Perry v. City of San Diego CA4/1 ( 2021 )

Filed 5/17/21 Perry v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LEO PERRY et al., D077064
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2017-
00045772-CU-MC-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
Robert P. Ottilie for Plaintiffs and Appellants Leo Perry, Margaret
Parks, Bruce Waterman, Sapna Iyer, Casey Culbertson, Peter
Chiraseveenuprapund, Jo Ann Yang, Therodoros Piknis, Robert Stephens,
Kimberley Deede, Justin McBride, Traci Snow, Kevin Bowens, John
Mannion, Hadley Le, Brian Armston and Edward Cramp.
Mara W. Elliot, City Attorney, George F. Schaefer, Assistant City
Attorney, and Jenny K. Goodman, Deputy City Attorney for Defendant and
Respondent.
Homeowners Leo Perry, Margaret Parks, Bruce Waterman, Sapna Iyer,
Casey Culbertson, Peter Chiraseveenuprapund, Jo Ann Yang, Therodoros
Piknis, Robert Stephens, Kimberley Deede, Justin McBride, Traci Snow,
Kevin Bowens, John Mannion, Hadley Le, Brian Armston and Edward
Cramp (collectively, Homeowners) sought free refuse collection from the City
of San Diego for their 12 condominiums located in a gated complex in the
Hillcrest neighborhood of San Diego. The City refused the request to initiate
service on the grounds the complex did not qualify under its Waste
Management Regulation (WMR). In response to the denial of service, the
Homeowners brought suit against the City asserting the WMR was issued in
violation of the San Diego Municipal Code, and claiming that the City’s use of
the WMR to deny them service violated their equal protection rights.
After discovery, the City brought a successful motion for summary
judgment. Thereafter, the trial court entered judgment in the City’s favor.
The Homeowners now appeal, contending the court erred by finding the
WMR was validly promulgated and that there were no triable issues of fact
with respect to their equal protection claims. As we shall explain, we
conclude the WMR is lawful and the court did not err by dismissing the
Homeowners’ claims. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2016, the developer of the 12 condominiums at issue obtained a
tentative map waiver allowing for the subdivision of a single parcel located at
3740 and 3750 Third Avenue. After the development of the condominiums,
they were sold to the individual Homeowners, who are the plaintiffs and
appellants in this litigation. In the fall of 2016, the Homeowners submitted
an Application for Refuse and Recycling Collection Services for the properties
to the City’s Environmental Services Department (ESD). The City
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determined the property was a multi-family residential facility and evaluated
the application under the WMR’s multi-family eligibility criteria. ESD
employee Albert Villa visited the property to determine its eligibility for
service under the WMR. Villa completed a form worksheet for the property
determining that it was not eligible for City service because the property
lacked sufficient “setout space” in the designated pickup location for the
number of trash cans (24) required by the WMR for the complex’s 12 units.
Based on Villa’s determination, ESD program manager Matthew
Cleary prepared a denial letter to the Homeowners informing them they were
not eligible for City provided refuse and recycling collection under the WMR
because the property had insufficient setout space. The Homeowners
appealed the decision. As a result, Cleary visited the property himself.
Cleary consulted with the City’s Developmental Services Department, which
also classified the property as multi-family. Cleary also confirmed that the
12 units would require 120 feet of setout space for 24 cans under the WMR
and that the alley adjacent to the property only provided 72.5 feet of space.
Cleary provided his findings confirming Villa’s initial determination to ESD
Director Mario Sierra.
Sierra submitted a declaration in the summary judgment proceeding
attesting that he conducted his own independent investigation that included
two visits to the property and several calls and a meeting with the property
developer, Michael Turk, Jr. After completing his investigation, Sierra
determined the property was not eligible for refuse and recycling collection
because the property did not have “reasonable access,” as that term is defined
in the WMR, to a City-designated collection point. On November 3, 2016,
Sierra sent a letter to Turk explaining the City’s denial because of a lack of
reasonable access. Specifically, Sierra stated “reasonable access does not
3
exist for the Property because residents would have to move their collection
containers from either their individual garages across a private communal
driveway or their respective front doors across a private communal walkway
to a City-designated collection point in the public alley behind the Property.”
Thereafter, the Homeowners retained counsel who sent the City a
demand letter arguing the denial was improper. On December 15, 2016, the
City Attorney’s office responded with a detailed letter outlining the basis for
the City’s rejection of the Homeowners’ request for service. The letter
provided background about the San Diego Municipal Code provision on which
the Homeowners’ demand letter was based (San Diego Mun. Code, § 66.0127)
and the WMR, and explained the request for service was denied because of a
lack of both setout space and reasonable access.
After filing an unsuccessful claim with the City, on November 30, 2017,
the Homeowners filed their complaint initiating this litigation. The operative
complaint, the Verified First Amended Complaint and Petition (FAC), was
filed on April 5, 2018. The FAC alleges four causes of action based on the
City’s alleged violation of the Homeowners’ equal protection rights:
(1) declaratory relief, (2) mandamus, (3) injunctive relief, and (4) breach of
statutory duties. Following over a year of discovery, on July 12, 2019, the
City moved for summary judgment. After briefing and the submission of
evidence, on September 30, 2019, the trial court conducted a hearing on the
motion. Before the hearing, the court published its tentative ruling granting
the motion and rejecting the plaintiffs’ claim that the WMR was invalid. The
court found the WMR was authorized by San Diego Municipal Code
section 66.0127, the code provision governing refuse collection as amended by
ballot initiative in 1986, and 66.0124. The trial court also rejected the
Homeowners’ equal protection claims, finding no triable issues of fact related
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to the City’s denial of service. After a lengthy oral argument, the court
confirmed its tentative ruling granting the City’s motion for summary
judgment.
On October 15, 2019, the Homeowners filed a motion for
reconsideration under Code of Civil Procedure section 1008 based on what
they characterized as newly discovered documents concerning the City’s
interpretation of San Diego Municipal Code section 66.0127, subdivision (c)
related to the collection of refuse from vacation rentals in the Mission Beach
neighborhood of San Diego. The City opposed the motion. At the November
8, 2019 hearing on the motion, Homeowners’ counsel conceded the “new”
evidence had been produced in response to its discovery requests before the
summary judgment proceedings, but that it was not included in their
opposition because counsel had not timely reviewed the documents.
In its ruling on the motion for reconsideration, the court found relief
was not available because the documents on which the motion was based
were not new; rather, they were produced to the Homeowners by the City
prior to summary judgment and also had been publicly available on the City’s
website since November 2018. The court also noted that even if it were to
assume the evidence was new, it would not revise its earlier order granting
summary judgment. On November 19, 2019, the Homeowners filed a notice
of appeal from the summary judgment order. On November 22, 2019, the
court entered judgment in favor of the City and the following week the
Homeowners filed an amended notice of appeal from the judgment.
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DISCUSSION
I
Summary Judgment Standards
Code of Civil Procedure section 437c, subdivision (c) provides that
summary judgment is to be granted when there is no triable issue of material
fact and the moving party is entitled to judgment as a matter of law. A
defendant “moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850.) A defendant may meet this burden either by showing that one or
more elements of a cause of action cannot be established or by showing that
there is a complete defense. (Ibid.) If the defendant’s prima facie case is met,
the burden shifts to the plaintiff to show the existence of a triable issue of
material fact with respect to that cause of action or defense. (Aguilar, at
p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
We review a summary judgment ruling de novo. (Certain Underwriters
at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) “In
practical effect, we assume the role of a trial court and apply the same rules
and standards which govern a trial court’s determination of a motion for
summary judgment.” (Lenane v. Continental Maritime of San Diego, Inc.
(1998) 61 Cal.App.4th 1073, 1079.) “[W]e are not bound by the trial court’s
stated reasons for its ruling on the motion; we review only the trial court’s
ruling and not its rationale.” (Gafcon, Inc. v. Ponsor & Associates (2002) 98
Cal.App.4th 1388, 1402.)
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II
Validity of the WMR
As discussed, the Homeowners challenge the trial court’s determination
that the WMR is valid. The City responds that the regulation was properly
promulgated, and the Homeowners’ interpretation of the San Diego
Municipal Code provision under which the regulation was enacted is
incorrect. We agree with the City.
A
History of the People’s Ordinance
In 1919, the People of San Diego voted to adopt Ordinance No. 7691,
known as the “People’s Ordinance.” The People’s Ordinance imposed on the
City the duty to collect refuse (defined in the Ordinance as “garbage, waste
matter, ashes, night soil, market refuse and dead animals”) within the City’s
geographical limits at least once each week.
The Ordinance has been amended twice by ballot initiative, first in
1981 and again in 1986. The purpose of the 1981 amendment was to limit
“the amount of refuse which could be collected from commercial/industrial
sources” and establish “fees for private refuse haulers dumping
nonresidential refuse in city landfills.” The amendment, however, left much
of the original ordinance’s language intact and was inconsistent with the
actual collection services being provided by the City at the time.
As a result, in 1986, the City government proposed comprehensive
changes to the People’s Ordinance. Those changes were enacted by voters
that year and remain in place today. A report by the City’s manager to the
Rules Committee of the City Council explained the purposes of the 1986
amendments were to: (1) clarify the 1981 change that eliminated the City’s
obligation to collect commercial refuse (viewed by the City Manager as
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subsidization of commercial activity); (2) eliminate the City’s collection of
residential refuse for residences located on private property, particularly
residences within developments “which utilize streets that do not meet City
standards”1; (3) allow the adjustment of “rules and regulations involving day
to day collection and disposal methods” by the City Manager, allowing the
City “to adjust to modern technology and/or emergencies as they evolve”; and
(4) eliminate antiquated language in the ordinance.
The report also stated a goal of the proposed revision was “to create an
equal standard for all city residents: curbside pickup of residential trash. If
residents of apartment complexes, condominiums and other planned
residential developments are willing to comply with [the City’s] standard,
then they will continue to be eligible for city services. If they desire a higher
level of service, then they will be free to contract with private haulers for that
service.”
The ballot materials for the amendments stated they would define the
terms “refuse,” “residential refuse,” “nonresidential refuse,” “residential
facility,” “nontransient occupancy” and “small business enterprise.” The
materials also explained the ordinance would “[a]uthorize the City Council to
regulate by ordinance the collection, transportation and disposal of refuse so
that residential refuse shall be collected, transported, and disposed of by the
City at least once each week with no City fee imposed for same by City
Forces.”
The ballot materials explained that the City “shall not collect
nonresidential refuse,” except from small businesses limited to an amount no
1 The amendment contained a grandfathering provision for those
residences located on private property for which the City had obtained a hold
harmless agreement preventing liability for damage to such property.
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greater than 150% of the refuse generated by an average residential dwelling.
The ballot materials also stated that fees established by the City for
nonresidential refuse cannot exceed the ascertainable costs to the City for
such services. Lastly, the materials explained the amendment “[p]rovides
that pursuant to ordinance the City Manager may promulgate rules and
regulations to provide for the collection, transportation and disposal of
refuse.”2 (Italics added.)
The 1986 initiative added the following provision to the San Diego
Municipal Code, currently codified at section 66.0127:
(a) As used in this People’s Ordinance:
(1) “Refuse” means waste material of any nature or
description generated within the City limits, excluding
hazardous or toxic chemicals, wastes, materials or
substances as defined now or hereafter by federal or state
law or regulation;
(2) “Residential Refuse” means refuse, as defined herein,
normally generated from a Residential Facility and which
is placed at the curb line of public streets at designated
times in approved containers;
(3) “Nonresidential Refuse” means all refuse that is not
Residential Refuse, as defined herein;
(4) “Residential Facility” means a single family or multi–
family residential structure used and occupied for
Nontransient Occupancy;
(5) “Nontransient Occupancy” means occupancy through
ownership, lease or rental for periods of one month or
more.
2 The parties agree that the references to manager in the San Diego
Municipal Code now apply to the mayor.
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(6) “Small business enterprise” means a commercial
establishment providing sales and services to the public
and licensed or taxed by the City.
(b) No person shall collect, transport or dispose of any refuse
except as provided herein.
(c) The City Council shall by ordinance regulate and control the
collection, transportation and disposal of all refuse provided that:
(1) Residential Refuse shall be collected, transported and
disposed of by the City at least once each week and there
shall be no City fee imposed or charged for this service by
City forces;
(2) The City shall not collect Nonresidential Refuse, except
that Nonresidential Refuse from a small business
enterprise may be collected by City Forces if authorized by
the City Council and limited to once a week service in an
amount no greater than one hundred fifty percent (150%) of
the refuse generated by an average City residential
dwelling unit. There shall be no City fee imposed or
charged for this service by City Forces;
(3) The City shall not enter upon any private property to
collect any refuse except in the case of public emergency or
pursuant to a hold harmless agreement in effect as of the
date of adoption of this ordinance;
(4) Fees established by ordinance of the City Council for
disposal of Nonresidential Refuse shall not exceed the full
ascertainable cost to the City for such disposal.
(d) Pursuant to the ordinance duly adopted by the City Council,
the City Manager may then duly promulgate such rules and
regulations as are appropriate to provide for the collection,
transportation and disposal of refuse.[ 3]
3 The provision was originally numbered 66.0123 in 1986.
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Section 66.0124 of the San Diego Municipal Code, whose history is not
illuminated in the record, also provides authority for the adoption of
regulations governing the collection of refuse. It states: “Rules and
Regulations. [¶] The collection and subsequent transportation and disposal
of refuse within the City of San Diego is under the supervision of the
Manager who shall have the power to promulgate rules and regulations
regulating such collection and subsequent transportation and disposal,
including but not limited to: [¶] (a) Collection routes and scheduling and
designation of disposal sites and any limitations thereon; [¶] (b) Service
standards and pickup locations; and [¶] (c) Handling of hazardous materials.
[¶] A copy of said rules and regulations and all amendments thereto shall be
sent by registered or certified mail, postage prepaid, to all affected franchises
addressed to their last place of business. To the extent not otherwise
provided by law, it shall be unlawful for a franchisee to collect and
subsequently transport or dispose of refuse contrary to any regulation, order,
permit or requirement promulgated by the Manager.”
B
The Waste Management Regulation
In 2010, under the authority provided by these two municipal code
provisions, the City adopted the WMR. The regulation’s stated purpose “is to
set forth the criteria for determining whether a residential facility is eligible
to receive City Force provided Collection Services, to establish standards for
Collection Services provided by City Forces, to regulate the placement of
refuse, recycling, and greenery containers for collection, and to provide
limitations on City Force Collection Services to any location which would
require the violation of any federal, state or local statute, regulation or
ordinance including but not limited to the California Vehicle Code.” The
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WMR has been maintained on the City’s website since its adoption at
[as of May 17,
2021], archived at .
Section II of the WMR sets forth three general eligibility requirements
for “City Force” residential refuse collections services: (1) The residence must
be located in the corporate limits of the city. (2) The residence must be
located on, addressed on, and contiguous to a public street or alley with
reasonable access to a collection point and safe access for City collection
vehicles. Additionally, there must be adequate space for proper placement
and separation of the regulation’s required number of containers without
obstructing traffic. (3) Finally, the residence must have adequate on-site
storage space for the requisite containers.
Section II of the WMR also contains four “limitations on services”:
(1) The City will not service residences in gated communities if any of the
residences in the community do not have reasonable access to a dedicated
public street or alley. The regulation’s definitions state “Reasonable Access
means the Residential Facility is located immediately adjacent and
contiguous to a designated collection point at the curb line of a City dedicated
public right-of-way which is directly accessible from the Residential Facility
property and does not require moving the collection container across a private
street, private alley, private communal driveway, or other private property
aside from the Residential Facility property.” (2) The City will not service
multi-family residences without adequate storage space on the property for
the appropriate number of containers. (3) The City will not service
residences which require City Forces to travel across a private street or alley.
And (4) the City will not service multi-family residential units in a mixed-use
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facility where the commercial units receive service from a City-franchised
collection company.
The regulation contains additional eligibility requirements for multi-
family residential facilities, which are set forth in “Attachment 1” to the
regulation.4 These additional requirements are imposed in Section III of the
WMR, titled “Initiation of City Force Refuse Collection Services,” which
states “[t]he criteria for determining the eligibility of Multi-family
Residential Facility to receive City Force provided Collection Services are
shown on Attachment 1. All of the criteria must be met or the facility will be
deemed ineligible to receive City Force provided Collection Services.”
Section III further provides that “Requests for the initiation of City
Force provided Collection Services for multi-family complexes, apartments,
condominium projects, etc., will be approved or disapproved based on the
ability of the entire complex to meet the standards in these rules and
regulations, provided that a residential unit, within a multi-family complex,
which has Reasonable Access as defined herein and meets and complies with
the other rules and regulations herein may receive City Force provided
Refuse Collection Services at the Director’s discretion. Service will not be
provided to a single unit or multiple units within a complex unless adequate
onsite storage and curb side or alley frontage set out space is available for all
units and all Refuse, Recyclable Material, and Yard Waste containers.”
4 The regulation defines “Residential Facility” as “a single family or
multi-family residential structure used and occupied for Non-Transient
Occupancy that is addressed and located on and can be serviced from a
dedicated public street or dedicated public alley within the City.” Non-
transient occupancy is defined as “occupancy through ownership, lease or
rental for periods of one month or more.”
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Section IV of the WMR sets forth “Conditions for Service.” This section
includes the City’s requirement for the amount of curb or alley space needed
for refuse containers. It states that “Containers must be placed at the curb
line of a dedicated public street or dedicated public alley with the wheels
against the curb and at least three feet from other automated collection
containers, parked cars, lamp posts, telephone poles and guy wires,
mailboxes or any other obstruction. Containers must be placed side-by-side,
not one in front of another, and must not be placed directly under a tree, low
utility wire, basketball hoop, building overhang or other overhead
obstruction.”
Attachment 1 contains a substantially similar requirement for multi-
family facilities. It states “[t]he dedicated public streets and/or dedicated
public alleys which will serve as collection locations must have adequate
space for the proper placement and separation of all Refuse and Recyclable
Material containers without obstructing bike lanes, on-site parking, or the
safe and normal flow of traffic; violating any laws; or creating safety hazards
for the public, the collection vehicle or the collection crew. The amount of
curbside or alley frontage available for container set out must be equal to or
greater than five (5) linear feet for each container using the number of units
in the complex and the minimum container requirements ….”5
5 The City’s brief explains that its “approved containers are about [two
feet] in width,” thus the five feet requirement in the multi-family attachment
is equivalent to the requirement in the conditions of service for all residences,
contained in Section IV of the WMR, of three feet of space plus two feet for
each container.
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C
Analysis
As an initial matter, we address the City’s assertion in its brief that the
Homeowner’s operative complaint did not challenge the validity of the WMR,
rather only its application to these Homeowners’ properties. We do not agree
with this narrow characterization of the Homeowners’ claims. Rather, the
FAC alleges that the City “cannot impose an arbitrary and capricious
regulation to defeat the material purpose of the underlying Ordinance” and
its promulgation of the WMR was “in contradiction to [its] obligations under
the People’s Ordinance of 1919, even as amended.” Further, the complaint
asserts that the setout space and reasonable access requirements of the WMR
are not “lawfully adopted regulations” because they defeat the ordinance’s
basic purpose. These claims constitute a challenge to the validity of the
WMR.
In addition, the Homeowner’s opposition to the City’s motion for
summary judgment made clear its position that the WMR was not
enforceable—against the Homeowners or any other City resident—because
the WMR’s eligibility requirements exceeded the scope of authority granted
to the City by the 1986 amendment to People’s Ordinance. The Homeowners’
position in the trial court was that the motion for summary judgment should
be denied because the promulgation of the WMR was an unauthorized
elimination of services in direct conflict with the People’s Ordinance, and not
a valid exercise of regulatory authority. Finally, the trial court explicitly
ruled that “[t]he standards set forth within the WMR regulation fall squarely
within the scope of the authority conferred on the Mayor by [San Diego
Municipal Code] sections 66.1024 and 66.127(d).” Accordingly, the issue is
properly before this court.
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While we agree with the Homeowners that the validity of the WMR
was litigated in the trial court and is properly before this court, we reject the
Homeowners’ contention that the WMR exceeded the scope of authority
granted to the City by the 1986 ballot initiative. The City’s promulgation of
the WMR was a quasi-legislative act. “It is a ‘black letter’ proposition that
there are two categories of administrative rules and that the distinction
between them derives from their different sources and ultimately from the
constitutional doctrine of the separation of powers. One kind—quasi-
legislative rules—represents an authentic form of substantive lawmaking:
Within its jurisdiction, the agency [here, the City] has been delegated the
[electorate’s] lawmaking power. [Citations.] Because agencies granted such
substantive rulemaking power are truly ‘making law,’ their quasi-legislative
rules have the dignity of statutes. When a court assesses the validity of such
rules, the scope of its review is narrow. If satisfied that the rule in question
lay within the lawmaking authority delegated by [the electorate], and that it
is reasonably necessary to implement the purpose of [the law], judicial review
is at an end.” (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 10–11.)
Stated another way, “ ‘[i]n reviewing the legality of a regulation
adopted pursuant to a delegation of legislative power, the judicial function is
limited to determining whether the regulation (1) is “within the scope of the
authority conferred” [citation] and (2) is “reasonably necessary to effectuate
the purpose of the statute” [citation ]’ (Agricultural Labor Relations Board v.
Superior Court (1976) 16 Cal.3d 392, 411.) ‘These issues do not present a
matter for the independent judgment of an appellate tribunal; rather, both
come to this court freighted with [a] strong presumption of regularity....’
(Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 175.) Our inquiry
16
necessarily is confined to the question whether the classification is ‘arbitrary,
capricious or [without] reasonable or rational basis.’ ” (Wallace Berrie & Co.
v. State Bd. of Equalization (1985) 40 Cal.3d 60, 65.)
As set forth above, the 1986 amendment to the People’s ordinance,
specifically the change contained in San Diego Municipal Code
section 66.0127, subdivision (d), gives the City the authority to adopt the
regulations at issue here. It states that the City may “duly promulgate such
rules and regulations as are appropriate to provide for the collection,
transportation and disposal of refuse.” The rules at issue do just this. (See
Castaneda v. Holcomb (1981) 114 Cal.App.3d 939, 942 [“If the language of the
provision is free of ambiguity, it must be given its plain meaning; rules of
statutory construction are applied only where there is ambiguity or conflict in
the provisions of the charter or statute, or a literal interpretation would lead
to absurd consequences.”].) Contrary to the Homeowners’ assertion that the
regulation contravenes the People’s Ordinance, the WMR appropriately sets
standards for residences to obtain the free collection provided by the City.
The spacing and access requirements challenged by the Homeowners directly
concern “the collection” of refuse and allow the City to provide cost-effective
and safe services. As the trial court stated in its order granting summary
judgment, “the WMR is reasonably necessary to address the operation
efficiency, safety, and cost-effective administration of the City’s waste
management system.”
Further, the regulation also falls within the authority granted to the
City by San Diego Municipal Code section 66.0124, which provides that “[t]he
collection and subsequent transportation and disposal of refuse within the
City of San Diego is under the supervision of the” Mayor and delegates to the
Mayor “the power to promulgate rules and regulations regulating such
17
collection and subsequent transportation and disposal, including but not
limited to … [c]ollection routes and scheduling and designation of disposal
sites and any limitations thereon” and “[s]ervice standards and pickup
locations.” The WMR’s rules concerning how much space is required for
collection fall squarely within this delegation of authority and effectuate the
ordinance’s purpose to regulate refuse collection and require residences to
adjust to the collection technology used by the City.
The reasonable access rules, which prohibits City employees from
entering private property and precludes service if residences do not have
access to a collection point, likewise fall directly within the authority granted
by San Diego Municipal Code section 66.0127, subdivision (c)(3), which states
that the “City shall not enter upon any private property to collect any refuse
….” The Homeowners’ assertion that the City did not have authority to
include this prohibition in the WMR is plainly without merit.
In sum, we agree with the trial court’s conclusion that the WMR was
duly authorized by the San Diego Municipal Code and was not “ ‘arbitrary,
capricious or [without] reasonable or rational basis.’ ” (Wallace Berrie & Co.
v. State Bd. of Equalization, supra, 40 Cal.3d at p. 65.)6
6 In a disjointed argument in their briefing, the Homeowners contend the
two memoranda written by the City Attorney in 2017 concerning the
collection of refuse in Mission Beach contradict the City’s position and show
the regulation was not authorized by the electorate. As noted above, these
documents were produced by the City prior to its filing of the motion for
summary judgment, but only introduced by the Homeowners after the motion
was granted as part of their motion for reconsideration of the summary
judgment ruling. As the City points out, the Homeowners make no argument
to this court concerning the trial court’s denial of the motion for
reconsideration, nor do they provide any basis for this court to consider the
documents. Additionally, these documents address the City’s collection of
refuse from short-term vacation rentals, and we fail to see their relevance to
this case.
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III
There Are No Triable Issues of Material Fact
The Homeowners next contend that the trial court erred by concluding
there were no triable issues of material fact with respect to their equal
protection claims. Specifically, they argue there was disputed evidence
concerning (1) whether their properties were properly categorized by the City
as multi-family; (2) whether the City had a rational basis to treat multi-
family and single-family residences differently; and (3) whether the City had
a rational basis for its reasonable access requirement.
A
Equal Protection Standards
“ ‘ “The concept of the equal protection of the laws compels recognition
of the proposition that persons similarly situated with respect to the
legitimate purpose of the law receive like treatment.” ’ [Citation.] ‘The first
prerequisite to a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.’ [Citations.] This initial
inquiry is not whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for the purposes of the law challenged.’ ”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley), italics omitted.)
“[N]either the Fourteenth Amendment of the Constitution of the United
States nor the California Constitution [citations] precludes classification by
the Legislature or requires uniform operation of the law with respect to
persons who are different.” (People v. Guzman (2005) 35 Cal.4th 577, 591.)
19
B
The WMR’s Contiguous Space Requirement
The Homeowners contend that conflicting evidence about the proper
characterization of their properties precluded summary judgment of their
equal protection claims based on the WMR’s setout space requirements. This
assertion is intertwined with their contention that they were treated
differently from single-family residence owners for purposes of the
requirement without any reasonable justification for the disparity.
As an initial point of clarification, the WMR does treat multi-family
and single-family residences in slightly different manners with respect to the
regulation’s space requirements. Both types of housing are subject to the
WMR’s general eligibility requirement that the facility’s public collection
point have adequate space for proper placement and separation of the
required number of containers. The specific space requirements for multi-
family residential facilities, however, are set forth both in Attachment 1 to
the WMR and in the WMR’s conditions of service. Single-family homes, on
the other hand, are not subject to the space requirement in Attachment 1,
only to the space requirement in the conditions of service.
As described, the WMR requires the “[o]wners/managers of multi-
family Residential Facilities seeking to transfer from privately contracted
collection services to City Force provided Collection Services” to meet the
requirements of Attachment 1 to the WMR. In turn, the attachment states
that the “dedicated public streets and/or dedicated public alleys which will
serve as collection locations must have adequate space for the proper
placement and separation of all Refuse and Recyclable Material containers
….” Further, “the amount of curbside or alley frontage … must be equal to or
greater than five (5) linear feet for each container ….”
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Single-family homes are subject to the same restriction, but it appears
in the condition of service section of the WMR. As the City explains, like the
requirement for multi-family homes contained in Attachment 1, the
conditions of service require all homeowners to have room for three feet of
space between their containers and other objects. Although the space
requirement is explained in a slightly different way in Attachment 1, the
requirements are the same. We agree with the City that the distinction
drawn by the Homeowners is one without a difference, and is not “ ‘a
classification that affects two or more similarly situated groups in an unequal
manner.’ ” (Cooley, supra, 29 Cal.4th at p. 253, italics omitted.) Accordingly,
the Homeowners’ equal protection claim based on this requirement was
properly dismissed.7
Because we conclude there was no disparate treatment of similarly
situated groups by the WMR with respect to its space requirements, we need
not reach the Homeowners’ argument that triable issues of fact remain
7 Even if we were to assume the WMR treats single-family and multi-
family properties differently by making the requirement an eligibility
requirement rather than a condition of service, it is self-evident that differing
treatment would be appropriate because the two groups of property owners
are not similarly situated. Multi-family properties are denser than single-
family homes, on average creating a higher output of refuse and recycling
material. This distinction logically requires more containers and
correspondingly more space than what is required for a single-family home,
providing a rational basis for different guidelines for these differently
situated residents.
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concerning the City’s characterization of their property as multi-family.8 We
note, however, that the manner in which the City determines whether a
property is single- or multi-family, described in the City’s December 15, 2016
denial letter as “based upon whether multiple units are located on one parcel,”
is eminently reasonable. (Emphasis added.) Contrary to their assertions on
appeal, the Homeowners provided no evidence showing that because a project
is defined as single or multi-family for purposes of the City’s building code, it
8 We also do not reach the Homeowners’ claim that they were denied
equal protection because they proffered evidence that other provisions of the
WMR are not enforced. Because there is no improper classification of
similarly situated groups, this line of argument is moot. Further, although
the Homeowners extensively discuss evidence concerning the lack of
enforcement of other provisions of the WMR and their claim that third-party
refuse haulers are not subject to the WMR, they fail to explain how these
facts relate to their equal protection claims. It is not this court’s role to
connect the dots. (See Paterno v. State of California (1999) 74 Cal.App.4th
68, 106 [“An appellate court is not required to examine undeveloped claims,
nor to make arguments for parties.”].)
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must also be defined the same way for purposes of refuse collection.9 For this
reason, the trial court’s conclusion that no triable issues of material fact
remained on this issue was appropriate.
C
The WMR’s Reasonable Access Requirement
Even if the Homeowners had established an equal protection claim
based on the WMR’s space requirements, summary judgment would still be
appropriate because the City also properly denied service based on the
WMR’s reasonable access requirement. The Homeowners argue, in essence,
that the City failed to provide a reasonable basis for the access requirement,
thus violating their equal protection rights. However, they provide no
explanation of how the rule applies to their homes differently than any other
City residence, multi-family or single-family.
The reasonable access rule, as previously described, states that “The
City will not provide Residential Refuse Collection Services to any
Residential Facilities in gated communities, located on private streets,
9 To support their contention that there was a triable issue of material
fact concerning the City’s classification of their residences as multi-family,
the Homeowners rely on the deposition testimony of City officials who
admitted the WMR does not define “multi-family dwelling.” However, the
lack of a definition in the regulation does not show there was a
misclassification. The Homeowners also misquote the December 15, 2016
letter, inaccurately stating it “said that the determining factor … in denying
Plaintiffs no fee service was that their houses were built under the City’s
multi-family Building Code.” The denial letter, however, states the
determination is “based upon whether multiple units are located on one
parcel.” That the 12-unit complex is located on one parcel is not disputed.
Similarly, the Homeowners look to the deposition testimony of a City official
not involved in refuse collection who said that because the structures were
detached townhomes they would be classified as single-family structures
under the building code. Again, this does not show the City misclassified
these residences for purposes of the WMR.
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addressed on public streets if any of the Residential Facilities in the gated
community do not have Reasonable Access to a dedicated public street or
dedicated public alley designated as suitable for City Force collection
vehicles.” (Italics added.) In turn, “Reasonable Access, means the
Residential Facility is located immediately adjacent and contiguous to a
designated collection point at the curb line of a City dedicated public right-of-
way which is directly accessible from the Residential Facility property and
does not require moving the collection container across a private street, private
alley, private communal driveway, or other private property aside from the
Residential Facility property.” (Italics added.)
This rule applies to all San Diego residential facilities and the
Homeowners have presented no evidence showing otherwise. For this reason,
the Homeowners’ equal protection claim based on the reasonable access
requirement lacks merit and was properly dismissed by the trial court.10
(Cooley, supra, 29 Cal.4th at p. 253.)
IV
Homeowners’ Payment to Third-Party Refuse Collector
The Homeowners final argument is that the City is violating the
People’s Ordinance because the trash hauler employed by the Homeowners
10 In their reply brief, the Homeowners belatedly assert that the
reasonable access requirement is violative of their equal protection rights
because “’[t]wo groups of residences are established by the WMRs: (1) those
who own their own driveway; and (2) those who [like the Homeowners] co-
own their driveway.” We decline to address this untimely argument, which
was also not raised in the trial court. (See REO Broadcasting Consultants v.
Martin (1999) 69 Cal.App.4th 489, 500 [“This court will not consider points
raised for the first time in a reply brief for the obvious reason that opposing
counsel has not been given the opportunity to address those points [citations],
particularly when the plaintiffs also failed to raise such issue before the trial
court.”].)
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after they were denied service pays certain fees to the City and its disposal
facility. They posit that because they pay the third-party hauler, who then
pays the City, they are paying the City for their trash service in violation of
the Ordinance’s guarantee of free service. This argument is untethered from
any allegation contained in the operative complaint, and does not relate to
the judgment or the underlying challenged order made by the trial court.
The argument, thus, provides no legal basis for reversal of the judgment.
DISPOSITION
The judgment is affirmed. Appellants shall bear the costs of appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
DATO, J.
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