Torres v. City of Montebello

• Decision Date: 13 February 2015
• Docket Number: B246515,C/w B246526,C/w B250851
• Citation: 183 Cal.Rptr.3d 801,234 Cal.App.4th 382
• Court: California Court of Appeals Court of Appeals
• Parties: Mike TORRES, Plaintiff, Respondent and Appellant, v. The CITY OF MONTEBELLO et al., Defendants and Respondents; Arakelian Enterprises, Inc., Real Party in Interest, Respondent and Appellant. Arakelian Enterprises, Inc., Plaintiff and Appellant, v. The City of Montebello et al., Defendants and Respondents.

234 Cal.App.4th 382

183 Cal.Rptr.3d 801

Mike TORRES, Plaintiff, Respondent and Appellant

v.The CITY OF MONTEBELLO et al., Defendants and Respondents;

Arakelian Enterprises, Inc., Real Party in Interest, Respondent and Appellant.

Arakelian Enterprises, Inc., Plaintiff and Appellant

v.The City of Montebello et al., Defendants and Respondents.

B246515

C/w B246526

C/w B250851

Court of Appeal, Second District, Division 3, California.

Filed February 13, 2015

Miles Law Group, Stephen M. Miles ; Law Offices of Frank W. Battaile and Frank W. Battaile, Newport Beach, for Plaintiff, Respondent and Appellant Mike Torres.

Leibold McClendon & Mann, P.C. and John G. McClendon, Laguna Hills, for Defendants and Respondents City of Montebello and City Council of the City of Montebello.

Bell, McAndrews & Hiltachk, Sacramento, Paul T. Gough, Colleen C. McAndrews, Thomas W. Hiltachk ; Gibson, Dunn & Cutcher, Irvine, Robert E. Palmer, Lauren D. Friedman, Courtney A. Dreibelbis and Thomas Manakides for Real Party in Interest, Respondent and Appellant, and Plaintiff and Appellant Arakelian Enterprises, Inc.

KITCHING, J.

INTRODUCTION

The principal issue in this appeal concerns Government Code section 40602's mayoral signature requirement for municipal contracts and whether the mayor's purported refusal to sign a contract duly approved by the city council authorizes the mayor pro tempore to sign the contract in the mayor's “absence” under Government Code section 40601. We conclude it does not.

Since 1962, Arakelian Enterprises, Inc., doing business as Athens Services, successor in interest to Athens Disposal Company, Inc. (Athens), has been the exclusive residential waste hauling franchisee for the City of Montebello (the City or Montebello). In 2008, a candidate for the Montebello City Council approached Athens about becoming the City's exclusive commercial waste hauling franchisee as well. The candidate won election to the Montebello City Council (City Council) and, with his vote, the City Council approved a contract granting Athens an exclusive residential and commercial waste hauling franchise.

In the weeks that followed, the Mayor of Montebello (Mayor), who had voted against the exclusive franchise, refused to sign the contract. The City Attorney advised the Mayor that he had a ministerial duty to execute contracts passed by the City Council under Government Code section 40602. If the Mayor refused to do so, the Montebello City Attorney (City Attorney) warned, he would be deemed “absent” under Government Code section 40601 and the mayor pro tempore (Mayor Pro Tempore) would be directed to execute the contract in his stead. More weeks passed without the Mayor signing the contract, until, at the apparent direction of the City Attorney, the Mayor Pro Tempore signed it.

Plaintiff Mike Torres filed a complaint against the City seeking a writ of mandate to invalidate the contract. The trial court entered judgment for Torres and issued the requested writ, ruling the contract void ab initio because it had not been executed by the Mayor as required by Government Code section 40602. On appeal from the judgment as a real party in interest, Athens principally contends the Mayor was appropriately deemed “absent” based on his refusal to carry out his ministerial duty, and the Mayor Pro Tempore was therefore authorized to execute the contract under Government Code section 40601.¹ As we explain, neither the City Attorney nor the Mayor Pro Tempore had the authority to deem the Mayor “absent” under the Government Code. Accordingly, we conclude the Mayor Pro Tempore's signature was ineffective to enter the contract on the City's behalf, and affirm the judgment on this basis.²

In the wake of the trial court's ruling, Athens filed its own complaint against the City seeking a writ of mandate directing the Mayor to execute the contract in accordance with Government Code section 40602. However, in the intervening period between the City Council's approval of the contract and Athens filing its complaint, Montebello voters approved an initiative requiring the City Council to utilize a competitive bidding process to award residential solid waste franchises. Because the residential portion of the contract had not been subject to competitive bidding, the trial court ruled it could not issue the requested writ, and sustained the City's demurrer on that basis. We conclude the trial court's ruling was correct as a matter of law.

Finally, Torres cross-appeals from the trial court's order denying his motion for private attorney general fees under Code of Civil Procedure section 1021.5. The trial court found Torres's attorney fees had been paid entirely by an organization of Athens's waste hauling competitors and, on that basis, concluded private attorney general fees were inappropriate because Torres bore no financial burden in litigating the case. We find no abuse of discretion in this ruling.

FACTS AND PROCEDURAL HISTORY

Athens or its predecessors have been the exclusive residential waste hauling franchisee in Montebello since 1962. In 2008, Robert Urteaga, then a Montebello City Council candidate, approached Athens about submitting a proposal to become the exclusive commercial waste hauling franchisee for the City. At the time, commercial contracts were handled by several different waste haulers, including Athens and many of its competitors, each of which had a seven-year rolling nonexclusive franchise under the Montebello Municipal Code. Urteaga believed an exclusive contract would be “a good idea for simplicity's sake.” Athens contributed to Urteaga's election campaign, and Urteaga ultimately won a seat on the City Council.

At its July 9, 2008 regular meeting, the City Council considered the proposed exclusive waste hauling contract. After hearing testimony, the City Council directed its staff to prepare a proposed contract granting an exclusive residential and commercial waste hauling franchise to Athens (the Contract). Athens was to begin performing the commercial portion in 2016, after the existing commercial franchises had been terminated.

At the next regular meeting on July 23, 2008, the City Council considered and approved several modifications to the Contract that were negotiated orally at the dais. The changes included (1) an amendment requiring Athens to pay a $500,000 proposal fee; (2) an amendment requiring Athens to pay the City 7.5 percent of its gross receipts for the collection of commercial solid waste; (3) an amendment eliminating a $2 per customer residential franchise fee; and (4) an amendment establishing $1.99 monthly charge for customers who desired an additional 90 gallon waste bucket.

On August 5, 2008, the City Council approved the Contract by a three-to-two vote. Urteaga, together with the Mayor Pro Tempore, Rosemarie Vasquez, and a third member of the City Council, Kathy Salazar, voted for the Contract.³ The Mayor, William Molinari, joined by another member of the City Council voted against. Thereafter, the City Attorney approved the form of the Contract and submitted it to Mayor Molinari for his signature.

According to the Mayor, he had the Contract in hand in August and September 2008, but he was unable to confirm that the orally negotiated changes had been properly incorporated. Due to his confusion over the changes, Mayor Molinari asked the City Attorney to place the final Contract on the City Council agenda before he executed it. The City Attorney did not respond to the request.

Contrary to Mayor Molinari's version of events, the City Attorney maintained the Mayor simply refused to sign the Contract because he objected to awarding Athens an exclusive commercial franchise. On August 25, 2008, the City Attorney prepared a memorandum advising the Mayor that he had a ministerial duty to execute the Contract as approved by the City Council. The memorandum admonished, “Your decision to not sign the [Contract] warrants a determination that for purposes of this [Contract] only, you are deemed ‘absent’ thus vesting in the Mayor Pro–Tem the authority to execute this contract.

[¶] I will instruct Mayor Pro–Tem Vasquez to sign the [Contract]. In addition, the contract will have the following notation ‘for purposes of this Agreement only, the Mayor is deemed absent from execution and thus Mayor Pro–Tem is authorized to execute this Agreement.’ ”

The Mayor did not execute the Contract. Though he was physically present at city hall on September 12, 2008, the Contract was apparently taken from the Mayor's mailbox, altered with the notation proposed by the City Attorney, then signed by the Mayor Pro Tempore. The same day, Mayor Pro Tempore Vasquez issued a statement explaining that she signed the Contract because “the Mayor has declined to execute the agreement negotiated by the City Council and the City Attorney.”

In April 2009, Athens paid the City the $500,000 proposal fee set forth in the Contract. In July 2009, Athens began performing the residential waste hauling portion of the Contract. In advance of its performance, Athens purchased four new compressed natural gas garbage trucks at a cost of $1.2 million and provided Montebello residents with new 90–gallon easy-roll automated waste containers at no charge to the residents. The new waste containers cost Athens between $1.5 and $1.7 million.

On April 23, 2009, Torres filed his petition for a writ of mandate to set aside the Contract. Among other things, the petition alleged the Contract was void because the City failed to comply with Government Code section 40602, which requires mayoral execution of all municipal contracts. The City responded with an anti-SLAPP motion, which the trial court denied on August 7, 2009. On October 6, 2009, the City appealed the ruling, staying the trial court proceedings.

In November 2009, Mayor Molinari and Mayor Pro Tempore Vasquez faced reelection. Montebello voters also qualified a recall of City Councilmembers Urteaga and Salazar, resulting in a February 2010 special election....