Lindelli v. Town of San Anselmo

• Decision Date: 03 September 2003
• Docket Number: No. A101076.,A101076.
• Citation: 4 Cal.Rptr.3d 453,111 Cal.App.4th 1099
• Court: California Court of Appeals Court of Appeals
• Parties: Suzanne N. LINDELLI et al., Plaintiffs and Appellants, v. TOWN OF SAN ANSELMO et al., Defendants and Respondents; Marin Sanitary Service, Real Party in Interest and Respondent.

4 Cal.Rptr.3d 453

111 Cal.App.4th 1099

Suzanne N. LINDELLI et al., Plaintiffs and Appellants, v. TOWN OF SAN ANSELMO et al., Defendants and Respondents Marin Sanitary Service, Real Party in Interest and Respondent.

No. A101076.

Court of Appeal, First District, Division 5.

September 3, 2003.

Rehearing Denied September 23, 2003.

Review Denied December 10, 2003.

Remcho, Johansen & Purcell, Robin B. Johansen, San Francisco, Thomas A. Willis, for Plaintiffs and Appellants.

Law Offices of Hadden Roth, Hadden Roth, San Rafael; Ragghianti Freitas Macias & Wallace, Gary T. Ragghianti, San Rafael; and Bien & Summers, Elliot L. Bien, Novato, for Defendant and Respondent Town of San Anselmo and Real Party in Interest and Respondent Marin Sanitary Service.

No appearance for Defendants and Respondents Town Council of the Town of San Anselmo.

GEMELLO, J.

Elections Code section 9241 provides that when an ordinance is the subject of a referendum petition, it shall not take effect until the majority of the voters voting on the referendum approve the ordinance. A municipality may not evade this stay provision by re-passing a materially identical ordinance as an interim measure until the referendum election.

In this case, respondent Town of San Anselmo awarded a waste management franchise to a new provider, respondent Marin Sanitary Service, in place of the incumbent, appellant North Bay Corporation. After opponents of the new provider obtained enough signatures to qualify a referendum on the franchise, San Anselmo accepted bids for an interim contract and then awarded Marin Sanitary Service the yearlong interim contract until the referendum election. Because this procedure violated the stay provisions of Elections Code section 9241, we reverse the trial court judgment denying a petition for a writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

From 1994 to 2002, San Anselmo Refuse & Recycling, an affiliate of North Bay Corporation (collectively North Bay), provided waste management services for San Anselmo. The North Bay franchise was to expire on November 30, 2002. On August 27, 2002, San Anselmo passed a resolution awarding the new waste management franchise to a competitor, Marin Sanitary Service.

Appellant Suzanne Lindelli (Lindelli) and others obtained enough signatures to qualify a referendum petition protesting the award of the franchise to Marin Sanitary Service.¹ The petition was certified as sufficient on September 26, 2002. On September 28, San Anselmo published a notice seeking interim contract proposals for the period from expiration of the existing franchise agreement until a referendum election could be held. The proposals were due by noon on October 8, and were to be considered at a public hearing the evening of October 8. North Bay, Marin Sanitary Service, and a third party submitted bids. On October 8, San Anselmo awarded an interim contract to Marin Sanitary Service under the identical terms and conditions as the original franchise agreement.² It also set the vote on the referendum petition for the next permissible general election, November 4, 2003.³

On October 9, 2002, North Bay and Lindelli filed a written protest. They argued that the interim contract violated the stay provisions of Elections Code section 9241.⁴ After receiving no response, they filed a petition for writ of mandate on October 15. On November 20, the trial court orally denied relief, and on November 27, it entered judgment for San Anselmo and Marin Sanitary Service.

That same day, before the interim contract took effect, Lindelli and North Bay sought a writ of mandate and stay from this court to stop the interim contract from going into effect. We denied their petition.

In January 2003, Lindelli and North Bay filed their opening brief. They withdrew their request to have Marin Sanitary Service removed as interim provider. Instead, they confined themselves to a request for a ruling that the issuance of the interim contract to Marin Sanitary Service was unlawful.

San Anselmo then moved to dismiss the appeal as moot. We denied the motion. Lindelli and North Bay's concession that they are no longer seeking removal of the interim provider ordinarily might render this case moot. However, there is an exception to mootness applicable to issues of broad public interest: "`"[I]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot."'" (Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172, 126 Cal.Rptr.2d 727, 56 P.3d 1029, quoting In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.) The election law issue presented in this case is one of broad importance, capable of recurring, and likely otherwise to escape review. We therefore exercise our discretion to consider the appeal on the merits.

DISCUSSION

I. Standard of Review

"On appeal following a trial court's decision on a petition for a writ of mandate, the reviewing court `"need only review the record to determine whether the trial court's findings are supported by substantial evidence."' [Citation.] However, we review questions of law independently. [Citation.] Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. [Citation.]." (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129, 133 Cal.Rptr.2d 249; see International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224, 90 Cal.Rptr.2d 186.)

The trial court's determination that San Anselmo's actions did not violate the Elections Code is a legal finding subject to independent review. "We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale." (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)

II. Lindelli and North Bay Have Exhausted Their Administrative Remedies and Have Standing to Enforce Section 9241's Requirements

Preliminarily, San Anselmo argues that Lindelli and North Bay may not challenge the interim contract because they failed to challenge the contract before it was awarded.

The October 8, 2002, hearing on the interim contract included a public comment period. The hearing notice provided in part: "If any of these matters above are challenged in court, you may be limited to raising only those issues you or someone else raised at any public hearing described on this agenda, or in written correspondence delivered at, or prior to, this Council meeting." No one raised section 9241 at the public hearing. At the close of the hearing, San Anselmo awarded an interim contract to Marin Sanitary Service. The next day, counsel for Lindelli and North Bay wrote San Anselmo to object to the interim contract. In the letter, appellants' counsel asserted on their behalf that the interim contract was illegal under section 9241.

San Anselmo argues that because North Bay and Lindelli did not raise section 9241 at the public hearing, before the award of the interim contract, they may not do so now. San Anselmo frames this objection as either (1) a failure to exhaust administrative remedies or (2) a lack of standing. It matters not whether San Anselmo's argument is couched as a standing argument or an exhaustion argument. Under either guise, we find the objection unavailing because neither doctrine applies to bar relief here.

The purpose of an exhaustion requirement is twofold: to eliminate the need for judicial resolution of some disputes, and to provide a clearer record for those matters not resolved in the administrative process. (J.H. McKnight Ranch, Inc. v. Franchise Tax Board (2003) 110 Cal.App.4th 978, 992; see Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 476, 131 Cal.Rptr. 90, 551 P.2d 410.) It necessarily follows that the exhaustion doctrine cannot be invoked without an existing administrative procedure that might serve these dispute resolution and record-building functions. "[T]he doctrine [requiring exhaustion of administrative remedies] does not apply in those situations where no specific administrative remedies are available to the plaintiff." (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1287, 258 Cal.Rptr. 795 (City of Coachella).)

There was no such remedy available here. The opportunity to participate in a public hearing prior to a legislative action does not constitute an administrative remedy subject to exhaustion." `Ordinarily we use the word remedy as meaning a device to redress a wrong. It is decidedly inappropriate to speak of remedying a wrong that has not occurred and may not occur. Prior to the adoption of a negative declaration under the scheme here in issue there is no wrong to be remediated. Hence, the mere public opportunity to participate in an administrative proceeding prior to the adoption of a negative declaration is not a remedy. The exhaustion of administrative remedies doctrine has never applied where there is no available administrative remedy. [Citations.]'" (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 590, 96 Cal.Rptr.2d 880 (Tahoe Vista), quoting California Aviation Council v. County of Amador (1988) 200 Cal.App.3d 337, 348, 246 Cal.Rptr. 110 (conc. opn. of Blease, J.).) "The mere fact that [plaintiff] was entitled to attend [defendant's] hearings on the adoption of the [land use plan] and submit materials relevant to that legislative act does not constitute an administrative remedy. An administrative remedy is provided only in those instances where the administrative body is required to actually accept, evaluate and resolve disputes or complaints. [Citation.] The public hearings...