SYMONS EMERGENCY SPECIALTIES, Plaintiff and Appellant, v. CITY OF RIVERSIDE, Defendant and Respondent.
E078113 (Super.Ct.No. CIVDS1516027)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 1/9/24
Thomas S. Garza, Judge.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Stream Kim Hicks Wrage & Alfaro, Theodore K. Stream and Jamie E. Wrage for Plaintiff and Appellant.
Phaedra A. Norton, City Attorney, Rebecca L. McKee-Riembold, Assistant City Attorney, and Brandon S. Mercer, Deputy City Attorney, for Defendant and Respondent.
I. INTRODUCTION
Defendant and respondent City of Riverside (the City) regulates the provision of ambulance services operating within the City‘s geographic limits under the Riverside Municipal Code (RMC). As relevant to this litigation, RMC section 5.66.020 prohibits persons from operating ambulance services originating in the City without first obtaining a valid franchise or permit from the City. Plaintiff and appellant Symons Emergency Specialties (Symons) filed a civil complaint seeking declaratory and injunctive relief against the City, arguing that RMC section 5.66.020 is invalid under the Emergency Medical Services System and Prehospital Emergency Medical Care Act (EMS Act;
Symons appeals, arguing that the judgment must be reversed because: (1) the trial court abused its discretion by admitting testimony of city employees regarding the interpretation of two city ordinances enacted in 1975 and 1980 (Ordinance 4183 and Ordinance 4768, respectively); (2) the trial court‘s factual finding that the City regulated nonemergency ambulance services as of June 1980 is not supported by substantial evidence; and (3) RMC section 5.66.020 is invalid as a matter of law because it violates federal anti-trust law. We disagree with each of these contentions and affirm the judgment.
II. BACKGROUND
A. The EMS Act and Section 1797.201
“ ‘The EMS Act aims to achieve integration and coordination among various government agencies and EMS providers.’ ” (City of Oxnard v. County of Ventura (2021) 71 Cal.App.5th 1010, 1015.) It “ ‘create[s] a comprehensive system governing virtually every aspect of prehospital emergency medical services’ ” and “ ‘accomplishes this integration through what is essentially a two-tiered system of regulation.’ ” (Valley Medical Transport, Inc v. Apple Valley Fire Protection Dist. (1998) 17 Cal.4th 747, 754 (Valley Medical).) “The two tiers consist of a state Authority, which ‘performs a number of different functions relating to the coordination of EMS throughout the state’ (ibid.), and an EMS agency established by a county . . . which plans, implements, and evaluates emergency medical service systems on a countywide or multicounty basis . . . .” (Ibid.) Generally, cities are “afforded no particular role” in administration of this local EMS agency. (County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 916 (County of San Bernardino).)
However, the EMS Act includes a “grandfathering” provision in section 1797.201. (Valley Medical, supra, 17 Cal.4th at p. 758;
B. Relevant Evidence Presented at Trial3
The central factual dispute identified by both parties at trial was whether the City regulated the provision of ambulance services as of June 1, 1980, such that the City was entitled to continue regulating those services under section 1797.201.
1. City Ordinances
The evidence at trial included multiple ordinances adopted by the City from 1975 to the time of trial. Ordinance 4183 was adopted in 1975 and granted a franchise to Goodhew Ambulance Service (Goodhew) “to operate authorized emergency ambulance vehicles” within the City‘s geographic limits. Ordinance No. 4768 was adopted in March 1980, and again granted a franchise to Goodhew “to operate authorized emergency ambulance vehicles” within the City‘s geographic limits.
The City adopted subsequent ordinances extending the term of Goodhew‘s franchise through at least 1999, without substantive change to the scope or conditions of the original franchise.4 However, Ordinance No. 16005 (Ordinance 16005), which extended the term of Goodhew‘s franchise from March 1985 through January 1988, was not formally adopted until after the effective date of the extension.
In September 1989, the City adopted an ordinance adding chapter 5.66 to the municipal code. This chapter provided a more comprehensive set of
2. Witness Testimony
The deputy fire chief of administration for the City of Riverside Fire Department testified that he was originally hired in 1993 and had been assigned as the City‘s ambulance administrator since 2015. His duties required him to be familiar with the statutes and ordinances pertaining to ambulance operation, as well as the City‘s franchise and contract agreements pertaining to ambulance operation. The deputy chief explained that, in the context of ambulance transports, the terms “emergency” and “nonemergency” are not used to describe a type or level of service. Instead, the terms refer only to whether the request for service originated through the 911 emergency system or another source. As a result, the term “emergency ambulance vehicles” as used in Ordinance 4183 includes vehicles that respond to both emergency and nonemergency calls.
A battalion chief with the City of Riverside Fire Department testified that he had been working for the City for over 20 years. Prior to working for the City, the battalion chief worked as a paramedic for Goodhew and its successor companies from 1990 through 2000. He confirmed that the distinction between “emergency” and “nonemergency” transports is based upon how the call for service originated and not the type of vehicle or service being provided. He also testified that while working as a paramedic from 1990 through 2000, he performed both emergency and nonemergency transports within the City‘s geographic limits on behalf of Goodhew.
A medical doctor testified that he is shareholder, current member of the board of directors, and former chief operating officer of Symons. He has been involved in the provision of emergency medical services in various capacities since 1991. Given this experience, he has followed the various laws and regulations relating to the provision of EMS services. The doctor testified that “there‘s a lot of different definitions on emergency ambulance,” but he admitted that in “the general common usage,” the phrase typically describes a call for service generated through the 911 emergency call system. The doctor further explained that “in the very beginning of EMS . . .—there weren‘t clear definitions” describing different types of ambulances. However, “[i]n the ‘90s,” the federal Medicare guidelines began differentiating between four different classifications of ambulance. Despite this, each type of ambulance can provide both “emergency” and “nonemergency” services.
C. Statement of Decision and Judgment
On August 18, 2021, the trial court issued a statement of decision concluding that Symons “did not meet its burden to prove its allegations” that RMC section 5.66.020 was invalid. Judgment was entered in favor of the City, and Symons appeals from this judgment.
III. DISCUSSION
A. Admission of Evidence
The first argument advanced by Symons on appeal is that the trial court erred by permitting the deputy fire chief and battalion chief to testify that the scope of the franchise granted in Ordinance 4183 and Ordinance 4768 included both emergency and nonemergency ambulance transports. According to Symons, this testimony was inadmissible because both witnesses lacked sufficient personal knowledge to testify on this topic as required by
Generally, “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” (
trial court‘s factual determination that a witness possesses sufficient personal knowledge to testify on a matter is reviewed for substantial evidence. (People v. Lopez (2018) 5 Cal.5th 339, 352; Preciado v. Freightliner Custom Chassis Corp. (2023) 87 Cal.App.5th 964, 974.)
“ ‘Courts interpret municipal ordinances in the same manner and pursuant to the same rules applicable to the interpretation of statutes.’ ” (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434 (Harrington).)
This type of testimony is relevant because “[a]n agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts” (Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 7), and the level of deference afforded to an agency interpretation depends, in part, on factors such as “indications of careful consideration by senior agency officials . . . evidence that the agency ‘has consistently maintained the interpretation in question . . .’ and indications that the agency‘s interpretation was contemporaneous with legislative enactment of the statute being interpreted” (id. at pp. 12-13; State Farm General Ins. Co. v. Lara (2021) 71 Cal.App.5th 148, 184-185). Thus, when assessing whether a witness has personal knowledge to testify regarding the City‘s interpretation of its own ordinance, the relevant inquiry is whether the witness has some personal knowledge regarding the manner in which the City administered or enforced the ordinance in question.
Contrary to Symons‘s argument, the personal knowledge need not pertain specifically to the date an ordinance or statute was enacted. This court‘s discussion in Castenada v. Holcomb (1981) 114 Cal.App.3d 939 (Castenada) is instructive on this point. In Castenada, we considered a dispute regarding the proper interpretation of a city charter provision originally approved in 1905. (Id. at p. 945.) In doing so, we
As Castenada recognizes, testimony regarding how an ordinance is enforced, even well beyond the time of its original adoption, is still relevant when interpreting the language of that ordinance. Thus, the only personal knowledge necessary to establish admissibility under
In this case, the deputy fire chief testified that he had been working for the City since 1993, and the battalion chief testified that he was employed by Goodhew from 1990 through 2000. The record shows that the substantive terms of Ordinance 4768 granting a franchise to Goodhew remained in effect through at least sometime in 1999, since
Goodhew‘s franchise was extended without substantive change to the scope of its franchise during this time period. Thus, both witnesses worked for either the City or the franchise
B. Sufficiency of the Evidence
The second argument advanced by Symons on appeal is that there was insufficient evidence to support the trial court‘s determination that the City‘s attempts to regulate ambulance services was not preempted by the EMS Act. We conclude that Symons has forfeited this issue for failure to fairly summarize the evidence in the record and failure to tailor its arguments to the correct standard of review. Further, even in the absence of forfeiture, we would conclude that substantial evidence supports the trial court‘s findings.
1. Legal Principles and Standard of Review
“In reviewing a judgment based upon a statement of decision following a bench trial,” we “apply a substantial evidence standard of review to the trial court‘s findings of fact.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) Generally, “our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court‘s factual determinations.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)
However, in this case, the trial court expressly concluded that Symons did not meet its burden of proof at trial. This was the correct allocation of the burden of proof. With respect to Symons‘s complaint, Symons, as the plaintiff, bore the burden of proof. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977 [“ ‘[T]he general rule in California [is] that “a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting.” ’ ”]; Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 234 [“[T]he plaintiff normally bears the burden of proof to establish the elements of his or her cause of action.”];
“The substantial evidence standard of review takes on a unique formulation where, as here, ‘the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals.” (In re S.G. (2021) 71 Cal.App.5th 654, 671.) Under these circumstances, “ ‘ “ ‘the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant‘s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” ‘ ” (Garcia v. KND Development 52, LLC (2020) 58 Cal.App.5th 736, 744 (Garcia); Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 811 (Kinder).) Thus, we apply this modified substantial evidence standard because Symons bore the burden of proof at trial, and the trial court expressly found that Symons did not meet its burden.
2. Forfeiture
Initially, we conclude that Symons has forfeited its claim that the trial court‘s finding was not supported by substantial evidence for two, independent reasons.
First, “ ‘ “[a]rguments should be tailored according to the applicable standard of appellate review,” ’ ”and “ ‘[f]ailure to acknowledge the proper scope of review is a concession of lack of merit.’ ” (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948; Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) “When an appellant fails to apply the appropriate standard of review, the argument lacks legal force,” and the appellant “fails to show error in the judgment.” (People v. Foss (2007) 155 Cal.App.4th 113, 126.)
In this appeal, Symons briefly identifies the “substantial evidence rule” as the standard of review. However, Symons fails to appreciate that it bore the burden of proof at trial and, as a result, has not tailored any of its arguments
Second, “it is presumed that the evidence is sufficient to support [the trier of fact‘s] factual findings, and it is the appellant‘s burden to demonstrate that it does not. . . . And in furtherance of that burden, the appellant must fairly summarize the facts in the light favorable to the judgment.” (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1667.) “To overcome the trial court‘s factual findings,” the appellant is “ ‘required to set forth in [his] brief all the material evidence on the point and not merely [his] own evidence. Unless this is done the error is deemed to be [forfeited].’ ” (Naranjo v. Spectrum Security Services, Inc. (2023) 88 Cal.App.5th 937, 946, review granted May 31, 2023, S279397; Verranzono v. Gehl Co. (2020) 50 Cal.App.5th 636, 652 [The failure to set forth all material evidence forfeits any substantial evidence claim.]; Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415 [“If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence.”].)
The failure of Symons to provide a fair summary of the record is clear in this case. In its statement of decision, the trial court analyzed the testimony of three witnesses and explicitly referenced 30 documentary exhibits in support of its finding. Yet the summary of facts set forth in Symons‘s opening brief failed to specifically reference, let alone present a fair summary, of the majority of this evidence. Even when specifically arguing its substantial evidence claim, Symons described the “only admissible evidence” as consisting of two documents, despite the fact that the trial court‘s statement of decision expressly relied on additional items of evidence in reaching its conclusion. Symons does not meet its burden on appeal by failing to address the evidence it finds unfavorable to its position or disregarding evidence that the trial court expressly relied upon to reach its findings.
The failure to tailor arguments to the appropriate standard of review and failure to fairly summarize the evidence at trial forfeits Symons‘s claim that the trial court‘s findings were not supported by substantial evidence. Regardless, even in the absence of forfeiture, we would conclude that substantial evidence supports the trial court‘s findings.
As we have already detailed, under the modified substantial evidence standard applicable to an appellant who bore the burden of proof at trial, Symons was required to show that the evidence at trial was “ ‘ “uncontradicted and unimpeached.” ’ ” (Garcia, supra, 58 Cal.App.5th at p. 744; Kinder, supra, 91 Cal.App.5th at p. 811.) The record does not support such a conclusion in this case.
It is true that, as Symons claims on appeal, Ordinance 4183 and Ordinance 4768 reference only “emergency ambulance vehicles” and do not explicitly reference the provision of nonemergency services. However, this was not the only evidence presented on the issue. The City of Riverside Fire Department deputy fire chief and battalion chief both testified that “emergency ambulance vehicles” operating under the language of this ordinance provided both emergency and nonemergency services. This testimony certainly contradicts Symons‘s restrictive reading of these ordinances.
Additionally, the medical doctor called as a witness by Symons admitted that there were no clear distinctions between types of ambulances in the medical profession at the time the ordinances were adopted, and further testified that, even after formal classifications for ambulances were generally accepted, the term “emergency” was not used to distinguish between a type of ambulance or type of service. This testimony also undermined Symons‘s proffered interpretation that the phrase “emergency ambulance vehicle” must refer only to the provision of emergency services.
Thus, the evidence upon which Symons now relies was neither uncontradicted nor unimpeached. Where the evidence is in conflict or lacks persuasive force, the trier of fact is not required to adopt the view of the evidence advanced by the party bearing the burden of proof. Therefore, Symons has not shown that reversal is warranted for lack of substantial evidence.
4. Symons‘s Evidence Was Not of Such Character and Weight To Compel a Finding in Its Favor
Additionally, the second prong of the modified substantial evidence standard applicable to an appellant who bore the burden of proof at trial requires Symons to show that the uncontradicted evidence was of such character and weight as to compel a finding in its favor as a matter of law. (Garcia, supra, 58 Cal.App.5th at p. 744; Kinder, supra, 91 Cal.App.5th at p. 811.) Here, even if we accept Symons‘s characterization of the record that Ordinance 4183 and Ordinance 4768 constituted the only evidence regarding
Under California law, “a city‘s interpretation of its own ordinance is ‘ “entitled to deference” in our independent review of the meaning or application of the law.’ ” (Harrington, supra, 16 Cal.App.5th at p. 434; Berkeley Hills, supra, 31 Cal.App.5th at p. 896 [“[A] city‘s interpretation of its own ordinance ‘ “is entitled to great weight unless it is clearly erroneous or unauthorized.” ’ ”]; Protect Our Neighborhoods v. City of Palm Springs (2022) 73 Cal.App.5th 667, 678 [same].) As this court has repeatedly explained, where no other evidence is presented, we will defer to a city‘s interpretation of its own ordinance “unless it is arbitrary, capricious or lacks any rational basis.” (Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1516; Protect Our Neighborhoods, at p. 680.) This deference is appropriate even if the language of the ordinance is susceptible to more than one reasonable interpretation. (Protect Our Neighborhoods, at p. 680.)
Facially, Ordinance 4183 and Ordinance 4768 both granted a franchise to a private company to “operate authorized emergency ambulance vehicles” within the City‘s geographic limits. However, this court analyzed nearly identical language used in the EMS Act and concluded that the phrase “ ‘emergency ambulance services’ . . . encompasses all services rendered by emergency ambulances [because] ‘emergency’ modifies ‘ambulance,’ not ‘services.’ ” (Schaefer‘s Ambulance Serv. v. County of San Bernardino (1998) 68 Cal.App.4th 581, 589.) We are not the only court to adopt this interpretation. (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 405 [The phrase “ ‘emergency ambulance service’ encompasses all services rendered by emergency ambulances, even if the ambulance is engaged in nonemergency interfacility transfers.”].) Given these authorities, we cannot say that the City‘s interpretation of its own ordinance in this case is unreasonable. Clearly, at least one reasonable interpretation of the phrase “emergency ambulance vehicles” is that it refers to the type of vehicle covered by the franchise and not the type of services provided by those vehicles.
Thus, even if we accepted Symons‘s characterization of the record that Ordinance 4183 and Ordinance 4768 constituted the only evidence presented on this issue, it would have been appropriate for the trial court to defer to the City‘s reasonable interpretation of its own ordinances. The fact that Symons may have proffered an equally reasonable interpretation of the ordinances does not compel a finding in its favor as a matter of law, and reversal is not warranted under the substantial evidence standard of review.
Symons also argues that, even assuming the City maintained a right to regulate nonemergency ambulance services under section 1797.201, the City lost its right to do so when its contract with the private ambulance carrier purportedly lapsed for a period of time in 1985. We disagree.
First, we do not believe that the evidence in the record supports the factual predicate for Symons‘s argument. Facially, the city ordinances produced at trial granted franchise extensions for the operation of ambulances from March 1980 through the time of trial. Symons points to the fact that one of the ordinances granting one such extension was not formally adopted by the City until nine months after the effective date of the extension, and argues that this constitutes evidence the City discontinued the provision of services during this time.
However, it is “a well-established principle of contract law” that “when parties agree on the material terms of a contract with the intention to later reduce it to a formal writing, failure to complete the formal writing does not negate the existence of the initial contract.” (CSAA Ins. Exchange v. Hodroj (2021) 72 Cal.App.5th 272, 276; Church v. Wade (1947) 80 Cal.App.2d 412, 419 [contract exists where performed by both parties, even if not reduced to writing].) Thus, the absence of a formalized writing does not, in itself, evidence the absence of an agreement, let alone the cessation of services provided under that agreement. This is particularly true where, as here, the later formalization of the agreement expressly provides the date upon which the parties understood the agreement to be deemed effective. Thus, in our view, the evidence does not support the fact upon which Symons‘s argument is premised.
Second, even if the evidence could be construed as a temporary lapse in contracted services, we disagree with Symons that this evidence would be sufficient to show the loss of the City‘s rights under section 1797.201. Under the express terms of section 1797.201, a city that contracted or provided for prehospital emergency services as of June 1, 1980, retains the obligation to provide, and right to regulate, those services “until such time that an agreement is reached” with a county. (
The cannons of statutory construction also support our interpretation of section 1797.201. When interpreting a statute, “[w]e construe the statute‘s words in context, harmonizing statutory provisions to avoid absurd results.” (California Building Industry Assn. v. State Water Resources Control B. (2018) 4 Cal.5th 1032, 1041.) As relevant here, section 1797.201 mandates that the city or local fire district continue providing prehospital emergency medical services “[u]ntil such time that an agreement is reached.” (
C. Federal Anti-Trust Law
Finally, we briefly address Symons argument that the City‘s franchise ordinances are invalid because they violate federal antitrust law (the Sherman Act;
In light of the trial court‘s finding that Symons failed to meet its burden to show that the City acted outside the scope of its authority under the EMS Act when enacting RMC chapter 5.66, and our conclusion that substantial evidence in the record supports this finding, the factual premise for Symons‘s antitrust argument is not present in this case. As a result, we find no basis to reverse the judgment on this ground.
The judgment is affirmed. Respondent to recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
MILLER Acting P. J.
CODRINGTON J.