the amended writ claim . . . will only review actions taken by the City in response to the June 20, 2016[,] order." Second, the trial court granted the City's motion for summary adjudication on the sixth cause of action for interference with prospective economic advantage. The court denied as moot the motion on the fourth and fifth causes of action because the court had previously ruled on them. The court also granted various motions for judicial notice. AGT objected to the court's ruling on the motion for summary adjudication. Finally, the trial court denied as moot AGT's request to take Sagert's deposition because it had already ruled on the fifth cause of action. V. Supplemental Complaint & Second Writ Trial
AGT filed a supplemental complaint adding a seventh cause of action for writ of mandate. The City filed an answer and trial brief (with a request for judicial notice), and lodged administrative record No. 2. AGT filed a trial brief, arguing "[t]here is only one pivotal issue in this [w]rit"—whether the City was required to issue an RFP for White Cab's 50 permits. The City and AGT filed more briefs.
The trial court conducted a bench trial on the seventh cause of action. As relevant here, it stated the following: "One of [AGT's] arguments is that [the City] was required to issue a new RFP to award the 50 [White Cab] permits due to its termination, and I'm not sure that was within the scope of this additional hearing because, as of my June 20[, 2016] order, I don't think that there was any issue whether [White Cab] was in business or not. I might have missed that." The court took the matter under submission.
A week later, the trial court in a minute order issued its decision denying relief on AGT's seventh cause of action. The court disagreed with AGT's characterization of the issue. The court stated it granted AGT the right to submit an amended writ claim on the issue of whether the City complied with the court's June 20, 2016, order to set aside the three franchise ordinances and conduct a rehearing pursuant to AMC section 1.12.100. In response to AGT's framing of the issue, which the court concluded AGT preserved, the court agreed with the City that its June 20, 2016, order "already 'set aside' [White Cab's] '50 franchise licenses' as of [June 20, 2016]." The court concluded the City complied with the court's June 20, 2016, order. The court ruled the issue of whether AGT received a fair hearing was not before it, AGT waived the issue because it did not raise the issue before the City Council, and in any event, AGT did not provide evidence of actual bias.
AGT filed an objection to the trial court's ruling. Later, the court overruled AGT's objection and adopted its tentative decision as its statement of decision. The court entered judgment, and the City gave notice. AGT appealed.
DISCUSSION
I. Mootness
In its respondent's brief, filed August 2018, the City claims the appeal "may be moot" because the Legislature amended Government Code section 53075.5 to be effective January 1, 2019. "Subsequent legislation can render a pending appeal moot. [Citation.]" (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 560.)
In Assembly Bill No. 1069, the Legislature amended Government Code section 53075.5 effective January 1, 2019, to limit a jurisdiction's licensing authority to those companies substantially located in the jurisdiction. (Stats. 2017, ch. 753, § 3.) We grant AGT's July 2019 request for judicial notice of Assembly Bill No. 1069 (2017-2018 Reg. Sess.). (Evid. Code, § 452, subd. (b).)
In its respondent's brief, filed before the Legislature's amendment to Government Code section 53075.5 became effective, the City asserted the appeal "may be moot" because it "may no longer be able to even have a taxicab franchise in 2019." At oral argument, the City stated the appeal is not moot. We grant the City's May 2019 request for judicial notice of City ordinance No. 6456, which amended AMC chapter 4.73. (Evid. Code, § 452, subd. (b).) We note the City still has a franchise system (AMC, § 4.73.020.), and the appeal is not moot. II. AMC section 4.73—Constitutionality
AGT argues AMC section 4.73 was facially unconstitutional and preempted. Not so. A. Background
The first cause of action alleged the City did not have the authority to award franchises to taxicab companies to operate in the City while excluding other taxicab companies from operating in the City and that AMC section 4.73 was vague. The second cause of action requested the trial court to declare AMC section 4.73 void. The FAC's general allegations, incorporated by reference into the first and second causes of action, alleged California franchise law preempted AMC section 4.73.
In its trial brief, AGT asserted California law did not authorize the City to enact AMC section 4.73. AGT also asserted California law preempted AMC section 4.73 (Cal. Const., art. XI, §§ 5, 7; Veh. Code, § 21100 et seq.; Pub. Util. Code, § 6001 et seq.; Gov. Code, § 53075.5). Finally, it asserted AMC section 4.73.045.030 was vague because the process for granting applications was subjective and arbitrary. In its trial brief, the City replied Government Code section 53075.5 and Vehicle Code sections 21100 and 21112 authorized the City to enact AMC section 4.73 and did not preempt it. The City added AMC section 4.73.045.030 provided sufficient criteria for determining whether additional taxicabs were needed. The trial court rejected AGT's constitutional challenges to AMC section 4.73. B. Law & Analysis
We independently review whether an ordinance is facially unconstitutional and whether it is preempted. (Griffith v. City of Santa Cruz (2012) 207 Cal.App.4th 982, 990.) Vehicle Code section 21100, subdivision (b), authorizes a city to adopt an ordinance that provides for the "[l]icensing and regulating the operation of vehicles for hire and drivers of passenger vehicles for hire." Government Code section 53075.5, at the time the City enacted AMC section 4.73, provided as follows. Subdivision (a) of that section stated in relevant part "every city or county shall protect the public health, safety, and welfare by adopting an ordinance or resolution in regard to taxicab transportation service." (Italics added.) Subdivision (b)(1) of that section stated, "Each city or county shall provide for, but is not limited to providing for, the following: [¶] (1) A policy for entry into the business of providing taxicab transportation service." (Italics added.) Subdivision (b)(1) continued by providing a non-exhaustive list of provisions the ordinance could include.
Government Code section 53075.5 expressly authorized the City to enact an ordinance that provided a process for taxicab companies to enter the City's taxicab market. A city can adopt a process by which it grants the right to operate to some companies and excludes others. (Luxor Cab Co. v. Cahill (1971) 21 Cal.App.3d 551, 558 ["use of streets by taxicabs is a privilege that may be granted or withheld without violating either due process or equal protection"].) AGT cites to no authority, and we found none, prohibiting the City from both joining OCTAP and creating a franchise system for taxicab operations. Indeed, at the time the City joined OCTAP and enacted AMC chapter 4.73, Government Code section 53075.5, subdivision (d), stated nothing prohibited a city "from adopting additional requirements for a taxicab to operate in its jurisdiction." The Legislature did not occupy the field. AGT cites to no conflict between AMC section 4.73 and any other law. (Cal. Const., art. XI, §§ 5, 7.)
This provision was in effect from January 1, 1996 (Sen. Bill No. 46 (1995-1996 Reg. Sess.) § 1), to January 1, 2019 (Assem. Bill No. 1069 (2017-2018 Reg. Sess.) § 2 [subd. (f)]).
AGT does not dispute there was a rational relationship between AMC section 4.73 and the City's legitimate interest in protecting the public welfare regarding taxicab services or that it provided sufficient criteria for granting applications. AMC section 4.73 was neither facially unconstitutional nor preempted, and thus the trial court properly denied relief on AGT's first and second causes of action. III. Supplemental Complaint—Seventh Cause of Action
AGT argues the trial court erred by denying relief on its seventh cause of action for writ of mandate because the City violated the AMC when it failed to issue an RFP for White Cab's 50 permits. We agree. A. Preservation of Issue for Appellate Review
We note AGT does not argue the City Council was not authorized to conduct a rehearing and award Yellow Cab and Cabco a portion of the 205 taxicab permits. AGT's argument is that the City Council unlawfully awarded White Cab's 50 permits to Yellow Cab and Cabco without first issuing an RFP for those permits.
The City asserts AGT waived appellate review of this because it did not raise the issue at either the September 27, 2016, or October 18, 2016, City Council hearings. It is elementary that issues cannot be raised for the first time on appeal. If a party does not raise an issue at the city council hearing, the party cannot raise the issue for the first time in the trial court. (See In re Electric Refund Cases (2010) 184 Cal.App.4th 1490, 1501-1502.) AGT timely raised the issue.
Here, at the September 27, 2016, City Council hearing, during the public comment period, Konstantinos stated, "I'd like to add in since [White Cab] has been out of business, from what our knowledge is, 25 permits have already been temporarily relocated to Yellow Cab and [Cabco], since their suspension, which is a clear violation of [AMC section] 4.73.050." Contrary to the City's claim, AGT did raise the issue before the City Council. Like the trial court, who initially doubted whether this issue was properly before it, we conclude AGT preserved this issue for review because it raised the issue before the City Council and before the trial court in its seventh cause of action. B. The Trial Court's June 20, 2016, Order
The City contends a franchise was not open when the City Council terminated White Cab's franchise on September 27, 2016, because the trial court had previously set aside White Cab's franchise with its order on June 20, 2016. We disagree.
Code of Civil Procedure section 918, subdivision (a), gives the trial court discretionary power to stay the enforcement of any judgment or order. (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 482.) "A stay of enforcement is the suspension of the right to enforce the judgment by execution or other means. [Citations.]" (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 221, p. 289.)
On June 20, 2016, the trial court ordered the City to set aside the three ordinances awarding Yellow Cab, White Cab, and Cabco franchises and conduct a rehearing pursuant to AMC section 1.12.100. After the court scheduled a status conference to discuss whether the City would proceed by rehearing or an RFP, the court stated, "The [c]ourt therefore STAYS ENFORCEMENT OF THIS ORDER pending discussion on July 11 with counsel as to how the City will address the Court's findings."
Although the trial court ordered the City to set aside the three franchises and conduct a rehearing, the court immediately stayed enforcement of that order pending a status conference scheduled a few weeks later where the court envisioned the City's attorney would advise the court how it would proceed. The effect of the court's stay was to suspend the City's power to enforce the order. And the court's order remained stayed. The trial court issued a number of minute orders from July 2016 to October 2016, and those orders indicated the court's stay of enforcement of its June 20, 2016, remained in effect until at least October 13, 2016. The City's claim on appeal that the court's June 20, 2016, order set aside White Cab's franchise is meritless because the court stayed enforcement of its order. C. The City's Termination of White Cab's 50 Permits
Throughout its brief, the City repeats it did what the trial court ordered it to do—conduct a rehearing pursuant to AMC section 1.12.100. Aside from the fact the court stayed enforcement of its order, the court's order was not as "clear" as the City suggests. Although the court initially ordered the City to conduct a rehearing, the court scheduled a status conference for the City's attorney to advise the court "how it will proceed (i.e., whether by rehearing, new RFP or otherwise)." Based on the record before us, it does not appear the City ever advised the court how it was going to proceed until after the City terminated White Cab's franchise and just five days before the City Council awarded franchises to Yellow Cab and Cabco.
"A public entity's 'award of a contract, and all of the acts leading up to the award, are legislative in character.' [Citation.] '[T]he letting of contracts by a governmental entity necessarily requires an exercise of discretion guided by considerations of the public welfare.' [Citation.] '[T]he mere fact that a proceeding before a deliberative body may possess certain characteristics of the judicial process does not convert legislative action into an adjudication of a private controversy. [Citations.]' [Citation.] Thus, both the award of the contracts and the decision to reject the protest should be considered legislative actions. [¶] Review of a local entity's legislative determination is through ordinary mandamus under [Code of Civil Procedure] section 1085. 'Such review is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support. [Citation.]' [Citation.] This test has also been formulated to add an inquiry whether the agency's decision was 'contrary to established public policy or unlawful or procedurally unfair.' [Citation.] However the test is formulated, '. . . the ultimate questions, whether the agency's decision was arbitrary, capricious or entirely lacking in evidentiary support, contrary to established public policy or unlawful or procedurally unfair, are essentially questions of law. With respect to these questions the trial and appellate courts perform essentially the same function, and the conclusions of the trial court are not conclusive on appeal. [Citations.]' [Citation.] The only exception is where there are foundational matters of fact as to which the trial court's findings could be conclusive on appeal, where supported by substantial evidence. [Citation.]" (Mike Moore's 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303, fn. omitted.)
As we explain above, the trial court's June 20, 2016, order did not vacate White Cab's franchise. What was the effect then of the City Council's September 27, 2016, termination of White Cab's franchise?
AMC section 4.73.050 provides in relevant part as follows: "Within any application period specified in subsection .030 of [s]ection 4.73.045 . . ., any applicant seeking to operate as a franchisee, or any then existing franchisee seeking to increase the number of taxicabs it is authorized to operate, may apply to the City by filing with the . . . Planning Department, upon forms supplied by the City and in accordance with the request for proposals issued by the City therefor, a verified application containing at a minimum the following information which shall be binding upon and enforceable upon the applicant in any franchise awarded pursuant to such application."
AMC section 4.73.045.030, governing franchise application periods, provides, in relevant part, as follows: "The application period for taxicab franchise applications shall be deemed open as of either (i) the date of adoption of a resolution of public convenience and necessity pursuant to subsection .040 below, (ii) the [60th] day prior to the date of expiration of any existing franchise or existing permit, or (iii) the date any City Council decision terminating any existing franchise or existing permit becomes final." (Italics added.)
The City Council terminated White Cab's franchise on September 27, 2016. At that point, the application period for a taxicab franchise was open pursuant to AMC section 4.73.045.030(iii), and White Cab, Cabco, or AGT could file an application for a franchise to operate 50 taxicabs in the City. The only thing that stopped the City Council from awarding those 50 permits on that same evening was Konstantinos' objection the City Council violated the Brown Act. The City Council proceeded with awarding 25 permits each to Yellow Cab and Cabco the following month. Based on a plain reading of AMC section 4.73.045.030(iii), we conclude the City Council's award of 25 permits each to Yellow Cab and Cabco on October 18, 2016, violated AMC chapter 4.73 and was thus unlawful. We vacate the City Council's award of 25 permits to Yellow Cab and 25 permits to Cabco and order the City to issue an RFP for those 50 taxicab permits. We express no opinion on the award of allocation of those permits. IV. Bias
AGT asserts the "[City's] 2016 refusal to grant [its] [a]pplication for at least [50] franchise stickers" was the result of bias. The City contends AGT waived appellate review of this issue and alternatively, AGT did not demonstrate actual bias. We agree with the City on both counts. A. Waiver
"An issue not raised at an administrative hearing, including . . . bias, may not be raised in later judicial proceedings. [Citations.]" (Southern Cal. Underground Contractors, Inc. v. City of San Diego (2003) 108 Cal.App.4th 533, 549 (SCUC).)
AGT asserts it preserved review of this issue based on the following: (1) Konstantinos' comments at the October 18, 2016, City Council hearing; (2) its opening brief on the supplemental complaint for the seventh cause of action; (3) AGT's counsel's oral argument at the second writ trial; and (4) William Fitzgerald's comments at the February 2012 and September 2016 City Council hearings.
AGT's allegations of bias in its trial court documents and argument at the bench trial do not preserve this issue because it had to raise the issue before the City Council. (SCUC, supra, 108 Cal.App.4th at p. 549.) With respect to Fitzgerald, according to the record before us, he was the spokesperson for "Anaheim Homeowners Maintaining our Environment" and did not represent AGT in any capacity—the record before us demonstrates Fitzgerald spoke against many City Council agenda items on a variety of topics.
As to AGT's comments at the City Council meeting, it cites to two instances where it asserts it preserved the issue. First, Konstantinos disputed the scoring on "fleet accessibility" and criticized City staff for its arithmetic mistakes. Konstantinos did not allege bias during this portion of his comments, and allegations of scoring errors on a technical point cannot be construed as an allegation of bias.
Second, Konstantinos asserted, "The corruption that has happened throughout this process is unbelievable, absolutely unbelievable." This vague assertion of corruption without asserting who was biased or the evidence supporting the assertion did not preserve the issue. Like the trial court, we conclude AGT did not preserve review of the bias issue. Because AGT asserts it did not obtain some of the evidence of alleged bias through its public records requests (Gov. Code, § 6250 et seq.), until after the City Council's October 2016 award of the franchises, we will address the merits of its claim. B. Merits
"[O]ur Supreme Court requires a party seeking to show bias or prejudice on the part of an administrative decision maker to prove the same with concrete facts: '"Bias and prejudice are never implied and must be established by clear averments." [Citation.] Indeed, a party's unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute-resolving tribunals.' [Citations.] The court added, '[O]ur courts have never required the disqualification of a judge unless the moving party has been able to demonstrate concretely the actual existence of bias." (BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1237.) We address the issue of whether AGT received a fair hearing before the City Council de novo. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169-1170 (Clark).)
AGT contends at least two City Council members and five of the six TAC members were biased against AGT. AGT states Larry Slagle, former owner and now manager of Yellow Cab, was on the "Save Our Anaheim Resort" (SOAR) board, and City Council members Gail E. Eastman and Kris Murray were also on the SOAR board. AGT asserts Eastman and Murray "had financial and other conflicts of interest." Relying again on Fitzgerald's statements, AGT continues Slagle "'seeded' TAC with other SOAR Board Members." To support its claim, AGT cites to "evidence" consisting of its opening brief on the supplemental complaint for the seventh cause of action. The arguments of counsel in a brief are not evidence. (Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433 [counsel's arguments not evidence]; In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 515 [brief's allegations not evidence].)
Other than serving on the same board of directors of a community based organization, AGT does not cite to any concrete facts establishing any City Council or TAC member was biased against AGT. Serving on the same board of directors does not demonstrate actual bias. The record includes no evidence any City Council or TAC member was involved in any decision concerning Konstantinos' parents' company SCC. Fitzgerald's accusations, not supported by any evidence, do not carry the day.
AGT relies on Clark, supra, 48 Cal.App.4th 1152, to claim it carried its burden because the court in that case "called out" by name a city council member and AGT calls out by name City Council and TAC members. In Clark, the city council member had a personal interest in the project. (Id. at p. 1172.) Here, as we explain above, AGT cited to its brief, and not evidence, and it does not explain what financial or other conflicts of interest any City Council or TAC member had. Clark is inapposite.
We note neither Eastman nor Murray are currently on the City Council. Although we assume the TAC may be comprised of all or some of the same people in evaluating the RFP for the 50 taxicab permits, AGT has offered no evidence demonstrating bias, actual or apparent, of any TAC member. Our conclusion does not preclude AGT from asserting bias in future proceedings, supported by concrete facts and not baseless allegations. Because we conclude AGT has not demonstrated actual bias, we decline its invitation to order the City to award it 50 taxicab permits in the first instance. V. Motion to Augment & Compel Additional Discovery
We may take judicial notice of official records from government Web sites. (Evid. Code, § 452, subd. (h) [facts confirmable from sources of reasonably indisputable accuracy].)
AGT contends the trial court erred by denying its motion to augment and compel Sagert's deposition. Specifically, AGT asserts the court erred because this evidence was "relevant to the recently-developed [w]rit [c]laim," i.e., the seventh cause of action, and this error "prejudicially permeated every aspect of the" second writ trial.
On appeal AGT argues the relevant information included the following: (1) Sagert's deposition, which would explain her role in the City Council's award of White Cab's 50 permits to Yellow Cab and Cabco without an RFP; (2) relevant evidence the City omitted from administrative record No. 2; evidence of a similar situation in 2001 concerning the City's distribution of 50 permits from the third place company that ceased operations to the fourth place company; and evidence from 2008 that the City allegedly unfairly treated AGT.
AGT seeks this information because it was relevant to the City's distribution of White Cab's 50 permits to Yellow Cab and Cabco without an RFP. AGT adds this information was relevant to the second writ trial. As we explain above, we reverse the trial court's order on the seventh cause of action and order the City to vacate the City Council's award of 25 permits to Yellow Cab and 25 permits to Cabco and order the City to issue an RFP for those 50 taxicab permits. Because of that conclusion, we need not address these claims. VI. Motion for Summary Adjudication
AGT contends the trial court erred by granting the City's motion for summary adjudication on AGT's sixth cause of action for interference with prospective economic advantage. We disagree. A. Background
In its FAC, AGT alleged the City damaged it when the City "knowingly, unreasonably, intentionally, and negligently" interfered with its prospective economic advantage by denying it the opportunity to serve City residents and visitors. The City filed a motion for summary judgment on the fourth, fifth, and sixth causes of action. As to the sixth cause of action, the City argued both intentional and negligent interference with prospective economic advantage required an existing economic relationship, and AGT did not allege such a relationship existed but instead the City denied it a franchise. In its opposition, AGT contended the City "interfered with the 'formation' of an economic relationship."
In its minute order, the trial court granted the City's motion for summary adjudication on AGT's sixth cause of action, limiting its ruling to the intentional claim. After providing the elements of that claim, the court reasoned such a claim required an existing relationship but AGT's claim was the City did not award it a franchise. The court denied the City's motion for summary adjudication on the fourth and fifth causes of action as moot because it previously ruled on those claims at the first writ trial. B. Law & Analysis
"'On review of an order granting or denying summary judgment, we examine the facts presented to the trial court and determine their effect as a matter of law.' [Citation.] We review the entire record, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.' [Citation.] Evidence presented in opposition to summary judgment is liberally construed, with any doubts about the evidence resolved in favor of the party opposing the motion. [Citation.] [¶] Summary judgment is appropriate only 'where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' [Citation.] A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action. [Citation.]" (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) "'A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. Both are reviewed de novo. [Citations.]' [Citation.]" (Mercury Casualty Co. v. Chu (2014) 229 Cal.App.4th 1432, 1443.)
"Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action. [Citation.]" (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) A claim for negligent interference involves similar elements, except that the conduct need only be negligent. (Redfearn v. Trader Joe;s Co. (2018) 20 Cal.App.5th 989, 1005.)
Here, AGT did not allege there was an existing contract between AGT and a third party, i.e., City residents and visitors. Instead, AGT alleged the City interfered with City residents and visitors by not awarding AGT a taxicab franchise. Thus, AGT cannot prove a cause of action for interference with prospective economic advantage, intentional or negligent, because there was not an existing economic relationship between AGT and a third party. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546 [future patient referrals and patient contacts insufficient to state a cause of action for intentional interference with prospective business advantage].) Summary adjudication on AGT's sixth cause of action was proper. VII. Jury Trial
AGT asserts the trial court erred by denying it a jury trial on its fifth, sixth, and seventh causes of action. As we explain below, AGT did not carry its burden on the first two causes of action, and we need not address the last cause of action.
Code of Civil Procedure section 631, subdivision (a), codifies the constitutional right to jury trial in civil cases as set forth in California Constitution, article I, section 16. Code of Civil Procedure section 631, subdivision (b), requires a party demanding a jury trial to pay a nonrefundable fee of $150, subject to time limitations in subdivision (c) of that section. Code of Civil Procedure section 631, subdivision (g), authorizes a trial court to grant relief from a waiver of the right to jury trial.
Here, although it appears the trial court granted AGT relief from waiver of a jury trial on the fifth cause of action, the trial court previously denied relief on that claim by its June 20, 2016, order. And AGT's counsel did not object to the court's tentative or final statement of decision concerning its ruling on that claim. Had AGT desired a jury trial on that claim it should have filed a writ of mandate prior to the bench trial, or at a minimum objected during the proceeding. (See McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 364 [denial of relief from jury trial waiver writ of mandate prior to trial and not appeal after trial concluded].)
With respect to the sixth cause of action, the trial court granted the City's motion for summary adjudication on that claim. As we explain above, the court's ruling was correct. Thus, AGT was not entitled to a jury trial on that claim. Finally, as to AGT's seventh cause of action, as we explain above, we reverse the court's ruling denying relief on that claim. Therefore, we need not address this claim.
DISPOSITION
The judgment is reversed in part and affirmed in part. We reverse the trial court's order on the seventh cause of action and order the City to vacate the City Council's award of 25 permits to Yellow Cab and 25 permits to Cabco and order the City to issue an RFP for those 50 taxicab permits. In all other respects, we affirm the judgment. Each party shall bear its own costs on appeal. We grant AGT's and the City's requests for judicial notice.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. IKOLA, J.