CITY OF SAN MARCOS et al., Plaintiffs
and Respondents, v. COAST WASTE MANAGEMENT, INC., Defendant and Appellant.
No. D020212.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT,
DIVISION ONE
47 Cal. App. 4th 320; 54 Cal.
Rptr. 2d 588; 1996 Cal. App. LEXIS 675; 96 Cal. Daily Op. Service
5197; 96 Daily Journal DAR 8360
June 25, 1996, Decided
SUBSEQUENT HISTORY: [***1] The
Publication Status of this Document has been Changed by the Court from
Unpublished to Published July 10, 1996
PRIOR HISTORY: Appeal from an order of the Superior Court
of San Diego
County. Super. Ct. No. N60407. Hon.
Thomas R. Murphy, Judge.
DISPOSITION: The order is affirmed.
CASE SUMMARY
PROCEDURAL
POSTURE: Defendant waste management
company appealed an order of the Superior Court of San Diego County
(California), which granted a motion by plaintiffs, a city and a sanitation
company, to enjoin defendant's recycling operation, arguing that the California
Integrated Waste Management Act of 1989, Cal.
Pub. Res. Code § 40000 et seq., did not preclude its operation.
OVERVIEW: Defendant waste management company challenged an order
enjoining it from collecting recyclable solid wastes for a fee within the limits
of plaintiff city. Defendant contended that its activities consisted only of
collecting "undiscarded" recyclable materials and were not precluded
by the California Integrated Waste Management Act of 1989 (Act), Cal.
Pub. Res. Code § 40000 et seq., or by the exclusive franchise agreement
between plaintiffs, the city and a sanitation company. The court affirmed the
order. The court found that because the injunction applied only to "solid
wastes" collected "for a fee," the prohibition on collection
activities with respect to "discarded" recyclables or other solid
waste was valid under the Act, but to the extent defendant paid compensation,
the collection of recyclables was not prohibited. The court found that the term
"solid waste" was unambiguous, that defendant waived its right to
comment on what the order should or could not be, and that the trial court
retained discretion to modify the order.
OUTCOME: The court affirmed the order granting the motion by plaintiffs,
a city and a sanitation company, for a preliminary injunction because the
injunction against defendant waste management company applied only to the
collection of solid waste for a fee as defined by the California Integrated
Waste Management Act of 1989. The court held that the term "solid
waste" was not ambiguous and that defendant waived its opportunity for
comment.
CORE
TERMS: recyclable, solid wastes,
collection, preliminary injunction, discarded, written order, solid waste,
customer's, waste management, exclusive franchises, undiscarded, collecting,
minute order, ambiguous, solid, discarding', , italics, order granting,
sanitation, franchisee's, collected, semisolid, recycling, enjoined, briefing,
discard, vague, gift, restraining
SUMMARY:
CALIFORNIA
OFFICIAL REPORTS SUMMARY
The trial court granted a motion by a city and a sanitation company for a
preliminary injunction enjoining defendant waste management corporation from
collecting recyclable solid wastes for a fee within the limits of the city. The
city had previously entered into an agreement with the sanitation company
pursuant to which the city granted the sanitation company the exclusive right
and franchise to collect garbage, rubbish, and other refuse materials within
city limits. (Superior
Court of
San Diego County,
No. N60407, Thomas Ray Murphy, Judge.)
The Court of Appeal affirmed. The court held that the trial court properly
granted the motion by the city and the sanitation company for a preliminary
injunction, since the California Integrated Waste Management Act of 1989 (Pub.
Resources Code, § 40000 et seq.) permitted an exclusive agreement between
the city and the sanitation company precluding others from collecting
recyclable solid wastes. If a customer pays to have its recyclables collected,
that customer has effectively discarded its recyclables by disposing of them
without receiving compensation and, thus, those recyclables must be considered
waste under the act. Pub.
Resources Code, § 40191, subd. (a), effectively defines "solid
waste" as all discarded solid, semisolid, and liquid wastes. While the act
does not allow exclusive franchises for collection of undiscarded materials,
when defendant's customers paid fees to defendant for collection of their
recyclables, those recyclables were discarded, not undiscarded, and considered
solid waste. Since the preliminary injunction applied only to solid wastes
collected for a fee, it validly prohibited defendant's collection activities
with respect to discarded recyclables or other solid waste. The court further
held that the trial court's order was not impermissibly vague and ambiguous.
Although defendant asserted that the term "solid waste" as used in
the preliminary injunction was ambiguous because it was not defined, both the
act and a decision by the California Supreme Court provided detailed, objective
definitions of the term to which the parties and the court could refer if there
was any question about its meaning. (Opinion by McDonald, J., with Huffman,
Acting P. J., and Nares, J., concurring.)
CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports
CA(1)(1) Pollution and
Conservation Laws § 3.2--Solid and Hazardous Waste--Integrated Waste Management
Act--Validity of Exclusive City Franchise for Collection of Recyclable Solid
Wastes. --The trial court properly granted a motion by a city and a
sanitation company for a preliminary injunction enjoining defendant waste
management corporation from collecting recyclable solid wastes for a fee within
the limits of the city, since the California Integrated Waste Management Act of
1989 (Pub.
Resources Code, § 40000 et seq.) permitted an exclusive agreement between
the city and the sanitation company precluding others from collecting
recyclable solid wastes. Defendant was enjoined from collecting solid wastes,
including any recyclable solid wastes, for a fee. If a customer pays to have
its recyclables collected, that customer has effectively discarded its
recyclables by disposing of them without receiving compensation and, thus,
those recyclables must be considered waste under the act. Pub.
Resources Code, § 40191, subd. (a), effectively defines "solid
waste" as all discarded solid, semisolid, and liquid wastes. While the act
does not allow exclusive franchises for collection of undiscarded materials,
when defendant's customers paid fees to defendant for collection of their
recyclables, those recyclables were discarded, not undiscarded, and considered
solid waste. Since the preliminary injunction applied only to solid wastes
collected for a fee, it validly prohibited defendant's collection activities
with respect to discarded recyclables or other solid waste.
[See 4
Witkin, Summary of Cal.
Law (9th ed. 1987) Real Property, § 75.]
CA(2)(2) Pollution and
Conservation Laws § 3.2--Solid and Hazardous Waste--Integrated Waste Management
Act--Exclusive City Franchise for Collection of Recyclable Solid
Wastes--Preliminary Injunction--Validity: Injunctions § 18--Preliminary
Injunctions--Order. --The trial court's order granting a motion by a city
and a sanitation company for a preliminary injunction enjoining defendant waste
management corporation from collecting recyclable solid wastes for a fee within
the limits of the city was not impermissibly vague and ambiguous. Although
defendant asserted that the term "solid waste" as used in the
preliminary injunction was ambiguous because it was not defined, both the
California Integrated Waste Management Act of 1989 (Pub.
Resources Code, § 40000 et seq.) and a decision by the California Supreme
Court provided detailed, objective definitions of the term to which the parties
and the court could refer if there was any question about its meaning.
Moreover, even if defendant was not given an opportunity to comment on the
language of the preliminary injunction before it was issued by the trial court,
defendant waived any objection to it by repeatedly failing to object to the
language of the proposed written order. In any event, the charging of fees by
defendant for collection of recyclables was expressly discussed in the
pleadings and presumably considered throughout the proceedings, and was not
raised for the first time in the proposed order.
COUNSEL:
White & Bright, Leigh A. Rayner and Jennifer M. McGauley for Defendant and
Appellant.
Higgs, Fletcher & Mack, John Morris, Sullivan, Hill, Lewin & Markham,
Donald G. Rez and Arthur C. Leahy for Plaintiffs and Respondents.
JUDGES:
Opinion by McDonald, J., with Huffman, Acting P. J., and Nares, J., concurring.
OPINION BY: McDONALD
OPINION
[*322]
[**589] McDONALD, J.
Coast
Waste Management, Inc. ,
doing business as Liberty Recycling (Coast), appeals an order granting the
motion by the City of San Marcos (City) and Mashburn Waste & Recycling
Services, Inc., doing business as Mashburn Sanitation Company (Mashburn), for a
preliminary injunction enjoining Coast from collecting recyclable solid wastes
for a fee from individuals and businesses within the limits of City. Coast
contends the exclusive franchise that City granted to Mashburn for collection
of solid wastes and the California Integrated Waste Management [***2] Act of 1989 (Pub.
Resources Code,
1 § 40000 et
seq., hereafter the Act) do not preclude it from conducting its recycling
operations and undercutting the prices charged by Mashburn for collection of
recyclable solid wastes. Coast further contends the order is unenforceable
because the order is vague and ambiguous and because Coast was not given an
opportunity to comment on the language of the written order. We disagree with
Coast's contentions and affirm the order.
FOOTNOTES
1
All statutory references are to the Public Resources Code unless otherwise
specified.
[*323] FACTUAL
AND PROCEDURAL BACKGROUND
In 1988 City entered into an agreement with Mashburn pursuant to which City
granted Mashburn the exclusive right and franchise to collect garbage, rubbish
and other refuse materials within City limits. A City ordinance generally
prohibits collection by persons other than the exclusive franchisee (e.g.,
Mashburn) of refuse within City limits. In late 1991 or early 1992, Coast began
to collect recyclable materials
[***3] from
businesses located in City. Some of Coast's customers were paid by Coast for
the right to pick up recyclables, while other customers were charged a fee
which was less than they otherwise would customarily be charged for refuse
pickup.
[**590] On or about July 8, 1993, City and
Mashburn filed a complaint against Coast alleging unfair competition,
intentional interference with economic relations and intentional interference
with prospective economic advantage, and seeking damages, a temporary
restraining order, a preliminary injunction and a permanent injunction. On or
about July 9, 1993, City and Mashburn moved ex parte for a temporary
restraining order restraining Coast from:
"(a) soliciting and/or entering into any contracts with individuals or
entities within the corporate limits of the City of San Marcos for the
collection or removal or disposal of solid wastes including without limitation
paper, cardboard or any other recyclable waste; and
"(b) the collection of any solid wastes including without limitation
paper, cardboard or any other recyclable waste from any individual or entity
within the City of San Marcos[.]"
On July 9, 1993, the court granted the motion
[***4]
for a temporary restraining order and set a hearing for July 23, 1993, to hear
the motion by City and Mashburn for a preliminary injunction. On July 27, 1993,
the court granted the motion for a preliminary injunction, with its minute
order stating in part: ". . . [Coast] is properly enjoined from conducting
its recyclable collection business within San
Marcos city limits. The TRO issued July 9, 1993 shall
remain in effect as a preliminary injunction pending trial of this action on
the merits." City and Mashburn chose not to submit a proposed form of
formal written order for the court's consideration. Coast appealed the minute
order granting the preliminary injunction, but we dismissed that appeal
concluding that the minute order did not "contain a detailed formulation
of the acts restrained sufficient either for purposes of making the purported
injunction operational and enforceable or for treatment as an appealable
order." (
Coast Waste Management,
Inc.
v. City of San Marcos (Sept. 29, 1993) D019641 [nonpub. opn.].) Following
our dismissal of that appeal, City and Mashburn applied ex parte to the court
seeking a formal written order setting forth [*324] the specific terms
[***5] of the preliminary injunction. After briefing by
all parties and a hearing, the court issued the following formal written order
dated November 23, 1993, granting the motion for a preliminary injunction:
"The Court finds that 'solid waste handling services' include[] recycling
activities pursuant to [section] 40057, and that [City] is authorized to
exclusively license and/or contract with [Mashburn] to provide solid waste
handling services pursuant to [section] 40059. The Court further finds that
Paragraph 4 of the agreement between Plaintiffs lodged as Plaintiffs' Exhibit
'B' grants [Mashburn] the exclusive right to provide solid waste handling
services in the [City].
"Accordingly, [Coast] is properly enjoined from (1) soliciting or entering
into any contracts with individuals or entities located within the limits of
the [City] for the collection, removal, or disposal of solid wastes (including,
without limitation, paper, cardboard, or any other recyclable solid waste)
for
a fee; and (2) the collection
for a fee of any recyclable solid
wastes[] (including, without limitation, paper, cardboard, or any other
recyclable waste) from the residence of any
[***6]
individual or place of business of any commercial enterprise within the limits
of the [City]." (Italics added.)
Coast now appeals this order.
2
FOOTNOTES
2
An order granting a preliminary injunction is appealable pursuant to Code of Civil Procedure section
904.1, subdivision (a)(6).
DISCUSSION
I.
The California Supreme Court Has Interpreted the Act asAllowing Exclusive
Agreements Precluding Others From Collecting Recyclable Solid Wastes
CA(1)(1) Coast contends
its challenged activities consist only of collecting "undiscarded"
recyclable materials, and thus its activities are not precluded by the Act or
the exclusive
[**591] franchise agreement.
However, Coast's use of the term "undiscarded" seems misplaced
considering the California Supreme Court's definition of the term
"discarded" in
Waste
Management of the Desert, Inc. v. Palm Springs Recycling Center, Inc.
(1994) 7 Cal.4th 478 [28 Cal.Rptr.2d 461, 869 P.2d 440] (
Palm Springs).
In
Palm Springs, the court held that the
Act allows exclusive
[***7] franchises to be
granted only for "solid
waste handling" which includes the
collection of
[*325]
recyclables "discarded" by their owner. (
Palm
Springs,
supra, 7 Cal.4th at pp. 481-482, original italics.) The
court reasoned that section
40191, subdivision (a) of the Act defined "solid waste" as "
'all putrescible and nonputrescible solid, semisolid, and liquid wastes,
including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes,
demolition and construction wastes . . . and other
discarded solid and
semisolid wastes[]' " which the court observed did not connote the idea of
valuable materials. (7
Cal.4th at p. 485, italics added.) The court noted "waste" is
something that is "discarded 'as worthless or useless.' [Citation.]"
(
Ibid.) The court distinguished "waste" which is
"discarded" from valuable material which is sold for compensation,
stating: "If the owner sells his property--that is, receives value for
it--the property cannot be said to be worthless or useless in an economic sense
and is thus not waste from the owner's perspective. Conversely, if the owner
voluntarily disposes of the property without receiving compensation or other
consideration
[***8] in exchange--that is, throws
it away--the obvious conclusion is that the property has no economic value to
the owner. The concept of value is in this sense related to the manner in which
the property is disposed of." (
Ibid.) The court concluded that the
Act effectively defines "solid waste" as materials that are
"discarded." (
Id.
at pp. 485-486.) In contrast, "[p]roperty that is sold for value--for
example, a recyclable--is not 'discarded' under any traditional understanding
of the term." (
Id.
at p. 486.) Explaining this distinction, the court stated: "A
homeowner, for example, can dispose of used furniture, clothing, or automobiles
by discarding them or by selling them, but either method of disposition
necessarily precludes the other. If he sells the property, he cannot discard
it; and if he discards it, he cannot sell it. That 'discard' connotes throwing
away or abandoning has been well recognized in cases dealing with waste and
related issues. [Citations.]" (
Ibid.) Applying this distinction
between "selling" and "discarding," the court pronounced
HN3the
following rule for determining whether something is "waste":
"THE PROPER RULE IS THIS: If the owner of property
[***9]
disposes of it for compensation--in common parlance, sells it--it is not waste
because it has not been discarded. The owner is not required under the Act to
transfer this property to the exclusive franchisee. But, consistent with the
purpose of the Act, an owner cannot
discard property as he sees fit.
Discarding the property renders the property waste and subjects it to the
Act." (
Id.
at p. 488, original italics.)
Here the written order dated November 23, 1993, sets forth the preliminary
injunction in terms that are defined in the Act and in 1994 were thoroughly
discussed in
Palm Springs.
As quoted above, the order applies only to Coast's activities in dealing with
"solid wastes." Coast is enjoined from "soliciting or entering
into any contracts . . . for the collection . . . of
[*326] solid wastes" or "the
collection" of solid wastes, including any recyclable solid wastes, "
for
a fee." (Italics added.) Thus, in accordance with the provisions of
the Act and the court's analysis in
Palm Springs, any "recyclable
solid wastes" that are collected "for a fee" paid by a customer
would necessarily be deemed to be "discarded." The California Supreme
Court envisioned
[***10] this conclusion when it
presented the following example expressing its distinction between
"selling" and "discarding": "Assume that, as in this
case, there is an exclusive franchise. A property owner
[**592]
throws his recyclables into the receptacle provided by the franchisee and does
so without receiving compensation. He has plainly discarded his property, and
it is thus waste under the Act. Could he instead throw the property into the
bin of a competing waste hauler without receiving compensation? No, because by
disposing of the property without receiving compensation, he has discarded the
property and thereby rendered it waste that is subject to the exclusive
franchise. If, however, he is paid for the material by the franchisee's
competitor, the owner has sold the property and thus has not discarded it, so
it has not become waste." (
Palm
Springs,
supra, 7 Cal.4th at p. 486.) We must apply the same
standard here. If a customer pays Coast to collect its recyclables, that
customer has effectively "discarded" its recyclables by disposing of
them without receiving compensation and, thus, those recyclables must be
considered "waste" pursuant to the Act. As the court noted
[***11] in
Palm Springs, section
40191, subdivision (a) effectively defines "solid waste" as all
"discarded" solid, semisolid and liquid wastes. (
Palm
Springs,
supra, 7 Cal.4th at p. 485.) Although Coast concedes
that City is authorized by section 40059 to enter into exclusive franchise
agreements for solid waste handling, it contends that this statutory authority
does not extend to "collection of valuable, undiscarded, recyclable materials."
While Coast correctly asserts that the Act, as interpreted by the court in
Palm
Springs, does not allow exclusive franchises for collection of
"undiscarded" materials, that statement of law has no relevance to
the case at hand. When Coast's customers pay fees to Coast for collection of
their recyclables, those recyclables are clearly "discarded," not
"undiscarded," and considered "solid waste" according to
the court's analysis in
Palm
Springs. Coast's attempt to classify its
activities as the collection of "undiscarded" recyclables is directly
contrary to the Supreme Court's analysis in
Palm Springs. The
Palm Springs opinion cannot be applied
to the facts and order here in the manner in which Coast suggests. Because the
preliminary
[***12] injunction applies only to
"solid wastes" collected "for a fee," there can be no
question that it validly prohibits Coast's collection activities with respect
to "discarded" recyclables or other solid waste. We note, however,
that to the extent Coast pays compensation for collecting customer's
recyclables, this collection is not
[*327] prohibited either by the
preliminary injunction here or by the analysis set forth in
Palm Springs.
3
FOOTNOTES
3
At oral argument Coast contended that its customers
receive "cost avoidance" compensation from Coast for Coast's
collection of recyclable materials. By "cost avoidance" Coast means
that it charges less for trash collection than does Mashburn; to the extent of
the lower fee, the client has received compensation or consideration.
"Cost reduction" is perhaps a more accurate description than
"cost avoidance" for the consideration argument made by Coast. In any
event, the argument is contrary to the analysis of the California Supreme Court
in
Palm Springs.
Although the customers of Coast pay less to Coast than they would to Mashburn,
they nevertheless still pay a fee and therefore they have discarded the
material.
[***13] II.
The Order Is Not Vague and Ambiguous
CA(2)(2) Coast contends
the order dated November 23, 1993, is unenforceable because it is
impermissibly vague and ambiguous. We disagree.
Coast asserts the term "solid waste" as used in the preliminary
injunction is ambiguous because that term was not defined in the order. Both
the Act and the Palm Springs opinion provide detailed, objective definitions of
the term "solid waste" to which the parties and the court may refer
if there is any question about the meaning of that term. No express definition
of the term "solid waste" was required to be set forth in the order.
Coast also asserts it was not given an opportunity to comment on the language
of the order dated November 23, 1993, before it was issued by the court. The
record shows otherwise. Following our dismissal of Coast's appeal of the
minute order dated July 27, 1993, City and Mashburn submitted to the court a
proposed form of written order that included the added qualification "for
a fee," which we assume arguendo was not [**593]
expressly contained in the complaint or any previous request for relief. 4 As indicated
in a letter dated October 4, 1993, from Coast's counsel [***14]
to City's counsel, Coast received a copy of this proposed form of written
order and vigorously opposed the right of City and Mashburn to submit it to
the court subsequent [*328]
to their reliance on the original minute order. Yet, in Coast's extensive
briefing arguing City and Mashburn had no right to submit a proposed written
order for the court's consideration to correct the deficiency in the original
minute order, Coast does not argue that the language of the proposed form of
written order did not comply with the court's original minute order or was
otherwise improper. Further, following the court's hearing regarding the
proposed written order, the court issued a minute order allowing the parties
to submit supplemental briefing with the proviso that "thereafter this
matter stands submitted by the Court." Coast submitted a supplemental
brief, but once again it did not object to the language of the proposed
written order. By repeatedly failing to object to the language of the proposed
written order, Coast effectively waived any objection to it (other than
whether City and Mashburn had any right to submit a proposed written order,
whatever its language). The court was not bound [***15]
by its previous indication that Coast might be given an opportunity to comment
later on what the order should be, especially because of its order stating the
matter would be submitted following supplemental briefing. Coast simply failed
to state a timely objection to the language of the proposed written order. Accordingly,
we decline to condone Coast's belated objection and conclude Coast cannot
contend on appeal that the language of the order adopted and issued by the
court did not correctly reflect its original ruling. In any event, we
conclude, as City and Mashburn argue, that the charging of fees by Coast for
collection of recyclables was not first raised in the proposed order, but
rather was expressly discussed in the pleadings and presumably considered
throughout the proceedings. Coast fails to show that the court had no
authority to issue the written order or that it abused its discretion in so
doing. We further note HN4the
court possesses the inherent power to modify its preliminary injunction which
is of a continuing or executory nature. (See, e.g., Sontag
Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94-95 [113 P.2d
689]; [***16] New
Tech Developments v. Bank of Nova Scotia (1987) 191 Cal.App.3d
1065, 1071-1072 [236 Cal.Rptr. 746]; 6 Witkin, Cal. Procedure (3d ed.
1985) Provisional Remedies, § 322, pp. 272-273.)
FOOTNOTES
4 We note that as "waste" is defined in Palm Springs it was
unnecessary to include the term "for a fee" in the preliminary injunction
from which the appeal has been taken in this case. Because "waste"
is "discarded" material and "discarded" material is
material for which no compensation or other consideration is received, the
"for a fee" provision in the preliminary injunction, although
correct, is unnecessary. It should further be noted that "[n]othing . . .
in the language or legislative history of the Act suggests the Legislature
intended to eliminate gifts to charity or gifts between friends. As with items
that are sold, gifts cannot be fairly said to have entered the solid waste
stream. Moreover, a gift of valuable property, like a sale of such property,
is a transfer of value and thus cannot properly be characterized as
'discarding' under the Act." (Palm Springs, supra, 7 Cal.4th at p. 489.)
[***17] DISPOSITION
The order is affirmed.
Huffman, Acting P. J., and Nares, J., concurred.
Appellant's petition for review by the Supreme Court was denied October 2,
1996.
