Alameda County Waste Mgmt Authority v. Waste Connections US, Inc.

Filed 9/8/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ALAMEDA COUNTY WASTE
MANAGEMENT AUTHORITY, A158323
Plaintiff and Respondent,
(Contra Costa County
v. Super. Ct. No.
WASTE CONNECTIONS US, CIVMSC18-01546)
INC., et al.,
ORDER MODIFYING
Defendants and
OPINION; NO CHANGE IN
Appellants.
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on August 18, 2021, be
modified as follows:
On page 3, in the first sentence of the first full paragraph beginning
with “On appeal,” delete the word “Management” and insert the word,
“Connections.”
There is no change in judgment.
Dated:_________
KLINE, P.J.
1
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Steven K. Austin
Counsel:
Beveridge & Diamond, Eric L. Klein, Gary J. Smith, James B. Slaughter, for
Defendants and Appellants.
Shute, Mihaly & Weinberger, Ellison Folk, Joseph D. Petta, and Andrew P.
Miller, for Plaintiff and Respondent.
Cole Huber, Derek P. Cole, as Amicus Curiae on behalf of Plaintiff and
Respondent.
2
Filed 8/18/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ALAMEDA COUNTY WASTE
MANAGEMENT AUTHORITY,
Plaintiff and Respondent,
A158323
v.
WASTE CONNECTIONS US, INC., (Contra Costa County
et al., Super. Ct. No. CIVMSC18-
01546)
Defendants and Appellants.
In 2016, Alameda County Waste Management Authority, a regional
government entity responsible for managing disposal, recycling and reuse of
waste generated in Alameda County (the Authority), sought records from
three out-of-county landfills that disposed of waste originating in Alameda
County. The Integrated Waste Management Act (the Act), Public Resources
Code sections 40000-49260, permits local government entities to inspect and
copy specified records kept by landfills concerning waste received at such
landfills originating in the government’s geographic jurisdiction. The
legislation specifies two purposes for which local governments may conduct
such inspections: “for the purposes of” verifying reports made by the landfills
on “disposal tonnages by jurisdiction of origin” and “as necessary to enforce
the collection of local fees.” (Pub. Resources Code, § 41821.5,
1
subds. (a), (g)(2). 1) The Authority repeatedly sought to inspect records for the
second purpose.
The landfills and their corporate owner, Waste Connections US, Inc.
(collectively Waste Connections), refused to permit the inspections,
contending the statute did not apply because the Authority had not shown
inspection of the records was “necessary” to enforce its fee ordinance. The
Authority responded that section 41821.5, subdivision (g)(2) does not require
it to justify to Waste Connections why the records are required for collection
of local fees. Nonetheless, it attached a copy of its fee ordinance and
explained that the fee depends on where tonnage originated, the type and
amount of waste, and the party responsible for transporting the waste to the
landfill, facts that are documented in landfill weight tags of the kind the
statute allows government entities to inspect.
The Authority sued Waste Connections and its landfills under the Act,
invoking a provision permitting it to petition the superior court for injunctive
or declaratory relief to enforce its inspection authority. (§ 41821.5,
subd. (g)(3).) After Waste Connections’ constitutional challenges to the
inspection statute were rejected by the court, the Authority filed a motion for
judgment on the pleadings, which the superior court granted. The superior
court rejected Waste Connections’ interpretation of section 41821.5,
subdivision (g)(2) as requiring local governments to prove as a factual matter
that they have a need for the records before a court may enforce their
inspection authority. It therefore granted the Authority’s motion and
compelled Waste Connections to allow the inspection.
1 Except as otherwise specified, “section” refers to the Public Resources
Code.
2
On appeal, Waste Management argues the superior court erred in
granting judgment on the pleadings, contending it was entitled to contest the
Authority’s need for the records as a factual matter. It acknowledges that if
we do not interpret the statute to condition inspection rights on a factual
showing of necessity, there are no other disputed facts that would preclude
judgment on the pleadings.
We review issues of statutory interpretation de novo. Considering the
words of section 41821.5, the Act of which the section is a part, the purposes
of the Act, and the legislative history of the amendment, we conclude the “as
necessary” language of the inspection provision requires neither a factual
showing nor a factual determination. We therefore disagree with Waste
Connections’ contention that a “factual” issue precluded resolution of the case
on the Authority’s motion for judgment on the pleadings. The defenses pled
by Waste Connections, all of which are predicated on its interpretation of the
Act, fail as a matter of law. We therefore affirm the judgment.
BACKGROUND
The Authority is a public agency formed in 1976 by a Joint Exercise of
Powers Agreement among the County of Alameda, the 14 cities in that county
and two sanitary districts that provide refuse and recycling collection services
there. The Authority is responsible for waste management planning in
Alameda County and facilitates implementation of the statewide Disposal
Reporting System for the County. 2 It provides the planning and technical
assistance necessary for ensuring that Alameda County and its cities meet
2 Section 40976 provides that cities and counties may enter into
memoranda of understanding with an agency formed under a joint powers
agreement or a district established to manage solid waste for purposes of
preparing and implementing an integrated waste management plan.
3
the state’s mandates concerning the reduction of solid waste disposed of in
California landfills.
The Act allows, but does not require, local governments to “impose fees
in amounts sufficient to pay the costs of preparing, adopting, and
implementing a countywide integrated waste management plan prepared”
pursuant to the Act. (§ 41901.) In 2009, pursuant to the authority granted in
the Act (ibid.), the Authority adopted an ordinance imposing tonnage-based
fees for waste generation in Alameda County. The fees are imposed on all
such waste, whether disposed of in or outside of the county. The Authority
found the fees were necessary to fund the costs of preparing and
implementing the Alameda County waste management plan. The ordinance
requires landfill operators or haulers to collect and remit the fee for all waste
generated in Alameda County that they deposit in their landfills or transport
to a landfill or other solid waste facility.
Waste Connections, a Delaware corporation with its principal place of
business in Texas, is an integrated solid waste services company that
provides solid waste-related services across the United States. Three of its
wholly owned subsidiaries are landfills operated in California in counties
other than Alameda County.
The Authority and Waste Connections have long disputed whether
Waste Connections landfills are obligated to allow the Authority to conduct
“weight tag audits” or, stated otherwise, to provide unredacted weight tickets
showing the haulers who delivered the material to its landfills. In 2014, after
the Authority requested unredacted weight tags for Alameda County-
generated waste deposited at Waste Connections’ California landfills, the
4
state Department of Resources Recycling and Recovery (Cal Recycle) 3
informed Waste Connections that, pursuant to CalRecycle’s regulations,
Waste Connections was required to provide the records the Authority had
requested. At the time, title 14 of the California Code of Regulations,
section 18810.4 provided that landfill operators “shall prepare disposal
reporting records and shall . . . [a]llow representatives of involved
jurisdictions . . . to inspect the records during normal business hours in a
single location within California.” CalRecycle rejected Waste Connections’
argument that California’s trade secrets statute bars review of information
by governmental agencies for a governmental purpose, and explained that
the purpose for which the Authority was entitled to review the information
was “verifying disposal reporting.” In the prior year, however, CalRecycle
had informed both the Authority and Waste Connections that its regulations
did not require inspection of records “for the purpose of enforcing local
ordinances” such as the Authority’s local fee ordinance.
The following year, the Legislature amended the Act to add express
inspection and copying rights for state and local governments, both for
purposes of verifying tonnages and to enforce fee ordinances. (See
Stats. 2015, ch. 746, § 1 (Assem. Bill No. 901); § 41821.5.) After the
amendment took effect in 2016, the Authority again demanded inspection
and copying of weight tickets at Waste Connections’ California landfills
receiving waste originating in Alameda County. Waste Connections refused
to make the requested records available and instead filed suit against the
3 The entity originally responsible for integrated waste management in
California was the Integrated Waste Management Board (the Board). In
2010, the Board was renamed and is now commonly referred to as
“CalRecycle.” (PaintCare v. Mortensen (2015) 233 Cal.App.4th 1292, 1299 &
fn. 2.)
5
Authority in Kings County seeking to enjoin the Authority from seeking the
records. After losing a battle over venue, Waste Connections eventually
dismissed the case without prejudice in January 2018.
In June 2017 and February 2018, the Authority again requested that
Waste Connections allow inspection and photocopying of the records
pursuant to section 41821.5, subdivision (g). Waste Connections again
refused to permit inspection or photocopying of the records. The Authority
then filed this action seeking declaratory and injunctive relief under
section 41821.5, subdivision (g)(3) to enforce its asserted right to inspect the
weight tags it had been requesting from July 2015 through
December 31, 2017.
Waste Connections filed an answer and a cross-complaint, challenging
the amendment under various provisions of the state and federal
constitutions. 4 After briefing and a hearing, the court sustained the
Authority’s demurrer to the cross-complaint.
In its answer to the Authority’s complaint (as well as its own cross-
complaint), Waste Connections admitted the basic facts relevant to the
parties’ dispute. It admitted that it was in the solid waste business and
provided solid waste disposal, that it operated the three California landfill
companies identified in the complaint, and that these landfills, from which
the Authority sought records, received waste from Alameda County. It
admitted that in 2016, shortly after Assembly Bill No. 901 took effect and
pursuant to that section 41821.5, subdivision (g)(2), the Authority wrote to
4 Waste Connections contended the inspection provision was an
unreasonable search and seizure, an unconstitutional taking of its trade
secrets, an excessive use of local government police powers and a violation of
due process.
6
Waste Connections demanding inspection and copying of all weight tickets
evidencing waste originating in Alameda County after July 1, 2015, that had
been deposited in Waste Connections’ California landfills. It admitted that it
“safeguarded the secrecy” of the identity of its customers (i.e., haulers) and
the volumes of the waste they dispose by redacting all weight tickets provided
to the Authority to remove that information and by resisting the Authority’s
requests for that information. It admitted that it did so because it believed
the data was a confidential trade secret and that the statute required
Authority to demonstrate necessity for the records and the Authority had
failed to do so.
In February 2019, the Authority filed a motion for judgment on the
pleadings seeking dismissal of Waste Connection’s answer, including its six
affirmative defenses, and a final judgment allowing the Authority to inspect
Waste Connection’s landfill weight tags for waste originating in Alameda
County. The Authority relied on undisputed facts derived from the pleadings
and documents attached to a request for judicial notice that it filed with its
motion. The Authority argued it was undisputed that it had requested and
Waste Connections had refused to allow it to inspect the records identified in
section 41821.5, subdivision (g)(2), that all of Waste Connections’ defenses
relied on an interpretation of that subdivision that required the Authority to
demonstrate the records were “absolutely necessary” for fee enforcement, and
that this interpretation of the statute was incorrect and should be rejected.
Waste Connections opposed the motion on the ground that it had “put
in issue whether [the Authority] could satisfy the statutory requirement to
demonstrate that access to [Waste Connections’] unredacted weight tickets
was necessary for [the Authority] to enforce its local fees.” That was enough
to defeat the motion. Waste Connections argued the words “as necessary to
7
enforce the collection of local fees” should be interpreted to allow local
government entities to obtain weight tags only “when necessary to enforce
the collection of local fees.”
The superior court granted judgment on the pleadings. It disagreed
with Waste Connections’ contention that the Authority had to prove
necessity. Considering “[t]he context surrounding
§ 41821.5[, subdivision] (g)(2)’s use of the word ‘necessary,’ ” it concluded that
the statute “supports a broader sense of ‘necessary,’ i.e., ‘that which is . . .
convenient, useful, appropriate suitable, proper or conducive’ to ensuring
compliance with subdivision (a) and local fee provisions.” Further, it rejected
Waste Connections’ interpretation of “necessary” to “require an undefined
‘prerequisite showing for production.’ ” The court granted judgment on the
pleadings as to Waste Connections’ affirmative defenses. 5
On August 14, 2019, the superior court issued a final judgment
compelling Waste Connections to “promptly make available for inspection
and copying weight tags identifying the hauler, vehicle, quantity, date, type,
and origin of waste, and relating to solid waste tonnage originating within
Plaintiff’s geographic jurisdiction of Alameda County and received on or after
July 1, 2015, through December 31, 2018, at the disposal facilities operated
[by Waste Management US Inc.’s subsidiaries] in Solano County, San Benito
County and Kings County, California.” Waste Connections timely appealed. 6
5The court also ruled in the Authority’s favor on the alternative
ground that the Authority’s request for records was a valid administrative
subpoena. Because our decision is based on interpretation of the Act, we
need not reach the subpoena issue.
6 Waste Connections sought a writ of supersedeas in this court. We
declined to stay the superior court decision, and Waste Connections complied
with the superior court order. However, anticipating that the dispute will
8
DISCUSSION
I.
Motions for Judgment on the Pleadings
A motion for judgment on the pleadings is similar to a demurrer in
most respects, and we review de novo trial court rulings regarding both.
(Templo v. State (2018) 24 Cal.App.5th 730, 735.) Except as provided in the
statute governing motions for judgment on the pleadings, Code of Civil
Procedure section 438, the rules governing demurrers apply. (Weil & Brown,
Cal. Practice Guide, Civil Procedure Before Trial ¶ 7:275 (2019) (Weil &
Brown).) Like a demurrer, a motion for judgment on the pleadings attacks
defects disclosed on the face of the pleadings or by matters that may be
judicially noticed. (Southern California Edison Co. v. City of Victorville
(2013) 217 Cal.App.4th 218, 227; Cloud v. Northrop Grumman Corp. (1998)
67 Cal.App.4th 995, 999.)
There are some differences between a motion for judgment on the
pleadings and a demurrer. Unlike a demurrer, a plaintiff may move for
judgment on the pleadings on the ground “that the complaint states facts
sufficient to constitute a cause or causes of action against the defendant and
the answer does not state facts sufficient to constitute a defense to the
complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A); City and County of San
Francisco v. All Persons Interested in Matter of Proposition C (2020)
51 Cal.App.5th 703, 712; compare Code Civ. Proc., § 438, subd. (c)(1)(A) with
recur between them if the statutory interpretation issue is not resolved by
this court, the parties have urged us to decide this appeal. And we agree that
we should. (See Los Angeles Internat. Charter High School v. Los Angeles
Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354 [where controversy
was likely to recur between parties, appeal was not moot].)
9
id., §§ 430.10, 430.20.) Where a plaintiff brings such a motion, we assume
the defendant could have proven all of the factual allegations in its answer.
(Westly v. Board of Administration (2003) 105 Cal.App.4th 1095, 1115.) “The
issue is whether the [pleading] raises an issue that can be resolved as a
matter of law.” (Ibid.) Interpretation of a statute or constitutional provision
is “purely a question of law” that may properly be resolved on a plaintiff’s
motion for judgment on the pleadings. (Ibid.)
In evaluating the sufficiency of the challenged pleading, we accept all
material facts pleaded and those that arise by reasonable implication, but not
conclusions of fact or law. (See Rodas v. Spiegel (2001) 87 Cal.App.4th 513,
517 [demurrer].) A party may not avoid a motion for judgment on the
pleadings by omitting facts previously alleged in the same case or by
suppressing such facts when they prove the pleaded facts false. (Ibid.) “In
addition to the facts actually pleaded, the court considers facts of which it
may or must take judicial notice.” (Ibid.) “On appeal, we do not review the
validity of the trial court’s reasoning but only the propriety of the ruling
itself.” (Ibid.) We may also “take judicial notice of admissions in [a party’s]
opposition to the [motion].” (Id. at p. 518.)
Among the matters of which judicial notice may be taken are judicial
admissions, i.e., admissions and inconsistent statements in the same case. In
other words, “a court may take judicial notice of admissions or inconsistent
statements by [a party] in earlier pleadings in the same lawsuit” and “may
disregard conflicting factual allegations in the [challenged pleading].” (Weil
& Brown, supra, ¶ 7:47, citing Larson v. UHS of Rancho Springs, Inc. (2014)
230 Cal.App.4th 336, 344 [demurrer]; Pang v. Beverly Hospital Inc. (2000)
79 Cal.App.4th 986, 989-990 [motion for judgment on pleadings].)
10
II.
The Act
A. Assembly Bill 939: The Integrated Waste Management Act
In 1988, in recognition of an “emerging solid waste crisis in California,”
the state Senate created a Task Force on Waste Management (Task Force)
and charged it with developing “ ‘a comprehensive legislative program to help
solve the solid waste crisis.’ ” The Task Force issued its report the following
year. 7 The problem it described was dramatic. Californians were disposing
of about 40 million tons of solid waste each year, and it was estimated that
amount would increase. In the meanwhile, remaining landfill capacity was
“shrinking rapidly in many parts of the State,” and a number of California
counties would run out of capacity within the decade. Ninety percent of the
state’s solid wastes was being buried in landfill, with less than ten percent
diverted through recycling. Public opposition to siting new landfills had
7 The report is entitled “California’s Waste Management Crisis—The
Report of the Senate Task Force on Waste Management (June 1989).” It is
referred to in a number of legislative reports regarding the Act. (See, e.g.,
Sen. Rules Com., Office of Sen. Floor Analyses, 3d reading analysis of Assem.
Bill No. 939 (Reg. Sess. 1989-1990) as amended Sept. 14, 1989, p. 6; Sen.
Com. on Gov. Org., Staff Analysis of Assem. Bill No. 939 (1989-1990 Reg.
Sess.) as amended Aug. 21, 1989, p. 5; Sen. Com. on Gov. Org., Staff Analysis
of Assem. Bill No. 939 (1989-1990 Reg. Sess.) as amended June 7, 1989, p. 3;
Sen. Com. on Nat. Res. and Wildlife, Gov. Org. Com. Staff Analysis of Assem.
Bill No. 939 (1989-1990 Reg. Sess.) as amended Aug. 21, 1989, pp. 3-4.) We
take judicial notice of the Task Force Report and the Senate committee
reports cited in this footnote sua sponte because they are part of the
legislative history of the Act. (See Pacific Southwest Realty Co. v. County of
Los Angeles (1991) 1 Cal.4th 155, 160-162 [task force report on property taxes
was a part of the relevant legislative history]; Fashion Valley Mall, LLC v.
County of San Diego (2009) 176 Cal.App.4th 871, 878, fn. 7 [same];
Evid. Code, §§ 452, subd. (c), 459.)
11
increased in recent years because of real and perceived problems they present
with hazardous waste, air quality and water quality.
The Task Force recommended comprehensive legislation adopting a
statewide integrated waste management system requiring strong source
reduction and recycling incentives, and reorganization and funding to
aggressively undertake mandated initiatives and planning and permitting
requirements. It observed that “[a] major failing of past State solid waste
policies has been the lack of resources for State and local agencies to
implement legislative mandates for solid waste management.” Therefore, it
recommended that the legislation establish funding mechanisms for state
and local integrated waste management implementation, with state
programs to be funded primarily by product charges and local programs to be
funded by levying collection and disposal surcharges.
In the wake of the Task Force’s report, the Legislature enacted and the
Governor approved the Integrated Waste Management Act, commonly
referred to as AB 939 (the Act), that same year (1989). (Stats. 1989,
ch. 1095.) The legislative findings echoed the problems described by the Task
Force. (See id., § 22 [§ 40000-40004, 40051].) The Legislature declared that
“responsibility for solid waste management is a shared responsibility between
the state and local governments,” and directed the state to ensure “an
effective and coordinated approach to the safe management of all solid waste
generated within the state” and to “oversee the design and implementation of
local integrated waste management plans.” (Id., [§ 40001].)
The Act divides responsibilities for managing waste between the state
and local governments and requires local governments to substantially
reduce waste through source reduction, reuse and recycling, in turn lessening
the amount of waste deposited in landfills. (Stats. 1989, ch. 1095, § 22
12
[§§ 40057, 41780, 40400, 40434, 40502, 40509].) Local governments must
adopt and submit waste management plans that effectuate the Act’s waste
reduction mandates and report annually on their progress meeting those
standards. (Id. [§§ 41000-41780, 41821].) The plans must place “primary
emphasis” on source reduction, recycling and composting programs.”
(Stats. 1989, ch. 1095, § 22 [§§ 41000-41002, 41300-41302].) Counties must
prepare countywide integrated waste management plans every five years,
incorporating the cities’ plans. (Id. [§§ 41750, 41770].) 8 Initially, all plans
were required to include an implementation schedule that would divert
25 percent of all solid waste from landfill or transformation facilities by
January 1, 1995, and 50 percent by January 1, 2000. (Id. [§ 41780].) The
current goal is to divert 75 percent. (§ 41780.01.) Failure to submit a timely
or adequate plan may subject local government entities to substantial fines.
(§§ 41810-41813.)
Cities must identify funding sources available to pay for preparing,
adopting and implementing the components of their plans. (Stats. 1989,
ch. 1095, § 22 [§ 41230].) The Act authorizes cities and counties to impose
fees, based on the type or amount of solid waste, in amounts sufficient to pay
the costs of preparing and implementing waste management plans. (Id.
[§§ 41900, 41901].) They may collect these fees directly or arrange for them
to be collected and remitted by a solid waste hauler providing solid waste
collection for that city or county. (Id. [§§ 41901, 41902].)
To enable accurate tracking of local governments’ progress in reducing
and diverting waste, the Act was amended in 1992 to require landfill
8 The Act authorizes cities and counties to join forces or form districts
to prepare and implement the planning requirements of the Act.
(Stats. 1989, ch. 1095, § 22 [§ 41823].)
13
operators, to the extent practicable, to report periodically to each county the
tonnages of waste from that jurisdiction that had been deposited at their
facilities and required waste haulers to report to landfill operators the origin
of the waste they delivered. (Stats. 1992, ch. 1292 (Assem. Bill No. 2494),
§ 44 [§ 41821.5, subd. (a)].) The amendment imposed similar obligations on
recycling and composting facilities. (Id. [§ 41821.5, subd. (b)].) It required
counties, in turn, to periodically report to cities, regional waste management
entities and CalRecycle the amounts of waste disposed and the categories and
amounts of waste diverted to recycling and composting facilities, by
jurisdiction or region of origin. (Id. [§ 41821.5, subd. (c)].)
In 1994, the Legislature strengthened the reporting requirements,
making them mandatory by eliminating the “to the extent practicable”
language and authorizing CalRecycle to adopt implementing regulations
(Stats. 1994, ch. 1227 (Assem. Bill No. 688), amending § 41821.5.) CalRecycle
adopted regulations establishing a disposal reporting system, establishing
record retention and quarterly reporting requirements for landfills, haulers
and local jurisdictions, and requiring identification of waste by the
jurisdiction of origin. (See 14 Cal. Code Regs., tit. 14, §§ 18813.4-18813.11,
18814-18814.11, 18815.1-18815.13.) In 2007, CalRecycle implemented an
electronic disposal reporting system to simplify the reporting process for all
reporting entities. (Assem. Bill No. 901 Sen. Rep., p.4); see Cal. Code Regs.,
tit. 14, § 18815.2, subd. (a)(44), (45).)
B. Assembly Bill No. 901: 2015 Amendment of Section 41821.5
Problems with reporting led the Legislature to streamline and
strengthen the reporting process by amending section 41821.5 in 2015.
(Assem. Bill No. 901 Sen. Rep., pp. 4-6); Stats. 2015, ch. 746, § 1.) The
problems included noncompliance and tardiness on the part of landfills in
14
reporting to counties and tardiness on the part of counties in reporting to
CalRecycle. (Assem. Bill No. 901 Sen. Rep., p. 5.) There had also been high
profile cases of corrupt and fraudulent reporting by landfills, recycling
facilities and their employees. (Id. at p. 6.) Three of the four cases involved
theft or avoidance of fees. The Legislature amended section 41821.5 to
streamline reporting and create enforcement mechanisms to ensure the
timeliness and accuracy of waste disposal information. (Assem. Bill No. 901
Sen. Rep., pp. 4-5.)
As amended, section 41821.5 requires landfills and recycling facilities
to submit information on disposal tonnages, by jurisdiction or region of origin,
directly to CalRecycle and, in the case of landfills, to counties that request it.
(Stats. 2015, ch. 746 (Assem. Bill No. 901), § 1 [§ 41821.5, subd. (a)].)
Haulers continue to bear responsibility for providing landfills information on
the origin of the solid waste they deliver to landfills. (Ibid.) Recycling and
composting operations are required to report on types and quantities of
materials disposed of, sold or transferred to CalRecycle. (Id. [§ 41821.5,
subd. (b)(1)].) A new provision adds exporters, brokers and transporters of
recyclables or compost as mandatory reporters. (Id. [§ 41821.5, subd. (b)(2)].)
CalRecycle is authorized to provide this information, aggregated by company,
to local jurisdictions on request. (Id. [§ 41821.5, subd. (b)(3)].) CalRecycle is
required to adopt regulations to implement section 41821.5. (Id. [§ 41821.5,
subd. (c)].) Enforcement provisions subject persons who fail to submit
information, knowingly submit a false report, fail to allow inspection, fail to
retain records or destroy or alter records for the purpose of falsifying them to
civil penalties. (Id. [§ 41821.5, subds. (d)-(f)].)
The amendment added a subdivision (g) to section 41821.5 that
addresses inspection rights for CalRecycle and local government entities.
15
Section 41821.5, subdivision (g)(1) provides, “Notwithstanding [trade
secret laws], all records that a [landfill or recycling facility] is reasonably
required to keep to allow [CalRecycle] to verify information in, or verification
of, the reports required pursuant to subdivisions (a) and (b) and
implementing regulations shall be subject to inspection and copying by
[CalRecycle], but shall be confidential and shall not be subject to disclosure
under the California Public Records Act . . . .”
Section 41821.5, subdivision (g)(2) provides, “Notwithstanding [trade
secret laws], an employee of a government entity may, at the disposal facility,
inspect and copy records related to tonnage received at [a disposal facility] on
or after July 1, 2015, and originating within the government entity’s
geographic jurisdiction. Those records shall be limited to weight tags that
identify the hauler, vehicle, quantity, date, type, and origin of waste received
at a disposal facility. Those records shall be available to those government
entities for the purposes of [section 41821.5,] subdivision (a) and as necessary
to enforce the collection of local fees, but those records shall be confidential
and shall not be subject to disclosure under the California Public Records
Act . . . . Names of haulers using specific landfills shall not be disclosed by a
government entity unless necessary as part of an administrative or judicial
enforcement proceeding to fund local programs or enforce local franchises.”
Finally, section 41821.5, subdivision (g)(3) provides, “A government
entity may petition the superior court for injunctive or declaratory relief to
enforce its authority under paragraph (2). The times for responsive pleadings
and hearings in these proceedings shall be set by the judge of the court with
the object of securing a decision as to these matters at the earliest possible
time.”
16
C. Section 41821.5, Subdivision (g)(2) Authorizes Local
Government Entities to Inspect and Copy Landfill Records
Pertaining to Local Waste Without Precondition.
At the crux of this appeal is Waste Connections’ contention that
section 41821.5, subdivision (g)(2), and specifically, the language “as
necessary to enforce the collection of local fees,” imposes a burden of proof on
local government entities who seek to enforce their inspection rights to prove
inspection is “necessary” to enforce collection of local fees. The Authority’s
rejoinder to this contention is that the “as necessary” language does not
impose such a burden or prerequisite to inspection and means that which is
convenient, or useful to local government entities in enforcing fee ordinances.
In essence, the Authority contends “as necessary” is a shorthand for agencies
with fee ordinances, and that the Legislature has already determined the
specified records are useful for enforcing such ordinances.
“We review de novo questions of statutory construction. In doing so,
‘ “our fundamental task is to ‘ascertain the intent of the lawmakers so as to
effectuate the purpose of the statute.’ ” ’ [Citation.] As always, we start with
the language of the statute, ‘giv[ing] the words their usual and ordinary
meaning [citation], while construing them in light of the statute as a whole
and the statute’s purpose [citation].’ ” (Apple Inc. v. Superior Court (2013)
56 Cal.4th 128, 135.) In determining legislative intent, “ ‘we first look to the
plain meaning of the statutory language, then to its legislative history and
finally to the reasonableness of a proposed construction.’ ” (MacIsaac v.
Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076,
1082.)
For the reasons we set out below, we conclude section 41821.5,
subdivision (g)(2) cannot plausibly be construed as Waste Connections would
have us construe it. The context of subdivision (g)(2) does not support Waste
17
Connections’ interpretation. Moreover, the purposes of the amendment, as
reflected in its legislative history, and the purposes of the statute as a whole,
would be thwarted by such a reading. The interpretation urged by the
Authority, on the other hand, is both plausible and consistent with the
language, context and purposes of the section and the Act.
1. In Context, the Phrase “As Necessary” Does Not Impose a
Precondition on Local Government’s Right to Inspection
of Records.
The “as necessary language” appears in a sentence in section 41821.5,
subdivision (g)(2) that begins, “Those records shall be available to those
government entities for the purposes of subdivision (a) and as necessary to
enforce the collection of local fees . . . .” (§ 41821.5, subd. (g)(2), italics added.)
Section 41821.5, subdivision (g)(3) provides, “A government entity may
petition the superior court for injunctive or declaratory relief to enforce its
authority under paragraph (2).” (Italics added.) These provisions read
together suggest that “shall be available” refers to a mandatory requirement,
not a conditional one, particularly because the mechanism provided for
government entities “to enforce” their “authority” to inspect indicates
inspection is a power or a right. 9
Further, the usage of “as necessary” in the context of section 41821.5 as
a whole, is consistent with the Authority’s interpretation. Section 41821.5 is
entitled “Submission of information by disposal and recycling facilities;
9 See Dictionary.com/browse/authority (defining “authority” as “the
power to determine adjudicate, or otherwise settle issues or disputes;
jurisdiction; the right to control, command or determine”; “a power or right
delegated or given”); Merriam-webster.com/dictionary/authority (defining
“authority” as “power to influence or command thought, opinion or behavior”;
“freedom granted to one in authority: RIGHT”).
18
penalties for violation; maintenance of records.” As its title suggests, the
section imposes obligations on disposal facility operators and other waste
handlers to provide information, some by way of periodic reports and some
through inspection of records. Section 41821.5, subdivisions (a) and (b)
concern reporting obligations, (c) through (f) address regulations and
penalties for noncompliance and false reporting, and (g) addresses obligations
to make certain records available for inspection and proceedings to enforce
those inspection rights.
Section 41821.5, subdivision (g)(2) governs local governments’
inspection and copying rights. 10 The first sentence provides local government
entities the authority to inspect and copy specified records related to waste
originating in their jurisdiction. The second specifies precisely which records
they are entitled to inspect: “weight tags that identify the hauler, vehicle,
quantity, date, type, and origin of waste received at a disposal facility.” The
third states the two purposes for which local government entities may use the
records: (1) “for purposes of subdivision (a),” which we understand to mean to
verify tonnages reported by landfills as originating from that local
jurisdiction, and (2) “as necessary to enforce the collection of local fees.” It
also requires the records to be kept confidential. The fourth sentence protects
information about the identity of haulers, prohibiting its disclosure in all but
two circumstances.
The title and substance of section 41821.5 provide contextual support
for the Authority’s interpretation. The entire thrust of the section is about
requiring landfills and recycling companies to provide information to state
10 A “government entity” for purposes of section 41821.5 means a “city,
county or [approved] regional agency.” (§§ 41821.5, subd. (g)(4), 40145,
40976.)
19
and local government entities concerning the tonnages of disposed waste
emanating from local jurisdictions. Further, the section emphasizes
enforcement of state and local governments’ rights to receive reports and to
inspect the records. In particular, there are penalties for failure to report and
for falsifying information and there is an injunctive or declaratory relief
remedy for local government entities to enforce their inspection authority.
(§ 41821.5, subds. (c)-(f), (g)(3).) There are protections for landfills and
recycling companies, such as keeping records confidential, limiting the scope
of the records subject to inspection, and limiting the purposes for which
records may be used. None of these protections explicitly denies government
access to information the statute authorizes it to receive or inspect.
In short, read in the context of the entire section, the language “as
necessary to enforce the collection of local fees” means local agencies with fee
ordinances are entitled to inspect and copy the records identified in
section 41821.5, subdivision (g)(2). It does not impose as a precondition any
factual showing of necessity.
2. The Surplusage Argument.
Waste Connections contends that unless the words “as necessary” are
read to impose a burden on local government entities of proving factual
necessity as a prerequisite to inspection the language will be “surplusage”
and have no meaning. We do not agree.
First, the language “as necessary” does not inevitably mean essential,
as Waste Connections argues. 11 As the parties point out, courts have
11 Waste Connections argues the Authority failed to allege or prove it
“need[s]” “Waste Connections’ records, not just any records,” that the
information is not “available from other sources,” and “why Waste
Connections’ hauler identification records . . . are necessary in addition to all
20
interpreted the word “necessary” in different ways depending on its context.
(See M’Culloch v. Maryland (1819) 17 U.S. 316, 413-414 [interpreting
“necessary” in necessary and proper clause to mean “employing any means
calculated to produce the end, and not as being confined to those single
means, without which the end would be entirely unattainable”];
San Francisco Fire Fighters Local 798 v. City and County of San Francisco
(2006) 38 Cal.4th 653, 672, 674 (San Francisco Firefighters) [holding
“necessary” in context of Charter provision was intended “in its broader
sense, i.e., ‘that which is . . . convenient, useful, appropriate, suitable, proper
or conducive’ ”]; Estate of Kerkorian (2018) 19 Cal.App.5th 709, 720
[concluding phrase “as necessary,” in the context of Probate Code
section 11704, subdivision (b), was used “in its ‘useful’ or ‘appropriate’ sense,
and not as a freestanding requirement satisfied only by a showing of
indispensability”]; Pacific Gas & Elec. Co. v. Hay (1977) 68 Cal.App.3d 905,
911, 913 [eminent domain statute requiring taking of property be necessary
to public use did not require “factual showing of absolute necessity” but only
“a reasonable or practical necessity”]; see also People v. Belous (1969)
71 Cal.2d 954, 960 [law banning abortion except where “necessary to
preserve” life of mother was unconstitutionally vague, noting “[d]ictionary
definitions and judicial interpretations fail to provide a clear meaning for the
words, ‘necessary’ or ‘preserve’ ”].)
Nor does “as necessary” inevitably mean, as Waste Connections argues,
that landfill operators can raise a “factual defense” to an inspection demand,
forcing local government entities to engage in discovery, make evidentiary
showings and obtain judicial findings of “necessity.” The question is who
of the detailed information about Alameda County’s solid waste to which the
Authority already has access.”
21
determines what is “necessary” under the statute, and here the Legislature
could well have decided for itself that inspection and copying of the specified
records is “necessary” for enforcement of local fee ordinances or could have
given local governments discretion decide that issue. Again, the context of
the language supports the Authority’s interpretation, which is that “as
necessary to enforce collection of local fees” is simply a shorthand “for
government entities that have adopted fee ordinances pursuant to
section 41901.” As the Authority points out, not all local jurisdictions
necessarily have fee ordinances; the Act permits, but does not require, them
to impose fees. (§§ 41900, 41901.) The Authority argues that the
Legislature’s specific identification of a very narrow set of records and its
directive that such records “shall be available to government entities . . . as
necessary to enforce collection of fees” simply means that local government
entities with fee ordinances are entitled to inspect those records. Under the
Authority’s interpretation, there is no factual question to be litigated or
determined, since the superior court granted judicial notice of the Authority’s
fee ordinance, and Waste Connections does not dispute that the Authority
adopted the ordinance.
This interpretation does not render the language devoid of meaning or
otherwise “surplusage.” “As necessary” is not without significance. It means
that local government entities with fee ordinances have authority to use the
records for a second purpose, i.e., to enforce those ordinances. Government
entities without such fees, on the other hand, may inspect, copy and use
records only for the purpose of verifying reported tonnages used to determine
their diversion rates. In short, Waste Connections’ surplusage argument
lacks merit.
22
3. Waste Connections’ Proffered Interpretation Would
Undermine the Legislative Purposes of Both Assembly
Bill No. 901 and Assembly Bill No. 939.
The legislative history of Assembly Bill No. 901 also supports the
Authority’s interpretation. It indicates that, in amending section 41821.5,
the Legislature was concerned about ensuring timely access to records.
Besides streamlining the reporting process because of delays resulting in part
from landfills’ failures to report timely and failures to report at all, the
Legislature sought to ensure prompt access to records for verification
purposes. Thus, the mechanism it provided government entities to enforce
the inspection requirement is an expedited one. “A government entity may
petition the superior court for injunctive or declaratory relief to enforce its
authority under [section 41821.5, subdivision (g)(2)]. The times for
responsive pleadings and hearings in these proceedings shall be set by the
judge of the court with the object of securing a decision as to these matters at
the earliest possible time.” (§ 41821.5, subd. (g)(3), italics added.) Waste
Connections’ proposed interpretation of “as necessary” to impose a burden on
local governments to prove necessity in proceedings entailing discovery,
presentation of evidence and factual findings would thwart this overarching
legislative goal of timely reporting and verification.
The legislative history also underscores the importance of verification
both for measuring diversion and for enforcement of fees. As we have already
discussed, noncompliance with reporting requirements and theft and
avoidance of fees were the concerns that led to the amendment. The Senate
Rules Committee Report on Assembly Bill No. 901 describes four high-profile
incidents in which landfills and a recycling facility reported false information.
Three of those incidents involved avoidance or theft of fees. (Assem. Bill
No. 901 Sen. Rep., p. 5.) Such false reporting, the Report states, “can defraud
23
local jurisdictions and the state out of millions of dollars in revenue.” (Ibid.,
italics added.) The Senate Rules Committee Report further observes,
“California has set a goal of achieving a recycling rate of 75% by 2020. Many
actions will be needed to achieve that goal, but most importantly it will be
necessary to have accurate and timely data on waste disposal and recycling.”
(Assem. Bill No. 901 Sen. Rep., p. 4, italics added; see also Sept. 10, 2015
letter from bill author to Chief Clerk of the Assembly published in Assembly
Daily Journal on Sept. 12, 2015, at p. 3223 [“This inspection authority is
critical to verifying the information provided to CalRecycle and local
jurisdictions”].) Imposing an evidentiary showing requirement and burden of
proof on local governments to show necessity as a prerequisite to inspection
would also undermine the legislative purpose of preventing theft and
avoidance of local fees. The Authority’s interpretation, which would allow all
local government entities with fee ordinances to obtain and use the records
for fee enforcement purposes, without condition, by contrast, would further
those legislative aims.
The broader purposes of the entire Act likewise would be ill-served by
Waste Connections’ interpretation and well-served by the Authority’s. Key
among the Act’s purposes is its requirement that local jurisdictions adopt and
implement plans to reduce reliance on landfills by maximizing diversion of
waste. (§ 40052.) As we have already described, the Task Force report that
led to the enactment of Assembly Bill No. 939 observed that the state’s
existing legislation and policies favoring reduction of waste and recycling
over disposal in landfills had been ineffective and over 90 percent of waste
was still being disposed of in landfills. “A major failing of past State solid
waste policies,” the Task Force report observed, was “the lack of resources for
State and local agencies to implement legislative mandates for solid waste
24
management” and “[e]ffective implementation of an IWM [integrated waste
management] system will require that proper funding mechanisms be
established.” To that end, the Task Force recommended that the government
“determine the level of funding needed” to implement an IWM system and
establish state and local funding mechanisms. For local governments, it
recommended the Legislature “[p]rovide funds . . . by expanding local
authority to levy collection and disposal surcharges.”
The Legislature did just that. It included a provision authorizing
counties and cities to “impose fees in amounts sufficient to pay the costs of
preparing, adopting, and implementing a countywide integrated waste
management plan prepared pursuant to this division.” (§ 41901.) And when
it revised the reporting provisions and adopted the inspection provisions in
section 41821.5, it was concerned about false reporting that deprived both
state and local governments of fees. (Assem. Bill No. 901 Sen. Rep., p. 5
[“This authority is needed because, according to CalRecycle, two-thirds of
DRS reports are late, incomplete, or inaccurate. Timely and accurate reports
are needed if we are to achieve our goal of 75% recycling. Furthermore,
inaccurate reporting can defraud local jurisdictions and the state out of
millions of dollars in revenue”], italics added.) The remedy was to permit
inspection of records to verify the tonnages, not only for purposes of ensuring
diversion rates were accurate, but also to verify that state and local
governments were receiving the fees they need to fund their waste
management efforts. Again, making inspection more difficult and delaying it
with litigation over whether “necessity” is present would hobble the
inspection provision in section 41821.5, subdivision (g)(2) and hamper local
governments’ ability to collect fees to fund their state-imposed waste
management obligations.
25
In short, the legislative history of the Act generally and the amendment
of section 41821.5 support the Authority’s interpretation and refute Waste
Connections’.
4. The Proprietary Records and Misuse Arguments
Waste Connections contends that the “as necessary” language was
included to protect against disclosure, and prevent potential misuse, of
proprietary records. Those dogs won’t hunt.
The “as necessary” language does not apply to the records obtained for
the purpose of verifying tonnages used to determine diversion rates under
section 41821.5, subdivision (a). However, any potential for “misuse” that
may exist would exist regardless of the stated purpose for which the records
were obtained. Under Waste Connections’ interpretation, a local government
entity may inspect weight tags to verify the accuracy of reported tonnages
used to calculate its diversion rate without any showing of necessity, but if
the same government entity seeks to inspect the same records to verify the
accuracy of the same reported tonnages in order to determine whether haulers
are remitting all of the local fees that are due, it must first demonstrate
necessity. Waste Connections fails to explain why the Legislature would
have imposed a burdensome proof requirement on local government entities 12
as a precondition to inspection when undertaken for one—but not the other—
of two permissible purposes.
Nor are we persuaded that the “as necessary” language was intended to
address concerns about the disclosure of proprietary information. The
Legislature directly addressed the issue of trade secrets and sensitive
12 Waste Connections’ interpretation inevitably would result in delay,
as this case demonstrates. Five years have elapsed since the Authority
sought to inspect the records.
26
proprietary documents. First, it specified the inspections are authorized
“[n]otwithstanding” trade secret laws. (§ 41821.5, subd. (g)(2).) Second,
although inspection is not barred by those laws, the Legislature limited the
purposes for which the records may be used, required that they be kept
confidential and provided that they would not be subject to disclosure under
the Public Records Act. It also specified that hauler identity can only be
disclosed in certain administrative and judicial proceedings. And again, if
the “as necessary” language had been intended to reduce local government’s
access to proprietary information, the Legislature would have imposed the
burden on any access to the records, not just access for fee purposes.
In short, we conclude that the meaning the Legislature intended by the
phrase “as necessary to enforce the collection of local fees” is that local
government entities who funded their waste management responsibilities by
imposing fees could use the information they are entitled to inspect for the
additional purpose of verifying the tonnages on which those fees are based.
(See § 41901 [“The fees shall be based on the types or amounts of the solid
waste . . .”].) The Legislature, aware of waste handlers’ ability to defraud
local governments of fees, determined the specified records would be useful
for that purpose. Thus, the Act authorized the Authority to inspect and copy
the records of Waste Connections and its landfills related to tonnage received
at those facilities on or after July 1, 2015, and originating within the
Alameda County, including weight tags identifying the haulers, vehicles,
quantities, dates, types, and origins of the waste received, and to do so
without precondition.
D. The Authority Was Entitled to Judgment on the Pleadings.
As we have indicated, the parties’ pleadings reflect no dispute as to the
material facts, which in essence are that the Authority requested the records
27
pursuant to section 41821.5 and Waste Connections refused to provide them
in an unredacted form, instead removing the identities of the haulers who
delivered the waste to Waste Connections’ landfills. The issue where there is
a real dispute is a legal one, regarding the interpretation of section 41821.5,
subdivision (g)(2) of that section, and specifically, the words “as necessary.”
In its appellate briefs, Waste Connections’ arguments are all premised
on its interpretation of the statute as requiring a factual showing of necessity.
According to the opening brief, this case “turns on” “what private confidential
business records, if any, are ‘necessary’ for a local waste industry regulator to
review in order to enforce its local fees.” It contends it was entitled to litigate
this “factual” issue and that the superior court acted “prematurely” in
granting judgment on the pleadings, depriving it of this “properly-pled
defense.”
At oral argument, we asked Waste Connections’ counsel whether, if we
disagreed with his interpretation of section 41821.5, there were other factual
issues that precluded the grant of judgment on the pleadings. He responded
that there were none and conceded that if we disagreed with his
interpretation the appeal would fail.
Waste Connections’ arguments fail because, as we have explained, the
statute requires no showing of factual necessity and thus the pleadings
present no factual issue. Rather, the Legislature itself determined that local
governments’ access to specified documents, including hauler information, is
necessary to enforce such local fee requirements for those local governments
that have adopted fee ordinances under section 41901. Given our
interpretation, nothing in Waste Connections’ answer raises a legally viable
defense to the Authority’s claims. This is true with respect to the answer’s
denials and general allegations and its affirmative defenses. Waste
28
Connections argues only that those defenses “raise a factual defense on the
key issue in contention between the parties: whether the Authority actually
needed years of Waste Connections records . . . in order to enforce Alameda
County fees.” 13 Having determined, however, that the Authority is not
required to show “actual need” for the records, we conclude the affirmative
defenses fail to state defenses as a matter of law. 14
DISPOSITION
The judgment is affirmed. The Authority shall recover its costs on
appeal.
13 For example, it contends its affirmative defense alleging the
Authority failed to adequately supervise the haulers and this was the cause
of any misreported fees, provided a basis for a factfinder to “conclude that the
Authority did not yet need all these Waste Connections records in order to
enforce those fees.”
14 Our dissenting colleague suggests that the fact that the Authority’s
own fee ordinance requires handlers of solid waste in Alameda County to
report to the Authority the quantities and destinations of the solid waste,
including all destination landfills in California and their addresses,
demonstrates that it has other means of obtaining the information it seeks.
(Dis. Opn. at pp. 3, 16.) Even if “as necessary” is interpreted to mean “useful”
or “convenient,” he argues, judgment on the pleadings should have been
denied because Waste Connections was entitled to show the records would
not even be useful or convenient to the Authority.
We cannot agree. First, Waste Connections and its landfills are not
located in Alameda County and thus are not within the reach of the
Ordinance. To inspect their records, the Authority must rely on the authority
provided by section 41821.5, subdivision (g)(2). Second, landfills have been
guilty of fraudulent reporting and underpayment of government fees.
Inspecting and comparing information from haulers and information from the
disposal facilities where they have deposited Alameda County’s waste will
enable the Authority to ensure that neither the landfills nor the haulers are
avoiding their fee obligations.
29
STEWART, J.
I concur.
KLINE, P.J.
Alameda County Waste Management Authority v. Waste Connections US, Inc.
(A158323)
30
RICHMAN, J.
I respectfully dissent.
My disagreement with the majority is about the following language in
the Integrated Waste Management Act: “[A] government entity may, at the
disposal facility, inspect and copy records related to tonnage received at the
facility. . . . Those records shall be available to those government entities . . .
and as necessary to enforce the collection of local fees . . . .” (Pub. Resources
Code, § 41821.5, subd. (g)(2) (section 41821.5).) 1
The majority construe this language, and particularly the words “as
necessary,” as imposing no obligation on the governmental entity to
demonstrate that an inspection demand for records is in fact related to the
bona fide collection of fees the governmental entity is authorized to impose.
I read the words “as necessary to enforce the collection of local fees”
very differently. To me, the plain import of these words is not a grant of
unchecked power to local government. It cannot be that a governmental
entity has only to assert that its inspection demand is “necessary to enforce
the collection of . . . fees.” And I do not believe the Legislature intended to
make that simple assertion completely immune from judicial scrutiny.
The same statute that authorizes record inspection provides that a
governmental entity “may petition the superior court . . . to enforce its
authority” to inspect tonnage records. (§ 41821.5, subd. (g)(3).) The
majority’s interpretation would not let a court determination whether the
inspection demand was bona fide or bogus. No, as they would have it, “the ‘as
necessary’ language of [section 41821.5] requires neither a factual showing
nor a factual determination” that the claimed necessity was genuine. (Maj.
All further statutory references are to the Public Resources
1
Code unless otherwise specified.
1
Opn., at p. 3.) I cannot believe the Legislature meant to reduce that judicial
proceeding to “an arid ritual of meaningless form” (Staub v. City of Baxley
(1958) 355 U.S. 313, 320), making a superior court judge little better than a
potted plant.
The Statutory Scheme
The Act, better known as “AB 939” its enabling legislation (and as it
will usually be referred to here), is found at Public Resources Code section
40000 et seq. (Assem. Bill No. 939 (1989–1990 Reg. Sess.); see Stats. 1989,
ch. 1095, § 22.) The stated purpose of AB 939 is to “reduce, recycle, and reuse
solid waste . . . to the maximum extent possible.” (§ 40052.) Among other
things, it requires that at least 50 percent of city and county solid waste be
diverted from landfill disposal. It also seeks to ensure that by the year 2020,
75 percent of solid waste is reduced, recycled, or composted. (§§ 41780,
subd. (a); 41780.1, subd. (a).) To achieve these goals, local governments must
adopt and implement waste management plans that “quantify all solid waste
generated” and establish waste reduction and diversion programs. (§§ 40901,
41750.) And under AB 939, local agencies may enact solid waste fees based
on the type and amount of waste generated within their jurisdiction, which
are to pay for the implementation of waste diversion programming and help
achieve the state’s aggressive diversion requirements. (§ 41901; see also
§§ 40901, subd. (a); 41780, subd. (a); 41780.01, subd. (a); and 41750.)
The majority discusses various parts of the pertinent legislation,
including some aspects of Alameda County Ordinance 2009-01. Nowhere
mentioned in the majority opinion, however, is the aspect of the Ordinance
which, as the Authority itself describes it, “established procedures and
reporting requirements for the collection of the $4.34 fee on each ton of solid
waste deposited within or outside of Alameda County.” Not only did the
2
Ordinance allow the Authority to collect the $4.34 fee, it also allows it to
collect comprehensive information and records regarding the solid waste
haulers operating in Alameda County. Thus, for example, the Ordinance
requires direct data and records reporting from any individual or company
handling solid waste in Alameda County, including “the weight of Solid
Waste physically collected from within each Jurisdiction of Origin, the
Permitted Waste Facilities or other Solid Waste Enterprises to which Solid
Waste is delivered, and the weight of Solid Waste that is ultimately
Deposited in Landfills and therefore subject to the Facility Fee.” (See
Alameda County Ord. 2009-01, § 7 (a).) In short, all handlers of solid waste
in Alameda County must report monthly to the Authority quantities, origins,
and destinations of all solid waste, including all destination landfills in
California and their addresses. (Id., §§ 3(a)–(m), 7(a), 7(a)(1)–(4), 7(b).) And
all records documenting this reporting must be retained by the solid waste
handlers for five years—and be provided to the Authority upon request. (Id.,
§ 9.)
The Authority’s responsibilities include ensuring that the county (and
its cities) comply with California’s waste management laws and also
developing the Countywide Integrated Waste Management Plan. The
Authority’s activities are funded by its “939 Fee,” which implements a fee of
$4.34 on each ton of solid waste originating within the county that is disposed
of in a California landfill. And pursuant to the Authority’s 939 Fee
Ordinance, all haulers of waste originating in Alameda County are required
to pay the 939 Fee whether they dispose of their waste at an Alameda County
landfill or one out-of-county. (Alameda County Ord. 2009-01, § 2(e).)
In October 2015, the Legislature passed Assembly Bill No. 901,
amending AB 939 in various ways, which amendment took effect on January
3
1, 2016. (Assem. Bill No. 901 (2015–2016 Reg. Sess.) Stats. 2015, ch. 746,
§§ 1–5.) Three paragraphs of the amended section 41821.5 are pertinent,
most significantly for the issue before us here, subdivision (g)(2), which
provides in pertinent part as follows: “an employee of a government entity
may, at the disposal facility, inspect and copy records related to tonnage
received at the facility on or after July 1, 2015, and originating within the
government entity’s geographic jurisdiction. Those records shall be limited to
weight tags that identify the hauler, vehicle, quantity, date, type, and origin
of waste received at a disposal facility. Those records shall be available to
those government entities for the purposes of subdivision (a) and as
necessary to enforce the collection of local fees.”
The Facts
On January 8, 2016, a week after the revisions to section 41821.5 went
into effect, the Authority sent a letter to Waste Connections requesting
documents from its facilities in Kings, San Benito, and Solano counties. The
letter requested that the Authority be allowed to inspect and copy all of
Waste Connection’s “weight tag” records statewide, reflecting “received waste
identified as originating from within Alameda County” dating back to
July 1, 2015, the earliest available date under the statute. The letter made
clear the request included the identities of individual waste haulers, which
are part of “weight tag” records, though the agency promised not to publicly
reveal those identities unless administratively or judicially required. The
letter also stated that the Authority was “making this request for the
purposes of collection of local fees.”
Following a letter from Waste Connections seeking clarification, on
January 22, a lawyer for the Authority sent another letter renewing its
request for the records. The January 22 letter explained that the Authority
4
was seeking to review “the complete disposal record attributable to Alameda
County,” i.e., the identity and disposal records of all individual haulers
bringing waste from Alameda County to any Waste Connections landfill in
California, thus seeking access to Waste Connections’s entire statewide set of
data relating to Alameda County, including the identity of all of its California
customers disposing of waste from the county. As the letter put it, “The scope
of our inquiry is thus to inspect and copy all weight tickets issued at [Waste
Connections] owned or operated disposal facilities within the State of
California for waste which has a jurisdiction of origin within Alameda
County.” This letter also expressly noted that the purpose of the Authority’s
request for the documents was the “collection of local fees.”
As will be seen, the Authority has never explained—not in either letter,
not in any of the pleadings it has filed—why its own information reporting
and collection law is not sufficient to gather the data it needs, nor why it
needs production of all of Waste Connections’s statewide records.
The Proceedings Below
On May 9, 2018, the Authority filed in Alameda County a complaint,
and shortly thereafter an amended complaint, for declaratory and injunctive
relief. 2 It named four defendants, Waste Connections and the operators of
the three landfills, and sought an injunction ordering Waste Connections to
make available for inspection a broad range of records from the three
landfills going back to 2015, over three and one-half-years.
On August 23, Waste Connections filed its verified answer, a 12-page
pleading that denied, paragraph by paragraph, various allegations in the
complaint, and also asserted 24 affirmative defenses. Waste Connections
2The majority refers to a “petition,” the term used in section 41821.5,
subdivision (g)(3). What the Authority filed was a complaint.
5
also filed a cross-complaint for declaratory and injunctive relief, which among
other things alleged that the Authority’s inspection request violated the
Fourth Amendment.
As the majority notes—without a complete discussion—on October 11,
the Authority filed a demurrer to the cross-complaint, accompanied by a
request for judicial notice of over 90-pages of documents. The demurrer was
set for hearing in Department 15, to which the matter had been assigned for
all purposes. Waste Connections filed opposition, the Authority a reply, and
the demurrer came on for hearing on January 7, 2019, prior to which the
court had issued a tentative ruling sustaining the demurrer without leave to
amend. Waste Connections contested, and at the conclusion of a brief
hearing the court announced it would adopt the tentative decision.
On January 17, the court filed its order sustaining the demurrer
without leave to amend, which in part provided that the inspection requests
“ ‘are sufficiently limited in scope, relevant in purpose, and specific in
directive.’ See v. Seattle [(1967)] 387 U.S. [541,] 544.” What the majority
does not mention, however, is that the order expressly noted that Waste
Connections would later have the right to challenge the ruling, noting that
“There is an opportunity for judicial review as provided at [Public Resources
Code section 41821.5, subdivision (g)(3)].” 3
As will be seen, it was not to be.
The parties stipulated that 18 of the 24 affirmative defenses would be
removed leaving six remaining. So, with the cross-complaint removed from
3 Section 41821.5, subdivision (g)(3) provides: “A government entity
may petition the superior court for injunctive or declaratory relief to enforce
its authority under paragraph (2). The times for responsive pleadings and
hearings in these proceedings shall be set by the judge of the court with the
object of securing a decision as to these matters at the earliest possible time.”
6
the case, what remained was only the Authority’s complaint and Waste
Connections’s verified answer and the six affirmative defenses.
On February 22, 2019, the Authority filed a motion for judgment on the
pleadings on the complaint. It was set for hearing in Department 15, where
the demurrer had been heard. But on February 27, the matter was
reassigned to Department 33. Waste Connections filed opposition , and the
Authority a reply along with a supplemental request for judicial notice. The
motion came on for hearing on May 2 in Department 33, prior to which the
trial court had issued a tentative ruling granting the motion. And at the
conclusion of a lengthy hearing, the court took the motion under submission.
On June 21, the court filed its order granting the motion, in the course
of which it rejected Waste Connections’s primary argument that
subdivision (g)(2) requires an agency to make a showing of necessity before it
may inspect hauler weight tags. The court noted that such showing was
unnecessary because the Authority’s request was a valid administrative
subpoena and thus established that reasonableness of the Authority’s request
for documents. And the trial court also found, under what it asserted were
established principles of statutory interpretation, that subdivision (g)(2) does
not require agencies to make a factual showing of necessity prior to
exercising their right to inspect hauler weight tags. Rather, to the extent
that subdivision (g)(2) authorizes agencies to use weight tags “as necessary”
for fee enforcement, it simply recognizes that not all agencies will find weight
tags “useful” for that purpose. 4
Notably, despite the express statement in the earlier order sustaining
the demurrer—that Waste Connections would have the right to “judicial
4The court also granted the Authority’s request for judicial notice, as
had the court in sustaining the demurrer.
7
review”—the order granting judgment on the pleadings referred to that
earlier ruling and observed, however conclusory, that the court had “already
determined that the administrative subpoena at issue is valid.” In short, one
trial judge first concluded that the Authority’s request was akin to a valid
administrative subpoena in part because there would be an opportunity for
judicial review, and later a different trial judge denied any substantive
judicial review because the request had already been “determined” to be a
valid administrative subpoena. Lost in this circular process was any actual
opportunity for judicial review of the Authority’s inspection request, whether
it was a subpoena or not—not to mention that it denied Waste Connections
the opportunity to challenge the scope, relevance, or reasonableness of the
purported subpoena.
On August 14, the court entered its judgment, and on August 29, Waste
Connections filed its appeal.
DISCUSSION
Introduction and Summary of the Parties’ Positions
As quoted above, subdivision (g)(2) provides that the records provided
for in the statute “shall be available . . . for the purposes of subdivision (a)
and as necessary to enforce the collection of local fees.” The focus was, and is,
on the “as necessary” language, as the Authority has never asserted, not in
its letters, not in any pleading, that it is seeking the records for the purposes
of subdivision (a). 5
5As noted, both letters from the Authority expressly state that the
Authority wanted the records to enforce its local fees. Moreover, the
“purposes” of subdivision (a) do not involve the hauler identification data that
the Authority is seeking in this case. (See § 41821.5, subd. (a).) Finally,
Waste Connections voluntarily produced the records required by
subdivision (a).
8
The position of the Authority—a position with which the trial court
fundamentally agreed, the position the majority readily adopts—is that a
showing of “necessary” is not a predicate to inspection. In the Authority’s
words, “Nothing in this language suggests that the term ‘as necessary’ was
intended as a restrictive constraint on public agencies’ ability to obtain
weight tag records in the first instance.” Elaborating, the Authority asserts
that because section 41821.5 defines the documents that may be inspected,
the Legislature “effectively determined the documents that would assist the
agencies in verifying waste disposal reports and fee enforcement efforts.”
And, the Authority asserts, “as necessary” appears in the sentence describing
how the Authority may “use” the information, not what information it can
collect.
In claimed support, the Authority asserts that courts have recognized
“use of the word ‘necessary’ must be understood in context,” citing Estate of
Kerkorian (2018) 19 Cal.App.5th 709, 720. The Authority also cites San
Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006)
38 Cal.4th 653, 674, 673, which noted that “city action [] . . ‘necessary’ to
ensure compliance with antidiscrimination laws” meant action that is
“convenient, useful, appropriate, suitable, proper or conductive” to ensure
compliance.
Waste Connections contends that Authority must demonstrate that the
records are “necessary” for some proper purpose, that the records “are only
‘available . . ‘ (i.e., for inspection) to the Authority ‘. . . as necessary’ to enforce
local fees. This interpretation harmonizes the two prongs of the sentence,
which are both independent, purpose-based limitations on the ‘availability’ of
the records: (1) ‘for the purposes of [§ 41821.5(a)]’ and (2) ‘as necessary to
enforce the collection of local fees.’ ” Such interpretation is consistent with a
9
fundamental rule of statutory construction, in interpreting the meaning of a
statute, we look at its words and give them their “usual and ordinary
meaning.” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) “The
statute’s plain meaning controls the courts’ interpretation unless its words
are ambiguous. If the plain language of a statute is unambiguous, no court
need, or should, go beyond that pure expression of Legislative intent.”
(Kobzoff v. Los Angeles County Harbor/UCLA Medical Center
(1998) 19Cal.4th 851, 861.) And, of course, courts “should give meaning to
every word of a statute if possible, and should avoid a construction making
any word surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22, citing
Delaney v. Superior Court (1990) 50 Cal.3d 785, 798–799.)
As Waste Connections distills its position, “The provisions in
section 41821.5 applying to landfill data reporting are actually quite simple.
Subdivision (a) requires a landfill to report—to CalRecycle and to counties
that request the information—only aggregate tonnages disposed of at the
landfill, broken down by jurisdiction and region of origin. Subdivision (g)(2)
provides that counties—in addition to the requests for aggregated data
allowed by subdivision (a)—can also seek to review records identifying
individual haulers ‘as necessary’ to enforce local fees. Finally,
subdivision (g)(1) allows CalRecycle—but not counties—to review landfill
records to ‘verify’ the aggregated information submitted by landfills pursuant
to subdivision (a).”
In short, Waste Connections contends that subdivision (g)(2) gives the
Authority the right to inspect hauler identification records only “as
necessary” to enforce local fees, something the Authority did not even plead,
let alone prove. So, Waste Connections concludes, the judgment on the
pleadings cannot stand. I would agree.
10
Judgment on the Pleadings Was Error
Introduction
The Authority’s amended complaint never mentions the term “as
necessary,” but rather alleges that the fee ordinance “necessitates
information about the source, tonnage, and haulers of waste generated in
Alameda County that is deposited in other counties,” and that it “needs” the
records, allegations contained in paragraphs 20 and 23 of the amended
complaint: paragraph 20 alleges that “Enforcement of the Facility Fee
Ordinance necessitates information about the source, tonnage, and haulers of
waste generated in Alameda County that is deposited in other counties”;
paragraph 23 alleges that the Authority “sent letters” asking Waste
Connections to arrange for the Authority to review landfill records, which
these letters “explained that the [] Authority needs these records to verify
tonnage and jurisdiction of origin for purposes of the Disposal Reporting
System, and for enforcement and collection of Facility Fee Ordinance.” Both
letters were attached to the first amended complaint.
Waste Connections denied both allegations, and denied the Authority’s
characterization of its own letters. 6
Whether something is “necessitate[d]” by the fee ordinance, or whether
the Authority “need[ed]” to review Waste Connections’s records in order to
6 The majority recites for a full page the allegations Waste Connections
“admitted,” (Maj. Opn., at pp. 6–7), which the majority asserts were the
“basic facts relevant to the parties’ dispute.” (Ibid.) The amended complaint
was verified, which necessarily meant that Waste Connections would have to
admit much of that alleged. Significantly, however, the majority nowhere
describes what Waste Connections denies, which is what is pertinent on
ruling on a plaintiff’s motion for judgment on the pleadings.
Waste Connections’s denial of the characterization of the letters was
appropriate, as the characterizations are in fact incorrect: the letters do not
mention the Disposal Reporting System or any issues or records related to it.
11
enforce its local fee ordinance are questions of fact, as cases at all levels have
held for many, many years. The following are illustrative:
The Amelie (1867) 73 U.S. 18, 27: shipmaster may sell ship without
owner permission where necessary, and “necessity is a question of fact”;
Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 41: “Questions
of reasonableness and necessity depend on matters of fact”;
Carter v. Entercom Sacramento, LLC (2013) 219 Cal.App.4th 337, 350:
“[B]ecause necessity is a question of fact, the issue for us is whether the trial
court’s determination that the additional expenditures were not necessary is
supported by substantial evidence”;
Pacific Gas & Electric Co. v. Hay (1977) 68 Cal.App.3d 905, 911:
“Necessity is a question of fact”; and
Modesto Irrigation Dist. v. City of Modesto (1962) 210 Cal.App.2d 652,
658: “Questions of reasonableness and necessity depend on matters of fact.”
In short, the answer to the question of necessity turns on factual
information, including, for example, why were Waste Connections’s records
required? What were the Authority’s alternative sources of information?
And what was the extent of the records needed? These, among many others,
are questions of fact to be determined by a fact finder, factual determinations
ignored by the trial court’s ruling, a ruling the majority readily affirms.
The trial court characterized its holding as “rejecting defendants’
proposed interpretation of ‘necessary’ that would require an undefined
‘prerequisite showing for production.’ ” Necessarily, a plaintiff must prove a
required factual element of a claim in order to win a case. The court’s
“rejection” of the need for the Authority to make a “showing” prerequisite to
Waste Connections’s “production” of documents—i.e., rejection of the need for
the Authority to present evidence on a contested issue of fact before entry of
12
judgment in its favor—overlooks the fundamental requirement that a claim
in court must be proven. And it ignores the law of judgment on the
pleadings.
The Law and the Standard of Review
Code of Civil Procedure section 438, subdivision (c)(1)(A) provides that
a plaintiff can move for judgment on the pleadings on only one ground: “that
the complaint states facts sufficient to constitute a cause . . . of action against
the defendant and the answer does not state facts sufficient to constitute a
defense to the complaint.” While the statute thus provides for such a motion
by a plaintiff, cases affirming the granting of such motions are few and far
between. 7
As a leading Supreme Court case puts it, a plaintiff’s motion for
judgment on the pleadings “admits the untruths of [its] own allegations
insofar as they have been controverted,” and “all such averments must be
disregarded when there is a direct and specific denial or an indirect denial by
virtue of affirmative allegations of a contrary state of facts.” (MacIsaac v.
Pozzo (1945) 26 Cal.2d 809, 812–813 (MacIsaac).) Or as MacIsaac elsewhere
said, we assume as true all facts properly pleaded in the answer and
disregard all controverted allegations in the complaint. (Ibid; see also
Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379.)
Here, as noted, Waste Connections’s verified answer specifically denied
the Authority’s allegations of “necessitates” and “needs.” We must accept as
true those denials (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949,
954), liberally construing the facts in favor of Waste Connections. (Gerawan
7 A review of published opinions reveals only a handful of cases
affirming a judgment on the pleadings for a plaintiff. Indeed, the trial court
noted that in its 40 years of experience, 20 as a judge, 20 in private practice,
it had never even seen such a motion.
13
Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 516.) Put slightly differently,
we must accept Waste Connections’s version of the facts as true, and presume
the untruth of any of the Authority’s allegations that have been denied.
(MacIsaac, supra, 26 Cal.2d at pp. 812–813.)
So, in reviewing an order to turn over records the Authority alleged
were a “necessit[y],” records it “need[ed],” we must assume the opposite, that
the records were not a “necessity[y],” and not “need[ed].” As the Supreme
Court put it almost 100 years ago, “The denial in the answer” put the
allegations “directly in issue and made it necessary for the plaintiff to
introduce evidence thereof before he could become entitled to judgment.”
(Cuneo v. Lawson (1928) 203 Cal. 190, 193–194 (Cuneo).)
“[W]here the answer, fairly construed, suggests that the defendant may
have a good defense, a motion for judgment on the pleadings should not be
granted.” (Engine Manufacturers Assn. v. State Air Resources Bd. (2014)
231 Cal.App.4th 1022, 1034.) And an answer that denies material allegations
is a “good defense.” Again, Cuneo is apt: “It requires no citation of authority
to declare that the above-mentioned denials put in issue the assignment to
the plaintiff of the promissory note and cause of action sued upon. [¶] As the
answer sets up a good defense and denies material allegations of the
complaint, it was sufficient as against a general demurrer, and the plaintiff
was not entitled to judgment on the pleadings.” (Cuneo, supra, 203 Cal. at
pp. 193–194.) Neither was the Authority.
But there is another basis on which the holding can be reversed—that
Waste Connections’s verified denial of the “necessity” of the Authority and of
its “need” to inspect the records raises a justiciable defense under the trial
court’s own definition. That is, the Authority argued, and the trial court
agreed, that “as necessary” in subdivision (g)(2) means “ ‘that which is . . .
14
convenient, useful, appropriate, suitable, proper, or conducive’ to ensuring
compliance with . . . local fee provisions,” quoting Westphal v. Westphal (1932)
122 Cal.App. 379, 382—a definition, not incidentally, the majority itself cites
twice. (Maj. Opn., at pp. 8, 21.) So, to inspect records over Waste
Connections’s objection, the Authority must under its own definition allege
and prove that the records it seeks to review would be “convenient, useful,
appropriate, suitable, proper, or conducive” to enforce local fees. The
Authority did not allege this. And it certainly did not prove it.
But even if it did, the trial court may not simply decide, on the
pleadings, what is “convenient, useful,” etc. These are questions of fact,
answers to which require evidence. As our Supreme Court has held, the
Authority’s and trial court’s own definition of “necessary”—“convenient,
useful, appropriate, suitable, proper, or conducive”—means that the action
must be “reasonably related” to its goal. (San Francisco Fire Fighters Local
798 v. City and County of San Francisco, supra, 38 Cal.4th at pp. 674–675
[the “reasonably related” test is the “more concise modern formulation” of the
“convenient, useful [etc.]” test].) As we ourselves have noted, “the issue of
reasonableness” is a “factual question.” (Contra Costa County v. Pinole Point
Props., LLC (2015) 235 Cal.App.4th 914, 925.)
Here, despite the breadth of the Authority’s request—seeking all of
Waste Connections’s Alameda County-related records from landfills in three
counties over more than three years—the trial court did not even attempt to
evaluate reasonableness, whether the Authority’s request was “convenient,
useful,” etc. to its fee enforcement work. Are all those records
“necessitate[ed?]” Are they all “need[ed]?” Or, to put it in the words of the
Supreme Court, is the Authority’s inspection of all of those records
“reasonably related” to the enforcement of local fees?
15
Were all that not enough, I note that other than in its two conclusory
words noted above, the Authority has not alleged why it needs from Waste
Connections the information it seeks from it, and the necessity to obtain such
sensitive commercial records cannot simply be presumed in the absence of an
actual allegation—and evidence—to support it. As indicated above, the
Authority has other ways of obtaining records, the information it seeks
available from other sources. This is shown, for example, by the Authority’s
own local fee ordinance that requires all solid waste handlers doing business
in Alameda County to keep highly detailed records about their waste
handling activities, to report those activities in detail to the Authority on a
monthly basis, and to provide any record to the Authority upon request.
(Alameda County Ord., §§ 7, 9.) Moreover, CalRecycle also requires all
commercial waste haulers to keep documentation verifying their tonnages by
jurisdiction of origin, and to provide quarterly summaries to agencies like the
Authority upon request. (See Cal. Code Regs., tit. 14, § 18808.7, subd. (b)(9).)
The Authority simply has not alleged why Waste Connections’s out-of-county
hauler identification records are necessary in light of these other sources.
To sum up, the Authority filed a complaint that did not even plead the
basis of its claimed need for Waste Connections’s records, and Waste
Connections filed a verified answer denying the necessity of the Authority’s
request. Despite that, and despite the law of judgment on the pleadings, the
trial court determined that the case was over—a determination the majority
affirms. This amounts to a rubber stamp of the Authority’s request, the effect
of which would be that there is nothing a recipient of a letter can do to
contest a request by the Authority under subdivision (g)(2).
In light of this, prior to oral argument we sent a letter asking counsel to
be prepared to address whether there was any constraint on the Authority’s
16
rights, anything a recipient of its letter can do in any way contest the
request. At oral argument counsel for Waste Connections quickly answered
“yes” and cited to the “judicial review” referred to in subdivision (g)(3). Asked
the same question, counsel for the Authority hemmed and hawed and hawed
some more, finally saying that it “was what we filed here.” 8
With its focus on the 20 years of legislative history, the majority refers
to “the emerging solid waste crisis in California,” going on to discuss a parade
of horribles, including “high profile cases of corrupt and fraudulent reports by
landfills, recycling facilities and their employees”, concluding that thus, “the
purposes of the statute as a whole would be thwarted by” Waste
Connections’s reading of subdivision (g)(2). And in its penultimate paragraph
the majority sets forth its conclusion: “Waste Connections’s arguments fail
because, as we have explained, the statute requires no showing of factual
necessity and thus the pleadings present no factual issue. Rather, the
Legislature itself determined that local governments’ access to specified
documents, including hauler information, is necessary to enforce such local
fee requirements for those local governments that have adopted fee
ordinances. . . .” (Maj. Opn., at p. 28, italics added.) But the Legislature did
not say the information “is necessary,” which would have been easy to say.
No, it said the information can be inspected only “as necessary.”
Because I would reverse the holding on the “as necessary” language, I
would have to reach an issue the majority does not, the ruling by the trial
court that the request from the Authority was a valid administrative
subpoena. And I would conclude it was not.
8Counsel for the Authority also had no answer as to what an entity
could do if its records were requested in an oppressive fashion, for example,
every month or week. Nor did counsel know what an entity might do if the
records requested were beyond those referred to in the statute.
17
The Authority’s Letter Was Not a Valid Administrative
Subpoena
To briefly recap, when sustaining the demurrer without leave to
amend, the trial court held Waste Connections would later have the right to
challenge the ruling, noting “There is an opportunity for judicial review as
provided at [Section 41821.5(g)(3)].” Then, in granting the motion for
judgment on the pleadings, a different trial court referred to the earlier
ruling, and held that it had already been determined that the letter was a
valid administrative subpoena. Waste Connections argues this was error. I
agree. But before explaining why, I address the Authority’s contention that
the argument was waived.
The Authority argues that Waste Connections waived its right to argue
the subpoena issue because it does not argue error on the ruling on the
demurrer. Indeed, the Authority goes so far as to assert that any such appeal
would have been untimely, because the order sustaining the demurrer was
filed in January, 2019, and the appeal not filed until August. This, of course,
is wrong, as an order sustaining a demurrer without leave to amend is not
appealable. (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1133). The only
valid appeal is from the judgment. And that judgment was appealed, a
judgment based in part on the court’s conclusion that “the administrative
subpoena is valid”—a quotation, I note, that appears twice in the Authority’s
own brief as a basis to uphold the court’s decision. While the trial court
incorporated the prior “analysis” from the demurrer decision, I know of no
authority supporting any waiver—and the Authority offers none. And I turn
to the merits of the argument.
In response to Waste Connections’s argument, the Authority asserts
that even if Waste Connections is correct that “reasonableness can be a
question of fact, the courts are unanimous that the reasonableness of an
18
administrative subpoena in a question of law,” in claimed support of which
the Authority cites three cases: State Water Resources Bd. v. Baldwin &
Sons, Inc. (2020) 45 Cal.App.5th 40; Grafilo v. Cohanshohet (2019)
32 Cal.App.5th 428; and State ex rel. Dept. of Pesticide Regulation v. Pet Food
Express (2008) 165 Cal.App.4th 841. The cases have no applicability here, for
several reasons.
First, the cases all involve Government Code section 11181,
subdivision (e), which authorizes certain investigatory powers, including
subpoenas, for state agencies and state department heads. 9 The Authority is,
as noted, a county agency, it has no power to serve administrative subpoenas
under Government Code section 11181, subdivision (e), and it did not purport
to do so here, its document inspection request made under subdivision (g)(2).
Second, Government Code section 11181, subdivision (e) empowers
state agencies to issue “subpoenas” compelling the “production” of documents
that are “pertinent or material” to all manner of “inquiry, investigation,
hearing,” etc. in California, a broad power indeed. In contrast,
subdivision (g)(2) contains an “as necessary” standard. If the Legislature had
intended to give the Authority the power to review any document “pertinent
or material” to the enforcement of local fees without regard to necessity, it
could have done so.
9 Government Code section 11181, subdivision (e) is found in
Government Code, Title 2 (“Government of the State of California”),
Division 3 (“Executive Department”), Part 1 (“State Departments and
Agencies”), Chapter 2 (“State Departments”), Article 2 (“Investigations and
Hearings”), it applies only to state, not local, departments. Moreover, the
Authority is not empowered to serve administrative subpoenas under any
other law or under its own inherent jurisdiction. Statutory authorization is
required. (See, e.g., L. Modjeska, Admin. Law Practice & Proc. (2021)
Subpoenas, Administrative Law Practice and Procedure, § 2:4.)
19
Third, in all three cases the court did in fact hear and evaluate
evidence. In each case, the state entity issuing the subpoena filed a petition
compelling compliance required by Government Code section 11187,
subdivision (a). And in each case, the subpoena recipients filed declarations
in response. In short, the respondents had an opportunity to contest,
factually contest, the subpoenas. That did not happen here.
Last, but by no means incidentally, subdivision (g)(2) is not even a
subpoena power at all, as the Authority cannot compel the production of
documents, only onsite inspection.
20
_________________________
Richman, J.
Alameda County Waste Management Authority v. Waste
Connections US, Inc. (A158323)
21
Trial Court:Contra Costa County Superior Court
Trial Judge: Hon. Steven K. Austin
Counsel:
Beveridge & Diamond, Eric L. Klein, Gary J. Smith, James B.
Slaughter, for Defendants and Appellants.
Shute, Mihaly & Weinberger, Ellison Folk, Joseph D. Petta, and
Andrew P. Miller, for Plaintiff and Respondent.
Cole Huber, Derek P. Cole, as Amicus Curiae on behalf of
Plaintiff and Respondent.
1