Prof'l Towing, LLC v. City of Orange
| Docket Number | 8:22-cv-00333-KES |
| Decision Date | 22 August 2023 |
| Parties | PROFESSIONAL TOWING, LLC, Plaintiff, v. CITY OF ORANGE, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Petitioner/Plaintiff Professional Towing, LLC, dba Alberto's Towing (“Plaintiff” or “Alberto's Towing”) is suing Defendant City of Orange (“City”) and seven City legislators (the “Individual Defendants”[1]) (with the City “Defendants”) in connection with the City's decision not to award Plaintiff a contract to provide towing services for the Orange Police Department (“OPD”). The operative First Amended Petition/Complaint (“FAP/C”) alleges four claims against Defendants for: (1) writ of administrative mandate; (2) “a traditional or other writ of mandate”; (3) relief under the Brown Act, California Government Code section 54950 et seq.; and (4) damages and declaratory relief for civil rights violations under 42 U.S.C. § 1983.[2] (Dkt. 1-6.)
In June, 2023, Defendants moved for summary judgment. (Dkt. 42.) Plaintiff opposed the motion (Dkt. 44), and the County replied (Dkt. 47). On August 18, 2023, the Court held a hearing on the motion. (Dkt. 48.) For the reasons stated herein, Defendants' motion is GRANTED.
Summary judgment should be granted where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a). The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of .. [the factual record that] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party satisfies its initial burden, the non-moving party must demonstrate with admissible evidence that genuine issues of material fact exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986) (“When the moving party has carried its burden under Rule 56 . its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”). Where the non-moving party will bear the burden of proof on an issue at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25.
A material fact for purposes of summary judgment is one that “might affect the outcome of the suit” under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although a court must draw all inferences from the facts in the nonmovant's favor, id. at 255, when the non-moving party's version of the facts is “blatantly contradicted by the record, so that no reasonable jury could believe it, [the] court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Defendants identify 36 material, undisputed facts (“UFs”). (Dkt. 42-1.) Plaintiff contends that all but UF ##1, 5, 6, 18, 19, 20, 21, 23 are disputed. (Dkt. 44-1.) Often, however, the evidence cited by Plaintiff does not controvert the corresponding UF. Moreover, many of the UFs are immaterial to the legal grounds on which the Court relies. In the summary below, the Court sets forth material facts established by admissible evidence and uncontroverted by other evidence.[3]
On March 4, 2021, the OPD issued a Request for Proposal for a Towing and Storage Services Agreement (“RFP”). (UF #1.) A true and correct copy of the RFP without attachments is at Dkt. 42-12. (Id.)
Per the RFP, the “City reserve[ed] the right to ... award its total requirements to one Responder or to apportion those requirements among two or more Responders as the City may deem to be in its best interest.” (Dkt. 42-12 at 6.) The RFP told responders that they needed to meet certain qualifications, including the following:
A true and correct copy of OPD Policy 502 is at Dkt. 42-13. (UF #2.) Among other things, OPD Policy 502 sets forth requirements for tow truck maintenance, tow yard security, an “open area storage,” and an “inside enclosure” for vehicle storage. (Dkt. 42-13 at 2-4.) OPD Policy 502 § 502.5.5 addresses the inspection of tow trucks and facilities to verify compliance with the RFP's requirements. (Id. at 15-16; UF #3.)
On March 4, 2021, City Purchasing Officer, Wanda Alvarez, sent a courtesy email to Alberto's Towing to inform it that the RFP had been posted on the City's website, and she provided a link. (UF #5.) Responses to the RFP were due on April 1, 2021. (UF #6.) By April 1, the City had received four responses from (1) Alberto's Towing; (2) Archie's Towing; (3) Truxyz, Inc., doing business as Tows R Russ; and (4) Southside Towing and Storage Services. (UF #7; Dkt. 44 at 8-9; Dkt. 44-2 ¶ 13.) The three companies other than Plaintiff already had a towing contract with the City. (Id.)
OPD Sgt. Cullen inspected the facilities of all four towing companies that had responded to the RFP. (Dkt. 42-4 ¶ 5.) His score sheets are submitted for Southside Towing (at Dkt. 42-18), Tows R Russ (at Dkt. 42-19), and Archie's Towing (at Dkt. 42-20). (UF #9.) Sgt. Cullen prepared a summary sheet showing that he scored the other three towing companies in the 90s, whereas he scored Alberto's Towing 56.125.[4] (UF #10; Dkt. 42-21; Dkt. 42-4 ¶ 7.)
On June 8, 2021, the City Council conducted a regular meeting to, among other items of business, vote on the award of towing contracts pursuant to the RFP. (Dkt. 42-6 ¶ 5.) In advance, Sgt. Cullen prepared Agenda Item 3.14 Report, a true and correct copy of which, without attachments, is at Dkt. 42-22. (UF #11.) In his report, Sgt. Cullen recommended awarding contracts to the other three responders but said, “Alberto's Towing did not meet the minimum requirements.” (Dkt. 42-22 at 1 ¶ 2.) His report conveyed the scores for all four responders. (Id. at 2.)
On June 3, 2021, City staff published the Agenda for the June 8, 2021 City Council meeting on the City's website. The City made the Agenda and Agenda Packet, including Sgt. Cullen's Agenda Item 3.14 Report, available on its website and at the front counter of the City Clerk's Office.[5] (UF #13, #14; Dkt. 42-6 ¶ 2.)
As part of the consent calendar, the City Council voted to approve Agenda Item 3.14, which was a recommendation to award three-year Towing and Storage Service contracts to Tows R Russ, Archie's Towing, and Southside Towing. (UF #15; Dkt. 42-25 at 4, 7; Dkt. 42-26.) The minutes from the June 8 meeting were approved on June 13, 2021. (Id.)
On June 11, 2021, Alberto Castellanos, Plaintiff's managing member, emailed Ms. Alvarez about the RFP's status. (UF #19; Dkt. 42-27; Dkt. 44-2 at 3 ¶ 1.) Mr. Castellanos sent a follow-up email on June 22. (Id.) On June 22, 2021, Ms. Alvarez responded by email and provided a link to the Agenda and Agenda Packet for the June 8 City Council meeting. (Dkt. 42-5 at 2 ¶ 7; Dkt. 42-27.)
On September 7, 2021, counsel for Plaintiff, Maryann Cazzell, sent the City a demand letter contesting the award of towing contracts to the other three responders and the City Council's decision not to award a towing contract to Alberto's Towing.[6] (UF #21; Dkt. 42-29.)
After multiple communications between the City Attorney's Office and Ms. Cazzell, the City Attorney's Office sent Plaintiff's counsel an email stating, “we are in the process of placing on the agenda for the upcoming City Council meeting on November 9, 2021, the [OPD's] recommendation not to award a Towing and Storage Services Agreement to Alberto's Towing ....” (UF #26; Dkt. 42-31.) Ms. Cazzell responded in relevant part, (UF #30; Dkt. 42-32.) The City Attorney's Office responded, explaining that the City would not agree to a “do over” for the following reasons:
According to the Request for Proposal 20-21.39, the City can “award its total requirements to one Responder or to apportion those requirements among two or more Responders as the City may deem to be in its best interest.” (Page 6, Para 17). There is no limitation on the number of Responders that can be awarded contracts with the City; therefore the Responders are not competing for a limited number of contracts.[7]
(UF #31; Dkt. 42-33.)
On November 3, 2021, the Agenda Item 9.1 Report, which set forth a recommendation by OPD to the City Council not to award a contract to Alberto's Towing, was made available to the public and provided to Plaintiff's counsel. (UF #32; Dkt. 42-35.) Both Ms. Cazzell and Mr. Castellanos attended the November 9 City Council meeting and spoke. (UF #35.) Their comments did not cause the City Council to vote in favor of awarding a contract to Alberto's Towing. (Id.)
Plaintiff has not had a tow yard in the City since September 2022,...
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