Filed 6/21/17 City of Riverside v. Symons Ambulance CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



CITY OF RIVERSIDE,

Plaintiff and Respondent,

v.

SYMONS AMBULANCE et al.

Defendants and Appellants.


E064693

(Super.Ct.No. RIC1503810)

O P I N I O N


APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed.
Garcia & Reed and Raul B. Garcia for Defendants and Appellants.
Gary G. Geuss, City Attorney, Robert L. Hansen, Assistant City Attorney, and Brandon S. Mercer, Deputy City Attorney for Plaintiff and Respondent.
I. INTRODUCTION
Plaintiff and respondent, City of Riverside (the City), sued defendants and appellants, Symons Ambulance and Symons Emergency Specialties, Inc. (collectively, Symons), for operating ambulance services in violation of the Riverside Municipal Code (RMC). The trial court granted a preliminary injunction prohibiting Symons from operating in violation of the RMC. On appeal from that order, Symons contends the local ordinance at issue is invalid under the Emergency Medical Services (EMS) System and the Prehospital Emergency Medical Care Personnel Act (EMS Act). (Health & Saf. Code, § 1797 et seq.) It also argues the local ordinance violates federal antitrust law and is therefore invalid. We conclude the City demonstrated through undisputed evidence that it is likely to prevail on the merits of its cause of action, and Symons failed to show the invalidity of the local ordinance. We thus hold the court did not err in granting the preliminary injunction and affirm.
II. FACTS AND PROCEDURE
According to the City’s complaint, RMC section 5.66.020 A. prohibits a person from operating ambulance services originating in the City unless the city council has granted that person a franchise to do so. The March 2015 complaint alleges Symons had been violating this section of the RMC since 2013, and moreover, the RMC authorizes the City to seek an injunction against any violation of the RMC. The City alleged a single cause of action for public nuisance and sought preliminary and permanent injunctions enjoining Symons from operating ambulance services originating in the City without a valid franchise.
The City filed a motion for preliminary injunction shortly after filing its complaint. Supporting declarations from the City’s interim fire chief, the deputy fire chief, and two battalion chiefs showed Symons had been providing interfacility ambulance transportation in the City without a franchise from 2013 to 2015. The City’s evidence also showed it had sent Symons a cease and desist letter and had issued numerous citations to Symons for violating RMC section 5.66.020 A. The City argued Symons’s continuous violation of the RMC was an immediate danger to the public’s health, safety, and welfare and constituted a public nuisance.
Symons’s opposition did not dispute that it was operating within the City without a City-issued franchise. But Symons argued the City lacked authority to regulate its services. Its evidence showed the County of Riverside (County) had authorized it to conduct interfacility transports within the County. Symons asserted that only the County had the authority to regulate interfacility ambulance services under the EMS Act. Symons also argued the City was violating federal antitrust law by imposing its franchise requirement.
The court granted the motion for preliminary injunction and enjoined Symons from “operating, conducting, maintaining, advertising or otherwise engaging in the operation of ambulance services unless in accord with RMC Chapter 5.66.”
III. DISCUSSION
An order granting a preliminary injunction does not adjudicate the ultimate rights in controversy. (Weingand v. Atlantic Sav. & Loan Assn. (1970) 1 Cal.3d 806, 820.) The court has merely concluded that, pending a trial on the merits, it should restrain the defendant from engaging in the conduct challenged in the complaint. (Ibid.) “A full hearing at trial is still required to adjudicate the ultimate rights in controversy . . . .” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 76.)
Our Supreme Court “has traditionally held that trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.” (IT Corp. v. County of Imperial, supra, 35 Cal.3d at pp. 69-70.)
This traditional test is modified when, as here, a governmental entity seeks to enjoin an alleged violation of an ordinance that specifically provides for injunctive relief. (IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 72.) In such a case, once a governmental entity “establishes that it is reasonably probable it will prevail on the merits, a rebuttable presumption arises that the potential harm to the public outweighs the potential harm to the defendant.” (Ibid., fn. omitted.)
 
“We review an order granting a preliminary injunction for abuse of discretion.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136.) At the same time, “questions underlying the preliminary injunction are reviewed under the appropriate standard of review. Thus, for example, issues of fact are subject to review under the substantial evidence standard; issues of pure law are subject to independent review.” (Id. at pp. 1136-1137.)
On appeal, Symons essentially challenges the court’s implied finding that the City is likely to prevail on the merits of its public nuisance claim. It does so by arguing that the basis for the public nuisance claim—RMC section 5.66.020 A.—is invalid. The validity or enforceability of RMC section 5.66.020 A. presents questions of statutory interpretation that we review de novo. But we begin with the City’s showing that it was likely to prevail on its public nuisance cause of action.
A. Undisputed Evidence Established a Violation of RMC Section 5.66.020 A.
A nuisance may be private, public, or both. (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1163.) “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.)
“[W]hen a legislative body with appropriate jurisdiction” expressly declares a particular activity or circumstance to be a nuisance, that activity or circumstance constitutes a nuisance per se. (City of Claremont v. Kruse, supra, 177 Cal.App.4th at p. 1163.) A city’s “legislative body may declare what constitutes a nuisance” by ordinance. (Gov. Code, § 38771; accord, Burton v. Municipal Court (1968) 68 Cal.2d 684, 693.) “‘“Nuisances per se are so regarded because no proof is required, beyond the actual fact of their existence, to establish the nuisance.”’” (City of Claremont v. Kruse, supra, 177 Cal.App.4th at p. 1164.) We presume legislative enactments, such as ordinances, are valid. (City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 496.)
Here, the RMC declares a public nuisance is “any condition caused or permitted to exist in violation of any of the provisions of” the RMC. (RMC, § 1.01.110 E.) RMC section 5.66.020 A. makes it unlawful to operate ambulance services originating in the City without a City-issued franchise or permit.
Applying these principles, the City established a probability of prevailing on its public nuisance cause of action, based on undisputed evidence that Symons had violated RMC section 5.66.020 A., which is presumptively valid, on numerous occasions. These violations established a nuisance per se. (RMC, § 1.01.110 E.) As in the trial court, Symons does not dispute it violated the terms of RMC section 5.66.020 A. Instead, it challenges the validity of the ordinance itself under the EMS Act and federal antitrust law. We turn now to these challenges.
B. Symons Has Not Demonstrated That the EMS Act Preempts or Invalidates RMC Section 5.66.020 A.
The EMS Act “created a comprehensive system governing virtually every aspect of prehospital” EMS in California. (County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 915 (County of San Bernardino).) As part of this system, “[e]ach county may develop an [EMS] program. Each county developing such a program shall designate a local EMS agency . . . .” (§ 1797.200.) Among other things, a county’s “local EMS agency may create one or more exclusive operating areas” (§ 1797.224), in which the local EMS agency “restricts operations to one or more emergency ambulance services or providers of limited advanced life support or advanced life support” (§ 1797.85).
The interfacility transport with which we are concerned constitutes emergency ambulance services for purposes of the EMS Act. (Schaefer’s Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 589-590.) That is, “‘emergency’ modifies ‘ambulance,’ not ‘services.’” (Id. at p. 589.) The definition of emergency ambulance services turns on whether emergency services are available, not on whether a particular patient actually needs that level of services. (Id. at pp. 589-590; accord, Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 405.) “Accordingly, ‘emergency ambulance service’ encompasses all services rendered by emergency ambulances, even if the ambulance is engaged in nonemergency interfacility transfers.” (Canister v. Emergency Ambulance Service, Inc., supra, at p. 405.)
Symons asserts the City lacks authority to promulgate and enforce RMS section 5.66.020 A. because the EMS Act preempts local regulation of EMS. In particular, Symons argues the EMS Act gives counties’ local EMS agencies—not cities—the authority to create exclusive operating areas for ambulance services.
It is true the “EMS Act preempts conflicting local ordinances and regulations.” (County of San Bernardino, supra, 15 Cal.4th at p. 922.) This is true when any state law conflicts with local legislation. (Cal. Const., art. XI, § 7; Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897.) “The party claiming that general state law preempts a local ordinance has the burden of demonstrating preemption.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1149.)
But Symons has completely failed to demonstrate a conflict between the local ordinance and the EMS Act. The question boils down to “statutory interpretation: to what extent does the EMS Act in general . . . grant authority over the provision of EMS services to counties and local EMS agencies alone, and to what extent does the statutory scheme permit qualifying cities and fire districts to share this authority?” (County of San Bernardino, supra, 15 Cal.4th at p. 922.) The short answer is that the EMS Act permits cities to retain authority over EMS under certain circumstances, and Symons fails to show these circumstances do not exist here. We thus reject Symons’s argument that the City has no authority to regulate interfacility ambulance transportation.
 
Section 1797.201 is the key provision. Its first sentence reads: “Upon the request of a city or fire district that contracted for or provided, as of June 1, 1980, prehospital [EMS], a county shall enter into a written agreement with the city or fire district regarding the provision of prehospital [EMS] for that city or fire district.” “Thus, section 1797.201 begins by giving cities and fire districts a choice of whether or not to request agreements with counties regarding [EMS]. The first sentence raises a question—what happens if cities or fire districts do not request written agreements with the county?—that the second sentence answers. That sentence reads: ‘Until such time that an agreement is reached, prehospital [EMS] shall be continued at not less than the existing level, and the administration of prehospital EMS by cities and fire districts presently providing such services shall be retained by those cities and fire districts . . . .’ [Citation.] Thus, until cities and fire districts reach agreements with counties, they are to retain administration of their prehospital EMS,” so long as they were already providing those services as of June 1, 1980. (County of San Bernardino, supra, 15 Cal.4th at p. 923.) Moreover, section 1797.201 does not require cities to request agreements with counties. (County of San Bernardino, supra, at p. 923.) Cities may retain their administrative power over EMS indefinitely. (Ibid.)
In this manner, qualifying cities may share authority with counties over the provision of EMS services. The ability of a county’s local EMS agency to create exclusive operating areas for ambulance providers “is made expressly subject to [section] 1797.201, and therefore would not permit a county or EMS agency to unilaterally displace a city or fire district continuing to operate [EMS].” (Valley Medical Transport, Inc. v. Apple Valley Fire Protection Dist. (1998) 17 Cal.4th 747, 759; accord, § 1797.224.)
Our Supreme Court construed section 1797.201 in County of San Bernardino and applied it to a dispute between a city and county over paramedic and ambulance services. (County of San Bernardino, supra, 15 Cal.4th at pp. 919-924.) The court concluded the city retained its right to administer paramedic services and specialized ambulance services within its borders, given that it had been doing so as of June 1, 1980. (Id. at pp. 919, 925, 934, fn. 4; see also id. at p. 924 [“[W]e conclude that under section 1797.201 a county may not contravene the authority of eligible cities and fire districts to continue the administration of their prehospital EMS without the latter’s consent, either through acquiescence or through formal agreement.”].) The city could not, however, expand beyond the EMS it had historically provided, absent the county’s consent. (Id. at p. 934.)
In another dispute over ambulance services—this time between a city fire district and a county-authorized ambulance provider—our Supreme Court confirmed that section 1797.201 authorizes a city or fire district to administer its own ambulance services indefinitely, so long as the city or fire district was administering those services as of the critical date. (Valley Medical Transport, Inc. v. Apple Valley Fire Protection Dist., supra, 17 Cal.4th at pp. 750, 755.)
 
Here, Symons contends the City has no authority to regulate interfacility ambulance transportation because only the County’s local EMS agency has that authority. It cites the provisions of the EMS Act and case law describing a county’s authority to create exclusive operating areas. There are at least two problems with this argument. First, even if the County EMS agency has sole authority to create exclusive operating areas, Symons produced no evidence that the City created an exclusive monopoly in one ambulance provider. Indeed, there was no evidence below about the number of franchises the City had granted. The City’s counsel represented in its reply brief and at oral argument in the trial court that the City has granted franchises to five different ambulance companies. Symons assumes, without setting forth any evidence, that the City’s franchise requirement is tantamount to creating an exclusive operating area.
Second, and more importantly, any citation to or discussion of section 1797.201, the key provision, is conspicuously absent from Symons’s briefing. Symons fails to come to grips with section 1797.201 and the California Supreme Court authority construing it. Under this section, cities may retain the authority to administer EMS if they have historically done so. Symons has produced no evidence whatsoever that the City either did not provide ambulance services as of June 1, 1980, or gave up its authority over those services by agreement with the County. Insofar as section 1797.201 allows cities to retain authority over EMS, Symons does not demonstrate a conflict between the RMC and the EMS Act.
C. Symons Has Not Established That Federal Antitrust Law Invalidates RMS Section 5.66.020 A.
Symons’s argument that the City’s franchise requirement is anticompetitive and violates federal antitrust law (the Sherman Act) is similarly flawed. “Section 1 of the Sherman Act provides in pertinent part that ‘[e]very contract, combination . . . , or conspiracy, in restraint of trade or commerce among the several States . . . , is declared to be illegal.’” (15 U.S.C. § 1; Community Commun. Co. v. City of Boulder, Colo. (1982) 455 U.S. 40, 47, fn. 9 (Community Commun.) We again note Symons produced no evidence whatsoever that the City had granted one ambulance company an exclusive monopoly to operate in the City. It simply assumes that the City’s franchising system constitutes a contract, combination, or conspiracy “in restraint of trade or commerce among the several States.” (15 U.S.C. § 1.) We will assume for the sake of argument that the City’s practice of franchising or permitting ambulance providers constitutes an anticompetitive restraint on trade.
Even so, the Sherman Act does not apply to the actions of the sovereign states. (Community Commun., supra, 455 U.S. at pp. 48-49; Parker v. Brown (1943) 317 U.S. 341, 351.) “While ‘the States regulate their economies in many ways not inconsistent with the antitrust laws,’ [citation], in some spheres they impose restrictions on occupations, confer exclusive or shared rights to dominate a market, or otherwise limit competition to achieve public objectives. If every duly enacted state law or policy were required to conform to the mandates of the Sherman Act, thus promoting competition at the expense of other values a State may deem fundamental, federal antitrust law would impose an impermissible burden on the States’ power to regulate.” (State Bd. of Dental Examiners v. F.T.C. (2015) 135 S.Ct. 1101, 1109.)
Under the state action doctrine, municipalities may also be cloaked with the state’s immunity to antitrust liability. That is, states may “sanction anticompetitive municipal activities and thereby immunize municipalities from antitrust liability.” (Community Commun., supra, 455 U.S. at p. 51.) State action immunity applies to “municipal conduct engaged in ‘pursuant to state policy to displace competition with regulation or monopoly public service,’” recognizing that a “[s]tate may frequently choose to effect its policies through the instrumentality of its cities and towns.” (Ibid.) The “‘state policy’ relied upon” must be “‘clearly articulated and affirmatively expressed.’” (Ibid.)
Accordingly, a municipality’s ordinance is “exempt from antitrust scrutiny” if “it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy.” (Community Commun., supra, 455 U.S. at p. 52.) But the state Legislature need not explicitly permit municipalities to engage in anticompetitive conduct. (Town of Hallie v. City of Eau Claire (1985) 471 U.S. 34, 42.) It is sufficient if the “anti-competitive conduct was a foreseeable result of the authority granted by the state legislature to the locality to provide and regulate a service.” (Mercy-Peninsula Ambulance, Inc. v. County of San Mateo (9th Cir. 1986) 791 F.2d 755, 757.)
 
Here, “California has ‘clearly articulated’ its intention to grant state action immunity to local governments that implement [EMS] plans that are consistent with the terms of the EMS Act.” (Redwood Empire Life Support v. County of Sonoma (9th Cir. 1999) 190 F.3d 949, 953.) The provisions of the EMS Act constitute an affirmatively expressed state policy to displace competition with regulation in the matter of local governments providing EMS. Section 1797.201, permitting cities to administer prehospital EMS so long as they provided those services as of June 1, 1980, is unambiguously part of this statutory scheme. Anticompetitive conduct is a foreseeable result of granting a municipality broad authority to administer EMS. (Town of Hallie v. City of Eau Claire, supra, 471 U.S. at p. 42 [state statutes authorizing a city to provide sewage services and determine the areas to be served evidenced a clear state policy to displace competition because “it is clear that anticompetitive effects logically would result from this broad authority to regulate.”].) Therefore, a city administering EMS services consistent with the EMS Act is cloaked with state action immunity to federal antitrust law.
As we discuss in part III.B., Symons fails to show the City is acting without authority under the EMS Act. The City’s administration of ambulance services within its jurisdiction may enjoy state action immunity, provided it is acting under section 1727.201’s grant of administrative authority to cities. Symons simply has not demonstrated that federal antitrust law invalidates the City’s ordinance.
Symons relies yet again on the provision of the EMS Act giving counties’ EMS agencies authority to create exclusive operating areas—section 1797.224—and argues this is a clearly articulated state policy immunizing only counties under the EMS Act. The Legislature amended the EMS Act by enacting section 1797.224 and two other sections shortly after the United States Supreme Court set forth state action immunity for municipalities. (County of San Bernardino, supra, 15 Cal.4th at pp. 917-918.) With that case law in mind, the Legislature specifically expressed in these amendments its intent to provide state action immunity for the creation of exclusive operating areas by counties’ EMS agencies. (§ 1797.6; County of San Bernardino, supra, at pp. 917-918.) These amendments no doubt provide a clearly articulated and affirmatively expressed state policy “‘to displace competition with regulation or monopoly public service.’” (Community Commun., supra, 455 U.S. at p. 51.) But there is no reason to believe state action immunity under the EMS Act ends there, when another portion of the statutory scheme (§ 1797.201) authorizes cities to act as well. (County of San Bernardino, supra, 15 Cal.4th at p. 914 [“[E]ligible cities and fire districts may retain administrative control of their [EMS] until they agree otherwise with the counties in which they are located.”].) The authorization for cities to administer EMS stands on equal footing with the authorization for counties to create exclusive operating areas. Section 1797.224 makes clear that the two coexist, when it states: “Nothing in this section supersedes Section 1797.201.” In light of the EMS Act’s provision for cities to share authority for EMS with counties, we disagree with Symons that the EMS Act cloaks only counties with state action immunity.
Symons also contends state action immunity applies only when a local government acts under “‘state direction and supervision,’” and while the EMS Act provides for a state authority to review the plans of county EMS agencies (§§ 1797.1, 1797.254), there is no provision for state review of the City’s actions. Symons’s premise is wrong. State action immunity does not require “active state supervision . . . in cases in which the actor is a municipality.” (Town of Hallie v. City of Eau Claire, supra, 471 U.S. at p. 46, fn. omitted.) “Once it is clear that state authorization [to act] exists, there is no need to require the State to supervise actively the municipality’s execution of what is a properly delegated function.” (Id. at p. 47.) When a “nonsovereign actor controlled by active market participants” claims that it enjoys state action immunity, active state supervision is required, but that is not the case here, where we are dealing with a municipality. (State Bd. of Dental Examiners v. F.T.C., supra, 135 S.Ct. at p. 1110; Town of Hallie v. City of Eau Claire, supra, at pp. 46-47.)
IV. DISPOSITION
In sum, the City demonstrated a reasonable probability that it would prevail on the merits of its public nuisance cause of action, based on undisputed evidence Symons had violated RMC section 5.66.020 A., a presumptively valid ordinance. Symons’s opposition did not disturb this showing. It failed to demonstrate the City’s ordinance conflicted with the EMS Act or was invalid under federal antitrust law. The court did not, therefore, abuse its discretion in granting the preliminary injunction. The order granting the preliminary injunction is affirmed. The City shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

MILLER
Acting P. J.

CODRINGTON
J.