American Medical Response West vs County of Santa Barbara et al
American Medical Response West vs County of Santa Barbara et al
Case Number
23CV04250
Case Type
Hearing Date / Time
Fri, 12/22/2023 - 13:30
Nature of Proceedings
Case Management Conference; Motion: Preliminary Injunction
Tentative Ruling
American Medical Response West v. County of Santa Barbara
Case No. 23CV04250
Hearing Date: 12/22/2023
HEARING: Motion for preliminary injunction and application for stay
ATTORNEYS:
Derek P. Cole / Tyler J. Sherman of Cole Huber LLP for Plaintiff/Petitioner American Medical Response West
Jordan Kearney / Erin Sclar (San Francisco) and Devin M. Senelick (Los Angeles) of Hooper, Lundy & Bookman, P.C. for Defendants/Respondents County of Santa Barbara, County of Santa Barbara Board of Supervisors, County of Santa Barbara Department of Public Health, and Santa Barbara County Fire Protection District.
Rob Bonta / Darrell W. Spence / Kevin L. Quade of the Attorney General’s Office on behalf of Amicus Curiae California Emergency Medical Services Authority.
Joseph T. Ergastolo / Andrew E. Schouten / Erica C. Loo of Wright, L’Estrange & Ergastolo on behalf of Amicus Curiae Fire Chiefs Association of Santa Barbara County
TENTATIVE RULING:
The motion for preliminary injunction and stay will be granted. The nature, scope, and terms of the preliminary injunction and stay are articulated below.
The Court will bifurcate the third cause of action from the first and second causes of action, and reserve the third cause of action for later determination, and will expedite resolution of the first cause of action for declaratory relief and second cause of action for administrative mandamus, which will be set for trial on July 16, 2024.
As more fully articulated below, the Court will specially set a Case Management Conference for 3:00 p.m. on Friday, January 5, 2024.
BACKGROUND: [Taken from both the complaint and the motion documents.] American Medical Response West (AMR) has been the exclusive provider of ambulance services for much of Santa Barbara County (County) for more than four decades. AMR and its predecessor companies have had a contract to provide ambulance service in an exclusive operating area (Zone 1) encompassing most (93%) of the County’s territory since before 1981. As such, it was “grandfathered” in and not subject to a competitive process in obtaining County’s contracts for ambulance services. Zone 2, located in the Lompoc Valley, is currently served by both AMR and the Santa Barbara County Fire Department. In Zone 3, located in the far northeastern portion of the county encompassing Ventucopa and other areas, the Fire Department is the grandfathered exclusive provider of EMS. AMR’s current contract to provide ambulance services within Santa Barbara county expires on March 1, 2024.
In 2019, in anticipation of the expiration of AMR’s existing contract, County sought to convert ambulance service from a grandfathered model to a competitive exclusivity model, and underwent an extensive process to develop an ambulance Request for Proposals (RFP) process in order to help protect procurement integrity. Emergency medical services (EMS) would still be provided exclusively by a single EMS provider, but for the first time would now be selected competitively. Pursuant to this model, the County of Santa Barbara Department of Public Health (Public Health), as the designated local EMS agency (LEMSA), issued an RFP, under which the selected provider would be awarded an exclusive contract to provide both emergency and non-emergency EMS for seven years, beginning March 1, 2024. The RFP established qualifications for EMS providers, and set forth the required contents for proposals and the procedures for protesting evaluations of proposals and appealing contract decisions. The RFP was approved by the state Emergency Medical Services Authority (EMSA) on July 13, 2022, which approval would provide antitrust immunity to both County and the selected bidder. Upon state approval, the RFP was issued.
On October 3, 2022, the General Services Department received two proposals in response to the RFP, one from AMR and one from Santa Barbara County Fire Protection District (County Fire). Both proposals were found to meet minimum requirements. A review panel, consisting of three EMS experts (one EMS physician, and two tenured EMS System leaders) and two local community leaders, independently scored the proposals. Of a possible total 2300 points, AMR scored 2077.75 points and County Fire scored 1760 points, and AMR was named the apparent successful bidder. County Fire protested the scores, but the protest was denied. County Fire then appealed to the Protest Resolution Committee, which ultimately denied its appeal. Public Health then recommended to the County of Santa Barbara Board of Supervisors (Board) that AMR be awarded a contract for exclusive ambulance service, and requested approval to negotiate a new contract.
At its April 4, 2023 meeting, the Board refused to grant approval to Public Health’s request that it be permitted to negotiate a new contract with AMR as the successful bidder in the RFP process, canceled the RFP on the determination that it was in the best interests of the County to let the current exclusive grandfathered agreement to expire and enter into a non-exclusive ambulance arrangement, and directed Public Health to explore potential amendments to the local EMS plan and amendments to the County Code to implement a non-exclusive system for emergency ambulance services, and to explore moving the LEMSA from Public Health to County Fire.
On April 11, 2023, Public Health staff met to “map out what to explore before we bring in AMR.” In response to the setting of the meeting, the LEMSA director expressed discomfort getting too far in non-exclusive provider discussion, in the presence of only one provider (County Fire)—who was then being included in the discussions. In an April 18, 2023 communication, the Assistant County Executive Officer (ACEO) asked the LEMSA Director if the ambulance ordinance would limit the number of permits “using need/necessity or something similar.” In an April 26, 2023 email thread, Public Health staff discussed a draft of the ordinance that referenced Board ability to create an EOA if it found such creation would be in the “public health, safety, welfare, convenience, and necessity.” A staff member questioned whether the Board had the authority to restrict issuances of permits if the applicant otherwise meets conditions for a permit.
In a May 4-5, 2023 email thread, the LEMSA director raised concerns, including that his agency had not been fully consulted regarding the ordinance contents and that the intended EMS system redesign was not workable. The Public Health director responded that “I am not sure how much we can influence the direction on how we are approaching this,” and suggested moving forward and hoping it would work. In a May 25, 2023 email to the Public Health director, the LEMSA director noted he had participated in a Teams meeting with the ACEO (the direct supervisor of the County Fire Chief), and it appeared that the County Fire Chief had participated in the call, which the LEMSA director found very odd. In a June 12, 2023 email to the ACEO, the LEMSA director shared concerns about the intended EMS system redesign, including concerns about how multiple ambulance providers could operate within that system.
On June 20, 2023, the Board adopted and approved Ordinance 5182. Ordinance 5182 purports to establish a “non-exclusive” system for ambulance services, through imposition of its regulatory scheme. Separate from the LEMSA’s administration of EMS, it imposes permitting mandates, and establishes County-defined experience, response time, staffing, and quality improvement criteria for receipt of a permit. First-time permit applicants must demonstrate compliance with a “need for additional ambulance service.”
The ordinance requires applicants to meet two sets of standards for permit approval. Section 5-6 establishes the “minimum qualifications” which applicants must meet, addressing, among other things, experience, capacity to meet response times, and clinical capabilities. Section 5-7 establishes “additional permit criteria,” and provides, in relevant parts:
(A) In evaluating permit applications, the Board of Supervisors shall consider the totality of the circumstances including public health, safety, welfare, convenience, and necessity, prior to approval. In order to approve a Provider Permit, the Board of Supervisors shall make all of the following findings:
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(3) The applicant's proposal demonstrates a community benefit through innovative service delivery, local reinvestment and reasonably assures an integrated public safety response to time sensitive EMS needs. . . . [Emphasis added.]
The Ordinance provided for the issuance of three types of permits: (1) emergency calls (911); (2) interfacility transports (IFT) from one licensed care facility to another, and special event standby; and (3) critical care transport (CCT), involving the transport of a critical care patient between medical facilities when the treating physician has determined transport requires medical supervision by advanced life support providers with critical care training or experience.
The term of each initial Permit issued pursuant to the Ordinance would be one (1) year and, upon renewal, each renewed permit would be valid for two (2) years. The Ordinance also requires EMS providers facilitating ambulance services to enter into distinct contracts with the County, separate from the LEMSA policies and procedures. It mandates County review of all EMS plans created by the LEMSA, prior to the LEMSA’s implementation of its own plan. It delegates supervisory capacity over the LEMSA and its medical director to the Board. County has not secured the State EMSA’s approval or ratification of Ordinance 5182, nor has it secured approval or ratification of the conversion from an RFP process to a permit process.
In a July 20, 2023 email thread, the LEMSA director advised the Public Health director of concerns, which included the creation of a proper Systems Status Plan, noting it is definitely more complicated with two providers. The LEMSA director noted that when he brought it up several meetings prior with the ACEO, she had said the LEMSA director “shouldn’t worry about multiple providers.” (Emphasis added.)
A July 21, 2023 email thread between the LEMSA director and the Public Health Director included continued discussions regarding EMS system re-design issues, including concerns regarding the creation of a Systems Status Plan. Public Health Director noted they did “not have the luxury of time for perfection.”
The deadline for submitting applications for EMS permits under Ordinance 5182 was set for August 10, 2023. On August 9, 2023, County Fire submitted an application to provide Type 1 (911 emergency ambulance responses), Type 2 (IFT), and Type 3 (CCT) ambulance services. On August 10, AMR submitted an application for a Type 1 ambulance permit. Both applications were evaluated by LEMSA, and both were found to meet Ordinance 5182’s minimum requirements. The applications were set for hearing before the Board on September 19, 2023, and LEMSA advised the Board that the Board would consider whether AMR and County Fire met the “additional criteria.”
After a hearing on September 19, 2023, the Board found that County Fire had satisfied the additional criteria of Ordinance 5182 (§ 5-7), and that AMR had not. It therefore approved the application of County Fire, and denied the application of AMR. The Board’s findings for the AMR denial stated:
Santa Barbara County Code, Chapter 5, Ambulances, Section 5-7. The Board of Supervisors has considered the totality of the circumstances including public health, safety, welfare, convenience, and necessity in making the following findings to deny American Medical Response’s application for Provider Permit Type – Emergency Medical Service Calls.
The required finding that cannot be made is addressed below:
Section 5-7(A)(3). The Board of Supervisors finds that American Medical Response’s proposal does not demonstrate a community benefit through innovative service delivery, local reinvestment and reasonably assures an integrated public safety response to time sensitive EMS needs.
AMR’s proposal lacks visibility and transparency with respect to key system components, including proposed deployment and system finances. Specifically, AMR’s proposal lacks sufficient detail regarding how AMR proposes to serve remote areas of the County, most notably the Cuyama Valley, while meeting LEMSA response time requirements. Additionally, AMR’s proposal demonstrates relatively few community benefits, such as a paramedicine program or an alternate destination program. It does not propose or demonstrate innovative improvements for promoting system integration, including integration with existing ALS/BLS resources. It also fails to demonstrate how it would integrate with the IFT and CCT permit providers to ensure a cohesive system.
The County’s denial of this permit application shall not prevent the Applicant from reapplying for Ambulance Provider Permit(s). [Emphasis is in original.]
On September 28, 2023, AMR filed a verified complaint for declaratory relief and petition for writ of administrative mandamus, naming as respondents/defendants the County, the Board, Public Health, and County Fire. It alleges causes of action for (1) declaratory relief under the Emergency Medical Services System and Prehospital Emergency Medical Care Personnel Act of 1980 (EMS Act), contending that Ordinance 5182 is unlawful and unenforceable, and has effectively conferred exclusivity in favor of County Fire without compliance with the statutorily required competitive process for doing so; (2) administrative mandamus review of the County’s process of awarding the permit, contending that the Board prejudicially abused its discretion by acting in excess of its jurisdiction, in exercising authority exclusively belonging to the LEMSA agency through its application of subjective criteria that resulted in the award of an exclusive area permit to County Fire without complying with the required competitive process (which AMR claims it won); and (3) declaratory relief, contending that the rate structure for ambulance transfers and related transfers which County Fire presented to County violates the provisions of California Constitution section XIII C, as amended in Proposition 26, which mandates that local governments may not impose fees to generate revenue beyond the cost of providing a municipal service, without government approval.
On October 27, 2023, AMR filed its motion for preliminary injunction (related to its first cause of action) and application for stay (related to its petition for writ of administrative mandamus).
Preliminary injunction: Contending that Ordinance 5182 conflicts with the EMS Act in (1) unlawfully reserving authority the EMS Act delegates exclusively to the County’s local emergency medical services agency, Public Health, and (2) illegally creating a process for choosing an exclusive Countywide ambulance provider outside of the state process set forth in the statutes, it seeks to enjoin County, Board, and Public Health from enforcing permit requirements under Ordinance 5182, including the requirement that permits to provide ambulance services be obtained. AMR specifies that it is not seeking to preclude Public Health from exercising any authority under the EMS Act, including the authority to authorize which provider(s) may provide ambulance service within the County, and the terms and conditions by which the provider(s) provide such service.
It essentially argues that Ordinance 5182 appears to have been written largely by County Fire, and while it ostensibly converted from an exclusive to non-exclusive ambulance model, it was drafted in a manner that gave the Board substantial discretion over which provider to select. Board exercised that discretion to pick County Fire and deny a permit to AMR, resulting in County Fire obtaining exclusive rights to provide EMS within the County—without having complied with the statutorily mandated competitive process for determining EMS providers in exclusive operating areas. It contends that the ordinance also permits the County’s political departments to make and enforce policies governing the local EMS system, which is statutorily required to be exercised by healthcare professionals with the LEMSA.
Request for stay: Contending that the Board prejudicially abused its discretion in making the permit decisions by acting in excess of its jurisdiction and failing to proceed in a manner required by law, AMR also seeks a stay of the Board’s September 19, 2023 decision under Ordinance 5182 approving County Fire’s permit, and a stay of the decision denying AMR’s application for permit.
Opposition: County, Board, Public Health, and County Fire have jointly opposed the motion’s requests for preliminary injunction and stay. Their opposition papers are supported by the declaration of Mark A. Hartwig, the Fire Chief/Fire Warden of the Santa Barbara County Fire Department, who articulated the “substantial efforts” being made to prepare County Fire to take over providing EMS on March 1, 2024, including County Fire’s development, with use of a consultant, of the EMS Ambulance Transportation Implementation Plan, its four phases, and the efforts that have or will take place during each phase. Chief Hartwig declares that County Fire has a daily countdown to the go live date, and has plans for and will be busy for each day until the go live date, and any delays will result in County Fire being unable to go live on March 1. He declares that County Fire has spent millions of dollars, including ordering and paying for 35 new ambulances. He further declares:
“15. If the County is forced into a multiple-provider situation, the harm to the public will be severe. Without enough transports (which generate revenue) and without coordination,
there will be insufficient revenue to support multiple providers. Private providers may stop providing services in some areas, and public providers will be forced to seek additional revenue to supplement the system to avoid abandoning the community. It will be inequitable, unsafe and unsustainable. Permit applications from both County Fire and AMR articulate concern regarding insufficient revenue to support more than one provider per permit type.
“16. Unlike an exclusive operating area system, the permit system developed by Santa Barbara County has certain inherent advantages. Since there are no long, exclusive periods without potential competition, the permit-based system allows for and encourages change, innovation and evolution, both in the County system and in the individual providers.”
[The Court notes that Chief Hartwig’s March 31, 2023, letter to the Board (discussed above) had represented that a non-exclusive two-provider system was financially feasible and would improve service countywide.]
County’s opposition papers are also supported by the declaration of Nick Clay, the LEMSA director. He articulated the permitting process undertaken by County pursuant to the ordinance. He declares that an injunction without contracted ambulance providers puts the EMS system’s stability at risk, and articulates a list of harms he believes could occur if the injunction is granted and the AMR contract expires without the permit process to replace it. [See discussion at Section II.C.1.b., infra.]
Amicus Curiae: On November 22, 2023, the California Emergency Medical Services Authority (EMSA) submitted an application for leave to file amicus brief, an Amicus Curiae Brief, and a Request for Judicial Notice.
Because of the large amount of material it needed to research, evaluate, and analyze in order to resolve the motion, the Court continued the hearing on the injunction motion from December 1, 2023 to December 8, 2023. In preparing for the December 8 hearing, the Court had fully considered the amicus brief submitted by the EMSA, and fully intended to permit leave for its filing.
Thereafter, after hours on December 5, 2023, only three days before the continued hearing the Fire Chiefs Association of Santa Barbara County (FCA) submitted its own application for leave to file an amicus brief, its Amicus Curiae Brief, and a request for judicial notice.
Because both amicus briefs raised issues of substantial importance to the resolution of this motion, and because there remained insufficient time to review and analyze the submissions made by the FAC prior to the scheduled December 8 hearing, the Court made the difficult decision to once again continue the injunction hearing, and provide an opportunity for response to the briefs. Both County and AMR took advantage of that opportunity, and filed briefs responding to the arguments raised by Amicus Curiae.
Court Note: The substance of the arguments presented by the parties and in the Amicus Curiae Briefs will be discussed more fully in the portions of the analysis to which they relate.
ANALYSIS: After careful consideration of the arguments, evidence, and authorities presented by the parties, as well as the Amicus Curiae briefs submitted by EMSA and by FCA, upon the Court’s own independent research and analysis of the relevant authorities, and upon evaluation of AMR’s likelihood of prevailing on the merits of its claims, the interim harms which would be suffered by AMR should the injunction be denied, the interim harms which would be suffered by County should the injunction be issued, and the public interest, the Court has made the difficult decision that it is necessary and appropriate to issue a preliminary injunction in this action. The nature, scope, and terms of the preliminary injunction are articulated below.
The Court fully recognizes that time is of the essence in this case, and in order to minimize the harms to be suffered by all parties to the extent practicable, it will bifurcate the third cause of action from the first and second causes of action, and reserve the third cause of action for later determination. With respect to the first and second causes of action, the Court intends to expedite the resolution of those claims, and will at this time set the date for trial of the declaratory relief cause of action, and the date for hearing on the petition for writ of mandate, for July 16, 2024.
As more fully articulated below, the Court will specially set a Case Management Conference for 3:00 p.m. on Friday, January 5, 2024. Prior to that date, the parties are ordered to meet and confer, and to determine a schedule for expedited briefing of the petition for writ of mandate, and expedited discovery (if in fact any is necessary) relative to the declaratory relief cause of action. The parties may stipulate to have the declaratory relief cause of action determined on papers; if they do not do so, the court trial on that cause of action will commence at 8:30 a.m. on July 16, 2024, and will proceed thereafter until completed.
I. Requests for judicial notice.
County seeks judicial notice of : (1) Board Agenda Letter dated September 23, 2023 [Ex. B]; (2) County Fire’s permit application [Exs. C-1 and C-2]; (3) AMR’s permit application [Ex. D]; (4) Permit Officer’s assessment of County Fire’s minimum qualifications [Ex. E]; (5) Permit Officer’s assessment of AMR’s minimum qualifications [Ex. F]; (6) County Fire’s Additional Criteria submission [Ex. G]; (7) AMR’s Additional Criteria submission; (8) Board meeting public comment by Valerie Aroyan [Ex. I]; (9) Board meeting public comment by Santa Barbara Cottage Hospital [Ex. J]; (10) Board meeting public comment by John O. Anis, Medical Director of Emergency Department at SBCH [Ex. K]; (11) County Public Health Department presentation [Ex. L]; (12) County Fire presentation [Ex. M]; (13) AMR presentation [Ex. N]; (14) Board Findings for County Fire [Ex. O]; (15) Board Findings for AMR [Ex. P]; (16) Public comment speakers at Board’s September 19, 2923 hearing [Ex. Q]; (17) Board Minute Order dated September 19, 2023 [Ex. R]; and (18) Ordinances from other California counties pertaining to ambulance permitting [Ex. A] (including ordinances from the counties of Alameda, Contra Costa, Fresno, Humboldt, Lake, Los Angeles, Madera, Marin, Orange, Riverside, San Bernardino, Santa Clara, San Diego, San Joaquin, San Luis Obispo, and Tulare).
In conjunction with its Amicus Curiae Brief, the EMSA requested judicial notice of: (1) the Action Summary for the Board’s September 19, 2023 meeting; and (2) a PowerPoint presentation made by Public Health pertaining to ambulance permit applications, presented to the Board at the September 19, 2023 meeting.
In conjunction with its Amicus Curiae Brief, the FCA seek judicial notice of a series of Legislative History documents, related to the adoption and amendment of the EMS Act.
Judicial notice is the court’s recognition of the existence of a matter of law or fact without the necessity of formal proof. (Evid. Code, § 450, et seq.) As with evidence generally, the matter to be judicially noticed must be relevant to the issues in the case. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The documents for which judicial notice is requested are all documents that are appropriate for judicial notice.
County has objected to AMR’s request for judicial notice, with respect to Exhibits 2-7, not because they are inappropriate for judicial notice, but based upon the contention that the records are not relevant to matters before the Court, would necessitate undue consumption of time, and would crate substantial danger of under prejudice or of confusing the issues. Under County’s interpretation of the facts and law, this may certainly be true. However, in the context of the entire dispute currently before the Court, the Court disagrees with County’s contentions, and will overrule County’s objections. The documents relate to County’s abrupt cancellation of the competitive RFP process it had been long pursuing under the terms of Health & Safety Code section 1797.224, and are therefore highly relevant to the contentions made by AMR in its first cause of action for declaratory relief. They also provide relevant background information for the petition as a whole.
The Court will take judicial notice of all documents of which such notice has been properly requested.
II. Motion for preliminary injunction.
A. Standards for imposing a preliminary injunction.
The purpose of the preliminary injunction is to preserve the status quo until a final determination of the merits of the action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) The burden is on the plaintiff to show that it is entitled to the relief sought. (Id. at p. 838.)
The grant or denial of an injunction does not amount to an adjudication of the ultimate rights in a controversy, and merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, exercise of the right claimed by the defendant should or should not be restrained. (Jamison v. Department of Transportation (2016) 4 Cal.App.5th 356, 361.)
The showing of potential harm that a plaintiff must make in support of a request for preliminary injunctive relief may be expressed in various ways, such as the inadequacy of legal remedies or the threat of irreparable injuries. (Tahoe Keys Property Owners’ Association v. State Water Resources Control Board (1994) 23 Cal.App.4th 1459, 1471. (“Tahoe Keys”)) In general, if the plaintiff may be fully compensated by the payment of damages in the event he prevails, then preliminary injunctive relief should be denied. (Ibid.) This is true even if damages are difficult to calculate with precision. (Voorhies v. Greene (1983) 139 Cal.App.3d 989, 997.) In balancing the hardships, the potential public loss of life will normally outweigh the potential financial loss to a plaintiff. (Barenfeld v. City of Los Angeles (1984) 162 Cal.App.3d 1035, 1042.)
Injunctive relief may be granted against public defendants when they involve the illegal enforcement of ordinances. (Novar Corp. v. Bureau of Collection & Investigative Services (1984) 160 Cal.App.3d. 1, 6.) When a plaintiff seeks to enjoin a pubic agency in the performance of their duties, public policy considerations come into play. There is a general rule against enjoining public officers or agencies from performing their duties. (Tahoe Keys, supra.) The rule does not preclude a court from enjoining unconstitutional or void acts, but in making such a request, a plaintiff must make a significant showing of irreparable injury. (Ibid.) Further, the plaintiff must demonstrate that the requested injunction would not be contrary to the public interest. (Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588.)
B. Likelihood of prevailing on the merits.
1. Emergency Medical Services System and Prehospital Emergency Medical Care Personnel Act of 1980
The role of the state and its subdivisions in controlling emergency medical services are governed by the Emergency Medical Services Systems and the Prehospital Emergency Medical Care Personnel Act (EMS Act). (Valley Medical Transport, Inc. v. Apple Valley Fire Protection District (1998) 17 Cal.4th 747, 750 (Valley Medical); Health & Saf. Code, § 1797 et seq. [NOTE: Unless otherwise specified, all further statutory references are to the Health & Safety Code].) The EMS Act was enacted to provide the state with a statewide system for emergency medical services, and to ensure the provision of effective and efficient emergency medical care to the people of California. (County of Butte v. Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, 1181 (County of Butte).)
The EMS Act creates a comprehensive system governing virtually every aspect of prehospital emergency medical services, and creates a two-tiered system of regulation, consisting of the state Emergency Medical Services Authority (EMSA), a division of the Health and Welfare Agency, (which performs function relating to the coordination of EMS throughout the state) and an EMS agency established by a county or joint powers agency which plans, implements, and evaluates emergency medical service systems on a countywide or multicounty basis, and which maintains the medical control and management of an emergency medical services system. (Valley Medical, supra, 17 Cal.4th at p. 754, citing County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 915, 916 (San Bernardino); § 1797.102, et seq.) The statutes and regulations broadly mandate that the LEMSA agency formulate medically related policies and procedures to govern EMS providers. (Valley Medical, supra.)
The EMS Act sets forth the duties of the LEMSA, which oversees the second tier of governance, in Sections 1797.200-1797.276. Pursuant to Section 1797.200, each county developing an emergency medical services program shall designate a LEMSA, and sets forth which types of agencies can be the LEMSA, which includes a county health department. A county may not designate more than one agency to share the statutory powers of a LEMSA. (County of Butte, supra, 187 Cal.App.4th 1175, 1182.) Under Section 1797.202(a), every LEMSA must have a full- or part-time licensed physician and surgeon as medical director, who has substantial experience in the practice of emergency medicine, as designated by the county (or by a joint powers agreement) to provide medical control and to assure medical accountability throughout the planning, implementation, and evaluation of the EMS system. Under Section 1797.204, the LEMSA shall plan, implement, and evaluate an emergency medical services system in accordance with the statutory provisions. Under Section 1797.220, the LEMSA, using state minimum standards, must establish policies and procedures approved by the medical director to assure medical control of the EMS system. Once a LEMSA implements its system, all providers of prehospital emergency medical services within its jurisdiction must operate within that system. (§ 1797.178.) Further, the EMS Act preempts conflicting local ordinances and regulations. (San Bernardino, supra, 15 Cal.4th at p. 922.)
The EMS Act was amended in 1984 to authorize LEMSAs to grant exclusive operating areas (EOAs) to private EMS providers such as ambulance companies. (§ 1797.224.) An EOA is defined as an EMS area for which a LEMSA, upon the recommendation of a county, restricts operations to one or more emergency ambulance services. (§ 1979.85.) In enacting Sections 1797.85 and 1797.224, the Legislature intended to prescribe and exercise the degree of state direction and supervision over emergency medical services that would provide for state action immunity under federal antitrust laws for activities undertaken by local government entities in carrying out their prescribed functions. (§ 1797.6.)
The Legislature recognized that creating an EOA is an important administrative tool for designing an EMS system, since doing so allows the agencies to plan and implement EMS systems that will meet the needs of their constituencies and at the same time ensure that the EMS providers with which they contract have a territory sufficiently populated to make the provision of these services economically viable. (San Bernardino, supra, 15 Cal.4th at p. 931.) An EOA permits LEMSAs to offer private emergency service providers protection from competition in profitable, populous areas in exchange for the obligation to serve unprofitable, more sparsely populated areas. (Valley Medical, supra, 17 Cal.4th at p. 759.) Regulation of the right to provide services in a given geographical area therefore can promote the public’s access to emergency medical transportation services. (Memorial Hospitals Association v. Randol (1995) 38 Cal.App.4th 1300, 1308 (Randol).)
The only legally permissible way for a California county to adopt an exclusive arrangement for EMS services, without risking violation of the Sherman Antitrust Act, is through compliance with Section 1797.224. This is because exclusive contracts for local public services otherwise operate as illegal restraints on trade, except where anticompetitive conduct at the local level is authorized by a state law pursuant to clearly articulated and affirmatively expressed state policy. (Community Communications Co., Inc. v. City of Boulder (1982) 455 U.S. 40, 52; Parker v. Brown (1943) 317 U.S. 341, 350-351.) In enacting Section 1797.224, the Legislature expressed a state policy authorizing localities to create EOAs for emergency services, on condition that such agreements be reviewed and approved at the state level. (See County of Butte, supra.)
Section 1797.201 provides, in relevant part:
Upon the request of a city or fire district that contracted for or provided, as of June 1, 1980, prehospital emergency medical services, a county shall enter into a written agreement with the city or fire district regarding the provision of prehospital emergency medical services for that city or fire district. Until such time that an agreement is reached, prehospital emergency medical services shall be continued at not less than the existing level, and the administration of prehospital EMS by cities and fire districts presently providing such services shall be retained by those cities and fire districts, except the level of prehospital EMS may be reduced where the city council, or the governing body of a fire district, pursuant to a public hearing, determines that the reduction is necessary. [Emphasis added.]
Section 1797.230 provides, in relevant parts:
(a)(1) A county may contract for emergency ambulance services with a fire agency that will provide those services, in whole or in part, through a written subcontract with a private ambulance service.
(2) This subdivision is declaratory of existing law regarding a county's powers and authority to contract for emergency ambulance services.
(b) For purposes of this section, “fire agency” means a fire protection district. . . .
(c) On and after January 1, 2022, a county shall not enter into or renew a contract for emergency ambulance services unless the county board of supervisors has adopted, by ordinance or resolution, a written policy setting forth issues to be considered for inclusion in the county contract for emergency ambulance services, which may include, but are not limited to, all of the following:
(1) Employment retention requirements for the employees of the incumbent ambulance service.
(2) Demonstrated experience serving similar populations and geographic areas.
(3) Diversity and equity efforts addressing the unique needs of vulnerable and underserved populations of the service area.
(4) Financial requirements, including requiring a private ambulance service provider to show proof of insurance and bonding.
(5) A description of the ambulance service provider's public information and education activities and community involvement.
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(e) The requirements of this section are within the exclusive jurisdiction of the county’s board of supervisors.
(f) This section shall not supersede Section 1797.201 and shall not alter, modify, abridge, diminish, or enlarge the requirements for creating, establishing, or maintaining an exclusive operating area under Section 1797.224. [Emphasis added.]
2. Government Code sections 54980-54981.
Section 54981 provides that “[t]he legislative body of any local agency may contract with any other local agency for the performance of the latter of municipal services or functions within the territory of the former.”
3. Party arguments and contentions.
AMR argues that it is likely to prove that County’s new ambulance permit system under Ordinance 5182 usurps the LEMSA’s authority and confers an exclusive operating area outside of state supervision. It asserts that its first cause of action is seeking declarations that (1) through Ordinance 5182, the Board has unlawfully reserved authority over EMS matters that only the LEMSA may regulate, and (2) Ordinance 5182 creates an unauthorized process for conferring ambulance exclusivity. [The Court notes that the complaint does not clearly articulate these issues as those for which declarations are sought; however, the adjudications articulated in the motion for preliminary injunction appear to be consistent with the allegations set forth in AMR’s first cause of action, and serve as an adequate basis for evaluation of the propriety of the issuance of a preliminary injunction.]
AMR contends the first adjudication can be decided through application of County of Butte v. Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, in which a county elected to join a joint powers authority with other counties as a LEMSA, but reserved for itself the power to create EOAs. The court held the system conflicted with the EMS Act and was invalid, finding that there could only be one LEMSA under Section 1797.200, and when the county designated its LEMSA, it delegated all of its EMS Act authority to the local agency. AMR asserts that, in designating Public Health as the LEMSA, County vested all authority over EMS regulatory matters in Public Health. It notes the legislative intent of the EMS Act was to ensure health care professionals would be responsible for local EMS planning and administration. (Memorial Hospitals Association v. Randol (1995) 38 Cal.App.4th 1300, 1314.) Under supervision of their medical directors, they assert medical control over all aspects of local EMS systems (§§ 1797.218, 1797.220, 1798, subd. (a)), are exclusively responsible for setting and implementing EMS standards for their systems, and that responsibility cannot be shared with political bodies.
AMR then asserts that, in reserving the power to determine whether to issue permits, assigning the EMS director only an advisory role in permit issuance, and reserving the authority to review local EMS plans, Board has usurped the duties of the LEMSA. The ordinance also empowered the Board to supervise (and influence, compel, or overrule) the LEMSA officials’ conduct. AMR contends the EMS Act forbids elected officials from holding veto power over the local officials.
AMR contends with respect to the second requested adjudication (that Ordinance 5182 creates an unauthorized process for conferring ambulance exclusivity), that Section 1797.224 is clear that exclusive ambulance service is authorized only if an exclusive operator qualifies as a “grandfathered” provider, or is selected after a “competitive process.” For either type of exclusivity, it requires state EMSA approval of the local plan’s declaration that an area is exclusive. That Ordinance 5182 would permit multiple ambulance operators does not mean it has converted to a non-exclusive system. In vesting the Board with broad discretion to approve or deny permits based upon open-ended criteria such as “public health, safety, and welfare,” and “community benefit,” which permit EMS decisions to be made for political reasons unrelated to the applicant’s ability to meet technical, clinical, or performance-related standards, and allowing a qualified ambulance provider to be denied a permit for reasons within the discretion of elected officials (and not medical professionals), the Ordinance’s permit system is not actually non-exclusive.
AMR further contends that because of the antitrust issues that underlie the State’s process for conferring exclusivity, the Ordinance’s manner of permitting is unlawful under Community Communications Co., Inc. v. City of Boulder, Colorado (1982) 455 U.S. 40, 58, under which exclusive contracts for local public services are illegal restraints on trade in violation of the Sherman Antitrust Act, unless such anti-competitive conduct is authorized by state law, clearly articulating and expressing state policy. Consistent with Boulder, if an agency retains any discretion to determine which providers receive permits, its permitting system is an exclusive one and not within any clearly-articulated California policy. AMR contends this means that a permit system may be considered non-exclusive only when an agency’s review is ministerial, and confined to a determination whether the applicant satisfies state EMS and LEMSA policies, which is not the type of system the Ordinance enacts.
b. County defendants’ opposition.
County defendants argue that the Court need not consider AMR’s likelihood of success on the merits, based upon their contentions that AMR has not show irreparable harm and the public interest requires denial of the injunction. (The Court will discuss the irreparable harm and public interest arguments more fully below in Sections II.C.1.b and II.D, respectively.) Notwithstanding this contention, County defendants address the issue, and conclude that AMR cannot meet its burden of establishing that it is likely to prevail on the merits, for two reasons: (1) the permitting process complies with state law, and (2) the County is protected from antitrust law by Parker immunity.
i. Compliance with state law.
In contending that its permitting process complies with state law, County asserts that “permit EMS are lawful and ubiquitous,” pointing to the ordinances of other California counties (of which judicial notice is requested). County asserts that AMR’s contention that the ordinance is illegal because it gives to the Board authority which belongs to the LEMSA, is wrong for three reasons:
(1) County is entering into a contract with a fire district for ambulances, and the Government Code expressly authorizes the legislative body of any locality to contract with any other local agency for municipal services, including firefighting, police and ambulance, citing Government Code sections 54980-54981.
(2) The case law AMR cites does not apply here. Both County of Butte and Randol read the language of Section 1797.224 to mean that only a LEMSA can create an EOA, but Ordinance 5182 does not create an EOA, and creation of EOAs under Section 1797.224 is not the only way to regulate an EMS system. An EMS may have grandfathered providers through 1797.201, may have nonexclusive zones, and may have agreements with fire agencies that subcontract services through Section 1797.230—of those three, only the creation of EOAs is specifically delegated to the LEMSA.
(3) A major change to the EMS Act was enacted after AMR’s cases were decided, the concentrated more EMS authority in Boards. Section 1797.230 places its requirements within the exclusive jurisdiction of the county’s board of supervisors. Section 1797.230 requires boards to participate in the EMS contracting process, directing that a county not enter into or renew an EMS contract unless the Board has adopted an ordinance setting forth its policy priorities. (§ 1797.230, subd. (c).) The Board did so here in Section 5-7 of the ordinance, in requiring community benefit through innovative service delivery, local reinvestment, and integrated public safety response. Section 1797.230 acknowledged that a county, and not a LEMSA, may contract with a fire agency to provide EMS in whole or in part through a subcontractor, and notes that this is declaratory of existing law, which indicates the county already had authority to contract with an EMS provider—even one with an unusual subcontracting arrangement.
County also contends that even if AMR is correct about the EMS Act, it has not exhausted the available state administrative process, under which the LEMSA annually submits a plan, which must be approved by the EMS upon consideration of each ambulance zone, a denial of which may be appealed, with the EMS Commission making the final decision. It contends the Court cannot weigh in on the ordinance before the EMSA has analyzed it. Since many counties have had permit ordinances, it is unlikely the State would take issue with Ordinance 5182.
ii. County protection from antitrust law.
While AMR contends the Ordinance illegally creates a process for choosing an exclusive provider, outside of the process set forth in Sections 1797.6, 1797.85, and 1797.224, County argues that Ordinance 5182 creates a non-exclusive system, and County has not sought to create an EOA. AMR’s contention that anticompetitive results are only permissible under antitrust law if the county acts pursuant to Section 1797.224 is incorrect, since a County acting pursuant to the EMS Act broadly enjoys Parker immunity and does not violate antitrust law.
States are immune from antitrust law as sovereigns. (Parker v. Brown (1943) 317 U.S. 341.) Counties are not sovereigns, but are immune when acting pursuant to a clearly articulated state policy. (city of Columbia v. Omni Outdoor Advert., Inc. (1991) 499 U.S. 365.) State legislatures do not have to “expressly state” intention to displace competition, or expressly mention anticompetitive conduct. (FTC v. Phoebe Putney Health Sys., Inc. (2013) 568 U.S. 216, 226.) It is sufficient that anticompetitive effect be a foreseeable result of the statute, which is present when the anticompetitive effect is the inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature. (Id. at p. 229.) The EMS Act’s authorization for counties to contract for paramedic services, and to regulate who can provide them, has a foreseeably anti-competitive effect which excludes potential providers. (Mercy-Peninsula Ambulance, Inc. v. San Mateo County (9th Cir. 1986) 791 F.2d 755, 758.) The Mercy-Peninsula court stated that “[v]irtually any anti-competitive effect, including exclusive contracts with primary providers and elimination of backup ambulance services altogether, would appear to e well within the statute’s contemplation. Therefore the Court should find that anticompetitive effect is a foreseeable result of the broad authority the EMS Act gives to counties to regulate EMS. Also, multiple statues specifically authorize Boards to contract for EMS. (§ 1797.230; Gov. Code, §§ 54981, 54980.) The articulations of state policy in the statutes confers Parker immunity.
AMR argues that the Boulder decision means if an agency retains any discretion to determine which providers receive permits, the permitting process is an exclusive one, and is not within the clearly articulated California policy—essentially an argument that a permit system is only proper if the agency’s review is ministerial. County contends that is not the law. The state delegation in Boulder was general, and did not provide a clear articulation and affirmative expression of its intention to displace competition. Here, the EMS Act authorizes contracting with an EMS provider and regulating EMS, which foreseeably has anticompetitive effects.
County contends that even if it is wrong about this, Parker immunity still attaches, since courts only consider the state’s intent, and a municipality acting outside of its delegated authority—such as when the nature of its regulation is substantively or procedurally defective—is still protected. (City of Columbia v. Omni Outdoor Advert., Inc. (1991) 499 U.S. 365, 371.)
i. Opposition arguments confirm intent to preserve exclusive ambulance system through a process other than that set forth in the EMS Act.
AMR contends that County’s opposition actually supports AMR’s case, in showing its intention to make County Fire its exclusive ambulance provider, in spite of a supposedly “open” system. It took great pains to detail how the differences between the AMR and County Fire permit applications affected the Board’s permit decisions, detailing how it determined County Fire’s application was “better.” While County emphasized that AMR’s application included a 350-word description of “community benefit,” and County Fire had nine pages, it confirms that County has perpetuated exclusivity by allowing the Board (which is County Fire’s governing board) to pick which applicant it likes best. Ordinance 5182 never defines “community benefit,” but AMR’s application was found lacking on that issue. AMR concludes that, in allowing ambulance permit decisions to be based on such considerations, Ordinance 5182 does not enact an open system, but rather enables to board to choose the “better” application based upon vague criteria, creating an exclusive system in its effect, contrary to the requirements of Section 1797.224.
ii. County’s disregard of precedent
AMR contends County gave short shrift to County of Butte, contending it only addressed a board’s reservation of authority over exclusive operating areas, but it in fact comprehensively examined the text and legislative intent of the EMS Act and concluded “bifurcated” local EMS systems are prohibited, in that a county can only designate one LEMSA, and two local agencies cannot share the statutory powers and duties under the act. Designation of a local EMS agency not only deprives a county from exercising authority over EOAs, but also from any of the statutory powers and duties vested in the LEMSA. A board cannot exercise any authority over “medical control” of the LEMSA, covering dispatch, patient destination policies, patient care guidelines, and quality assurance requirements (§ 1797.220) and matters affecting the speed and effectiveness of the response to medical emergencies. (County of San Bernardino, supra, 15 Cal.4th at p. 927.) Boards may not exercise authority that would impinge on LEMSA duties to plan, implement, or evaluate the local EMS system, or implement policies for first responder or ambulance advanced life support (§§ 1797.204, 1797.206, 1797.218), which are entrusted to health care professionals. (Memorial Hospitals Association v. Randol (1995) 38 Cal.App.4th 1300, 1314.)
iii. Permit ordinances from other counties.
County has sought judicial notice of ambulance permit ordinances adopted by other counties, contending that many do what Ordinance 5182 did, and task the Board with deciding on the permits. However, none of them do anything of the kind. Many of the ordinances predate County of Butte, and many limit Board’s responsibility to issuing permits to health officials or permit officers (Los Angeles, Contra Costa, Riverside, Santa Clara). Some only allow Boards to exercise appellate authority (Alameda, Orange). In the few which provide the Board with a broader role, it is usually to review staff recommendations or determine compliance with defined standards (Fresno, Humboldt, Marin). County does not identify any which allow Board to exercise permit approval authority in an open system to pick one provider over another. It does not request judicial notice of the ordinances of the two counties which have litigated the LEMSA issues (Butte, Merced). The Butte County ordinance was comprehensively amended to conform to the County of Butte decision, now drawing clear lines of authority between the Board and the LEMSA, not permitting the Board authority to grant or deny an ambulance permit and instead requiring ambulance operators to secure LEMSA approval. The Merced County ordinance requires providers to enter into an agreement with the LEMSA, not the Board.
AMR concludes that it does not dispute the right of counties to regulate the business of ambulance service through licensing or permitting ordinances, but rather challenges County’s wholesale rewriting of its ordinance to allow the Board to avoid using a competitive process, usurp LEMSA authority, and pick the “better” provider in an ostensibly open system.
iv. Government Code sections 54980-54981.
If County’s interpretation of these sections were correct, it should never have undertaken the three-year competitive RFP process, or completely rewritten its ambulance ordinance, and could simply have let the AMR contract expire and contract with County Fire. Further, nothing the sections permits County to contract for an exclusive EMS provider, which can only be accomplished through specific provisions of the EMS Act. In interpreting statutes, courts must give legislative text a common-sense interpretation, with a view toward promoting, and not defeating, the Legislature’s intentions. (Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 1384-1385.) It is presumed to be aware of existing statutes when it enacts or amends other statutes. (People v. Overstreet (1986) 42 Cal.3d 891, 897.) Should there be ambiguity, the later-enacted and more specific provisions of the EMS Act would prevail over the earlier-enacted and more general provisions of the Government Code. (See Civ. Code, § 23.3; see also Peter v. Board of Supervisors of Kern County (1947) 78 Cal.App.2d 515, 519.)
v. Section 1797.230.
Section 1797.230, relied on by County, expressly applies to circumstances where a fire protect district subcontracts with a private ambulance provider to provide some or all of the ambulance services, i.e., an “alliance model.” County has not entered into an “alliance model” contract with County Fire; under Ordinance 5182, County Fire will itself provide ambulance services, and will not subcontract with a private provider. The Section 1797.230(c) factors on which County relies are not applicable to the Ordinance 5182 arrangement. Even if those factors were to apply, they only address economic, equity, social, and community outreach policies that must be addressed whenever counties contract for ambulance service, and none of its language indicates any intent to supplant the broad authority the EMS Act confers on LEMSAs. (See §§ 1797.204, 1797.206, 1797.208, 1797.210, 1797.212, 1797.218, 1797.220, 1797.225.) Section 1797.230 also does not overrule County of Butte, and expressly confirms it does “not alter, modify, abridge, diminish, or enlarge the requirements for creating, establishing, or maintaining an exclusive operating area under Section 1797.224.” (§ 1797.239, subd. (f).)
vi. Boulder.
In arguing that antitrust concerns are misplaced, and that it faces no antitrust liability for Ordinance 5182, County has misread AMR’s discussion of Boulder. AMR discussed Boulder in explaining the importance the Legislature attributed to the decision in enacting the statutes governing exclusive operating areas. (§ 1797.6.) The Legislature’s reference to Boulder in Section 1797.6(a) suggests it intended to preclude counties from exercising discretion in selecting ambulance providers outside of the process for creating exclusive operating areas. (See Schaefer’s Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 587 [county police power does not confer authority to grant ambulance exclusivity].) Thus, a conversion to an open system must create an actual open system. County’s current system, under which it picks and chooses, invites the selection of one applicant over others—a back-door process for creating EOAs.
In its Amicus brief, the EMSA took no position with respect to certain of the factual claims made by AMR, nor did it address the propriety of the issuance of an injunction in this case. Rather, it provided input regarding its interpretation of the EMS Act (relevant to AMR’s first cause of action for declaratory relief, which underlies its motion for preliminary injunction), to provide a state-level assessment of the significant issues in the case.
It asserts that AMR’s allegation that County cancelled a competitive bidding process for emergency ambulance services and instituted a discretionary permitting system in order to ensure that County Fire would be awarded an exclusive right to provide emergency ambulance services countywide is a matter of substantial importance to EMSA since, if true, those allegations raise concerns that the EMS Act’s intended design and patient protections may be undermined. The allegations show near-unilateral Board authority to make EMS policy without input or recommendation from local designated EMS professionals, as required by the Act. Further, in awarding a single permit, County may have created a de facto monopoly without the strict oversight and approval by EMSA that would otherwise be required by law to ensure services are equitable and of high quality.
EMSA first sets forth the history and relevant terms of the EMS Act. It then discusses Ordinance 5182, under which no provider may operate emergency transportation services without a permit, and which purports to establish a “non-exclusive system” for issuance of permits in which multiple providers can request and obtain permits. The ordinance states that no operating area established by the Board following issuance of a permit is to be designated an EOA for purposes of the LEMSA’s local EMS plan. An applicant must first submit an application to the LEMSA director, and the LEMSA conducts an initial evaluation and provides an assessment to the Board. The application must satisfy a list of minimum qualifications. If they are met, the ordinance requires the Board to consider “additional permit criteria” as part of a “totality of the circumstances” analysis, and must make findings as to the provider’s experience, fitness, and economic viability, as well as the “community benefit through innovative service delivery [and] local reinvestment” associated with the provider’s proposal. Based on that totality of the circumstances review, the Bord determines whether to approve or deny the permit.
First, EMSA asserts that County’s application of its permitting regime potentially undermines the purposes of the EMS Act. The Ordinance has resulted in a single provider having a de facto monopoly on emergency ambulance services in Santa Barbara County. AMR alleges this was intentional, and to the extent AMR is able to prove its factual allegations, County’s conduct in cancelling the competitive process and exercising unilateral discretion to award a single permit to its own fire department raises serious concerns.
EMSA asserts that County may have violated the EMS Act by exercising unilateral authority to make substantive local EMS policy without input or recommendations from the LEMSA. The LEMSA plays a leading role in local EMS policy. EMSA believes AMR’s understanding of the EMS Act’s restraints (that once a county designates a LEMSA, only the LEMSA is permitted to administer and adopt local EMS policy) goes too far. Under the EMS Act, local officials, including a Board, play an important oversight role in administration of emergency services, which can include final approval over a LEMSA’s recommendation with respect to provider agreement, particularly where the LEMSA is a county health department under the board’s control. Nothing in the act indicates a Legislative intent for county-controlled LEMSAs to operate in a manner divorced from ordinary control exercised by a county.
However, the EMS Act mandates that the LEMSA play a leading role in local EMS activity, in planning, implementing, and evaluating an EMS system (§ 1797.204), developing a formal plan consistent with state-level guidelines and regulation and submitting it to EMSA for approval (§§ 1797.250, 1797.254), and coordinating and facilitating arrangements necessary to develop the EMS system (§ 1797.252). This evidences clear legislative intent that substantive local EMS policy be developed and proposed through the LEMSA’s medical expertise; LEMSAs must have medical directors who are licensed medical doctors with experience in emergency medicine. Therefore, although counties may exercise ultimate approval or disapproval over aspects of a local EMS plan, the LEMSA—and not the Board—must develop, facilitate, and recommend local policy for approval.
Documentation attached to the complaint and available publicly appears to support AMR’s contention that Board used its application of the “additional permit criteria” to exercise sole authority to evaluate permit applications and solely decide who may operate emergency transportation services. Materials associated with the September 19, 2023 Board meeting at which permit decisions were made indicate that LEMSA only certified that both applications met minimum requirements, and made no report or recommendations on an evaluation of the additional permit criteria. It therefore appears that Board’s decisions concerning the “additional permit criteria” lacked required LEMSA input.
Significantly, EMSA notes that Ordinance 5182 appears to be unique in the EMS field; EMSA has not encountered any similar local regulation that empowers a board to exercise authority to evaluate specific subjective criteria and independently select EMS providers permitted to operate within the county. Local permitting regulations are normally purely ministerial, setting forth objective qualifications which, if met, entitle an operator to provide emergency services. Here, Board is permitted to exercise unilateral authority under subjective criteria to make local substantive EMS policy without LEMSA input or evaluation. If the allegations are true, this runs contrary to the intended design of the EMS Act.
EMSA asserts further that the existence of other entities with some governing authority for local EMS does not displace the LEMSA’s role in the EMS Act’s structure. County argues that creation of EOAs under Section 1797.224 is not the only way to regulate a system, and the act authorizes other means to administer an EMS system that do not require LEMSA oversight, such as through grandfathering (§ 1797.201) or by means of agreements with fire agencies under Section 1797.230. EMSA asserts that neither of these carve-outs call into question the broad command that the LEMSA be the main engine of local EMS analysis and policy. The statutes make clear that existing EMS models allowed to continue pursuant to Section 1797.201 must eventually be integrated in to the EMS Act’s structure, and that section in no way undermines the Act’s mandate that the LEMSA play a leading role in local EMS policy and ensuring coordination within the local EMS system. County’s reliance on Section 1797.230 also fails, in that while it vests boards with jurisdiction to set requirements concerning operational and economic topics like experience, wages, and staffing levels, it cannot be read to sanction a unilateral exercise of contracting authority on “additional permit criteria” without analysis or input by LEMSA medical professionals.
Second, EMSA asserts that County’s exercise of authority under the ordinance raises concerns about creation of an EOA without the statutorily required state-level oversight and approval. The circumstances of its cancellation of the competitive process, and subsequent permitting decisions, raise serious concerns about an undermining of the EMS Acts requirement for EMSA review and approval of EOAs. EMSA takes no position on AMR’s contention that the ordinance was intended to confer an EOA on County Fire, but if it proves the factual basis for its claim, County’s actions appear to side-step the Act-mandated oversight, weakening the act’s protections.
Section 1797.224 governs how local authorities may establish an EOA, limiting it to a competitive bid process, or an existing grandfathered EOA. Either way, the proposed EOA must be submitted to EMSA for approval as part of the local EMS plan. (§§ 1797.224, 1797.254.) When created by competitive bidding, that process includes a state-level review of both the selection procedure and the scope of the exclusive operations awarded. (§ 1797.224.) EMSA is empowered to reject all or part of a local EMS plan, including an EOA, if it determines the plan does not effectively meet the needs of the persons served, is not consistent with coordinating activities in the geographical area service, or is not concordant and consistent with applicable guidelines or regulations established by EMSA. (§ 1797.105, subd. (b); see County of Butte, supra, at p. 1199.) This expresses legislative intent for an integrated process wherein local authorities may design and adopt EOAs based upon specific needs of their populations, subject to state-level review and approval to confirm the EOA meets all regulations, and is in the best interests of those to be served. EMSA contends that where a locality seeks to provide an operator with exclusive statute, EMSA review and approval is an indispensable statutory condition.
County’s scheme conflicts with this component of the EMS Act. While the ordinance purports to create a non-exclusive system, only one provider was issued a permit, which created a de facto EOA. In theory, the EOA falls outside of Section 1797.224’s review and approval requirement, because it occurred under a local regulation that allowed for more than one permit to be issued. The nature of EMS is that even purportedly non-exclusive permitting regimes may result in a single provider being authorized to operate, and it is these economic realities that resulted in the Legislature’s authorization for EOAs. This “predictable result”, however, poses the same risks to the quality and equitable access of patient care as EOAs established under Section 1797.224, only without the safeguard of neutral EMSA oversight. Local monopoly of emergency services risks numerous harms to patients, including higher costs and administrative inefficiencies that diminish the quality of and access to care. Sometimes, the administrative need for an EOA will outweigh the concerns, but EMSA oversight/approval provides for independent evaluation of the considerations.
EMSA emphasizes that the only legally permissible way to adopt an exclusive arrangement for EMS services is through compliance with Section 1797.224. Exclusive contracts for local public services inherently operate as illegal restraints on trade in violation of the Sherman Antitrust Act. (Redwood Empire Life Support v. County of Sonoma (9th Cir. 1999) 190 F.3d 949, 953.) A narrow exception exists when anticompetitive local conduct is authorized by state law, furthering clearly articulated and affirmatively expressed state policy. (Community Communications Co., Inc. v. City of Boulder (1982) 455 U.S. 40, 52.) Through Section 1797.224, the Legislature clearly expressed a state policy authorizing creation of local EOAs for emergency services, but only on condition that the agreements be reviewed and approved at the state level. (County of Butte, supra, at p. 1199.)
e. FCA input.
FCA’s Amicus Curiae Brief spans a number of separate topics related to the injunction issue. Only those related to the likelihood of AMR’s success on the merits of its first cause of action for declaratory relief with respect to the EMS Act will be discussed in this section.
FCA first contends that Ordinance 5182 is lawful and is not preempted by the EMS Act, based upon contentions that provisions of the Vehicle Code and Welfare and Institutions Code authorize local government regulation of ambulance services through permits and licenses, and because the Legislature intentionally omitted such ambulance licensing and permitting from the EMS Act. FCA cites to Vehicle Code sections 2500-2512, related to requirements that the California Highway Patrol (CHP) issue licenses to drive an ambulance, and sections 2540 to 2549, which specify the grounds and procedure for denial, suspension, or revocation of such license. Specifically referring to Vehicle Code section 2512(a), FCA contends that the CHP is tasked with adopting and enforcing regulations for the operation, equipment, and certification of drivers of all ambulances used for emergency services. Section 2512(c) permits local authorities to adopt more restrictive regulations, and provides that those set forth in the statute are the minimum necessary to protect public health and safety. FCA cites Bell v. City of Mountain View (1977) 66 Cal.App.3d 332, 338-339, in support of its contention that Section 2512(c) delegates to local governments the powers to regulate “rates, advertising and distribution of [ambulance] services, and to issue permits to providers on the basis of public convenience and necessity, and to exclude non-permitted providers.
FCA asserts further that Welfare & Institutions Code section 14136(a) preempts local regulation of nonemergency ambulance services for Medi-Cal beneficiaries, but that its subdivision (f) provides that “Nothing in this section shall be construed to restrict the authority of local government to issue or deny licenses or permits to operate medical transportation services within its jurisdiction on the basis of need and necessity findings.”
FCA reasons that the Board adopted Ordinance 5182 to undertake the prescribed functions and responsibilities of a county concerning medical transportation services as authorized by, among other authorities, Section 2512(c), Section 14186(f), and case law. Under the ordinance, the Board must consider the totality of the circumstances including public health, safety, welfare, convenience, and necessity, when evaluating permit applications, and may only approve a permit upon finding (a) the applicant’s experience, qualifications, and fitness to provide medical transportation services support approval, (b) the feasibility and economic viability of the applicant’s proposed services are sustainable as proposed, and (c) the applicant’s proposal demonstrates a community benefit through innovative service delivery, local reinvestment and reasonably assures an integrated public safety response to time sensitive EMS needs. (Ordinance at § 5-7.) FCA contends that the court in Bell upheld a substantially similar city ambulance ordinance, finding that because Section 2512(c) expressly authorized it, the ordinance was lawful and not preempted by state law, and concludes that the same is true with Ordinance 5182. FCA argues that the Bell court expressly rejected the contention made by AMR here that the ordinance was unlawful to the extent it allowed the Board to compare applicants and pick winners and losers, holding that Section 2512(c) allowed local governments to select and choose among equally qualified providers and exclude non-permitted providers. FCA concludes that it is immaterial that the facially non-exclusive permit issued to County Fire has become de facto exclusive following the denial of AMR’s application, citing Subriar v. City of Bakersfield (1976) 59 Cal.App.3d 175, 181, n.1, 197, 206, and Sievert v. National City (1976) 60 Cal.App.3d 234, 236-237.
FCA supplements its argument that Ordinance 5182 is not preempted by the EMS Act by engaging in a legislative history analysis of the enactment and amendment of the EMS Act, and contending that the Legislature intended to exclude licensing and permitting of ambulance services from the EMS Act, apparently referring to the Vehicle Code and Welfare & Institutions Code provisions discussed above.
FCA then engages in an extensive discussion of the potential antitrust implications of the Board’s actions, contending that federal antitrust law issues are outside this court’s jurisdiction, that both AMR and EMSA have misconstrued and misapplied federal antitrust law, that County is immune from federal antitrust liability without the need of showing active state supervision by EMSA, that the Legislature does not have the power to confer immunity under federal law, and that the County parties are also immune from antitrust liability under state law.
f. County response to EMSA Amicus Curiae Brief
In introductory comments, County reiterates its previously articulated contentions that injunctive relief is not available because it would require County to enter into a contract with AMR for provision of ambulance services, and AMR has acknowledged that the case is about money and therefore cannot show irreparable harm.
To the extent the Court “opts” to examine the merits, County contends that the EMSA brief does not change the fact that AMR is unlikely to succeed on the merits. It contends the Board adopted the ordinance that established high standards for EMS providers, including that the applicant (1) had the experience, qualifications, and fitness to provide medical transportation services, (2) confirmed feasibility and economic viability of the applicant’s proposed services, and (3) demonstrated community benefit through innovative service delivery, local reasonable investment, and assurance of an integrated public safety response (Ordinance @ § 5-7), and the EMS Act require the Board to influence the policy priorities for provider selection in this way. (§ 1797.230(c).) It contends AMR’s application failed to meet these standards, in lacking sufficient detail regarding how it proposed to serve remote areas of the County while meeting LEMSA response time requirements, failing to propose or demonstrate innovative improvements for promoting system integration, including integration with existing ALS/BLS resources, and failing to demonstrate how it would integrate with the IFT and CCT permit providers to ensure a cohesive system. At the application hearing, AMR explicitly declined to provide innovative programs to benefit the community. County concludes the Board acted within its discretion to deny AMR’s permit.
County criticizes the EMSA brief for failing to address the “dispositive” issue of harm, concluding that because AMR has not made a sufficient showing of these issues, there is no need to discuss the merits. County also criticizes EMSA for failing to address how the Court could fashion an order that would preserve the status quo and avoid chaos, again identifying the “status quo” as the March 1, 2024 expiration of the AMR contract, which would illegally leave county without any contract for provision of ambulance services. County presumes AMR is asking the court to order the parties to enter into a new contract or extend the existing one, but County contends this is not permissible under California law, citing Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266, and Giles v. Horn (2002) 100 Cal.App.4th 206.
Reaching the merits, County contends that AMR will not prevail on the merits, for several reasons. First, County contends that counties may permit EMS, and Boards may influence EMS policy. County contends that it is clear from all briefs that the vast majority of its actions at issue are non-controversial. Counties may permit EMS. Counties may properly deny some permits. Boards oversee LEMSAs, and therefore may properly impact EMS decision-making. EMSA agrees that local officials can and do play an important oversight role in the administration of EMS, which is contrary to AMR’s interpretation of County of Butte that the splitting of duties between LEMSA and the Board is prohibited, and undermines AMR’s first argument as to why the action at issue violated state law. Nothing in the EMS Act indicates the Legislature intended for county-controlled LEMSAs to operate in a manner completely divorced from the ordinary control exercised by counties over their subdivisions.
With respect to the first category, County contends that the EMS Act authorizes Boards to influence policy with respect to provider selection, and that influence does not threaten medical control. A number of statutory schemes authorize the permitting action at issue, including the EMS Act. The Board’s action was consistent with and required by the EMS Act. EMSA argues that the Ordinance allows first-instance policy-making by politicians rather than medical experts that runs contrary to the intended design of the EMS Act, but the Act requires Boards to lay out policy priorities for provider selection. Further, the explicit terms of the ordinance and the LEMSA’s role in regulating permitted providers make clear that the system continues to be managed by medical experts. It argues that Board participation in provider selection does not usurp medical control of the EMS system, and that the EMS Act doesn’t support EMSA’s contention that elected officials are precluded from selecting EMS responders. Section 1797.230(c) requires boards to enact a written ordinance or policy to define the county’s policy priorities. County contends that the examples of county policy priorities that the EMS Act suggests a Board might consider mirror the considerations set forth in § 5-7 of Ordinance 5182. The Ordinance grants the Board the same type of influence over EMS provider selection that the EMS Act contemplates.
County further argues that it is inaccurate to suggest that provider selection was “devoid of participation by medical personnel.” The LEMSA Director served as permit officer, received and analyzed the clinical components, and presented those findings to the board. LEMSA’s clinical oversight also continues after grant of the permit, and the Ordinance maintains LEMSA’s medical control over the EMS system. The Ordinance preserves for LEMSA all of the LEMSA duties articulated by EMSA in its brief, and provides that nothing in the ordinance shall be construed to modify, alter, enlarge, or impair the statutory functions of the LEMS or the medical control of the LEMSA’s medical director under the EMS Act; that the ordinance does not limit or prohibit the LEMSA from conducting its duties as defined in state statues or regulations; that LEMSA continues to be responsible to plan, implement, and evaluate the EMS system; that LEMSA must negotiate and enforce a provider agreement with permitted providers (which sets forth clinical standards for the providers; LEMSA remains the entity preparing the EMS plan to submit to EMSA; and the medical director continues to be required to approve LEMSA policies.
The ordinance allows the Board to influence priorities for EMS provider selection, and the EMS Act explicitly requires that. Degradation of medical control over EMS is not at stake, and LEMSA implements the system after the permits are awarded.
County dismisses outright that the denial of the AMR permit left only one provider in the “zone” (i.e. countywide), since it did nothing to restrict the number of applicants, and had no control over the fact that only two providers applied. It argues that the denial did not create an EOA such that 1797.224 was triggered, since creation of an EOA is an affirmative act which County has not undertaken. While EMSA and AMR insist that 1797.224 is the only permissible way to adopt an exclusive arrangement, EOAs are not required. Neither EMSA nor AMR provide any support for the proposition that a non-exclusive arrangement with one provider in the absence of alternative qualified providers is an exclusive arrangement. Trial will demonstrate that most of the state consists of zones served by a single ambulance provider which was not selected pursuant to 1797.224, but nonetheless maintains de facto exclusivity.
County contends that EMSA’s concerns that it will lack oversight over the zone are unfounded. LEMSA must still submit an EMS plan to EMSA annually (§§ 1797.250, 1797.252, 1797.254) and EMSA must determine that the plan does not effectively meet the needs of the persons served and is not consistent with coordinating activities in the geographical area served, or that the plan is not concordant and consistent with applicable guidelines or regulations, or both the guidelines and regulations, established by the authority, and deny all or part of the plan. (§ 1797.105.)
Finally, County agrees with FCA that the denial of AMR’s permit does not violate antitrust law, in that County is immune from such liability.
g. AMR response to EMSA and FCA Amicus Curiae Briefs.
AMR is in almost complete agreement with the EMSA brief, except with the application of § 1797.200 to counties that have vertically delegated LEMSA authority to one of their own departments. Even then, however, EMSA asserts that Boards may only exercise ultimate up or down approval over aspects of a local plan, unlike Ordinance 5182 under which it exercise unqualified authority over the “additional criteria” and does much more than exercise up or down approval. EMSA recognizes that 1797.224 provides the only way to confer a right to exclusive ambulance service, and that where an EOA is being provided, EMSA review and approval is an indispensable statutory condition. EMSA rejects the idea that de facto exclusivity may be conferred outside the 1797.224 process. EMSA articulates the importance of its role in reviewing local efforts to confer exclusive EMS, and articulates the risks that arise without neutral review to ensure that exclusivity is truly optimal. County’s scheme has not received any such review, notwithstanding that it is especially important when exclusivity is conferred on a county provider. EMSA recognizes the ordinance as an “outlier” that has circumvented the EOA process, and explains the adverse consequences which can occur when EOAs are not professionally vetted. EMSA’s brief should be given great weight.
With respect to the FCA brief, AMR responds in a number of respects, noting that FCA attempts to minimize the integral role the EMS Act plays in regulating local EMS systems, while inflating the importance of statutes that only peripherally affect ambulance service, wrongly assuming that counties retained the full scope of their police powers to regulate the field of ambulance service after the 1980 adoption of the EMS Act, and its 1984 amendment to regulate exclusive operating rights.
First, FCA contends that Vehicle Code and Welfare and Institutions Code sections authorize the ordinance’s scheme. AMR questions whether the Court can consider these authorities, since they were not relied upon by County and amicus briefs generally may not expand on issues not raised by the parties. Even so, AMR addresses the issue directly, noting that the Vehicle Code sections address the regulation of vehicles, drivers, and attendants, and the Welfare & Institutions Code section addresses Medi-Cal reimbursement—and neither address regulation of the EMS system, or the granting of exclusivity to provide EMS services.
Under the Vehicle Code, the CHP regulations operation of vehicles and use of the highways (Veh. Code, § 2400, subd. (b)), including administering a licensing scheme for private ambulances (Id., § 2416, subd. (a)(8)), which includes ensuring ambulances are maintained in good mechanical repair and sanitary condition, and equipped as required (§ 1100.3), mandating the equipment they must carry (§ 1103), regulating the operation, equipment and certification of ambulance drivers and attendants (§ 2512(a); Cal. Code Regs., tit. 13, § 1103.3, 1100, and 1106(a).) The Vehicle Code makes clear that the CHP’s license authority may not conflict with EMSA regulations concerning EMS. (§ 2512, subd. (a).) As a result, its authorization for local authorities to adopt more restrictive regulations does not confer the broad authority CFA claims it does. Since cities and counties generally maintain their own road systems, it is reasonable for them to make special rules for use of the roads. However, the Vehicle Code does not broadly authorize county regulation of the EMS system, including qualifications for and performance of EMS providers, or granting of exclusivity to provide EMS, which belongs at the local level to the LEMSAs.
FCA’s reliance on Welfare & Institutions Code section 14136 is also misplaced. Subdivision (f) is not a grant of authority, but merely a qualification of what the statute does not do, relative to the provisions of subdivision (a), which relate to Medi-Cal reimbursements, and provides that local equipment and personnel standards may not conflict with Department of Social Services Standards. Reading the two together, the Legislature intended subdivision (f) to ensure Medi-Cal standards would not interfere with the administration of local licensing schemes, and neither expressly nor impliedly grants any broad authority over EMS systems.
Second, AMR argues that binding precedent holds the EMS Act is a general law of the State that preempts any conflicting exercise of the municipal police power, citing Cal. Const., Art. XI, § 7; City of Oxnard v. County of Ventura (2021) 71 Cal.App.5th 1010, 1017; and County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 922. As the opinion in County of San Bernardino made clear, law governing EMS before the EMS Act was haphazard, and the Act created a comprehensive system governing virtually every aspect of prehospital emergency services, evidencing the Legislature’s desire to achieve coordination and integration. AMR then reiterates the two-tiered regulatory system which the EMS Act created, in which EMSA establishes, and LEMSAs implement, the policies for coordinating and integrating EMS systems. AMR asserts that because the legislative design of the EMS Act is that LEMSAs exercise the broad authorities, counties may not rely on their police powers to assert additional or contrary authority. Instead, planning and implementation of a local EMS plan is legislatively entrusted to health care professionals (Memorial Hospitals Assn. v. Randol (1995) 38 Cal.App.4th 1300, 1314), and in enacting ambulance licensing or permitting schemes, county ordinances must strictly conform to the EMS Act and respect the role of LEMSAs in administering the local EMS system.
Third, AMR asserts that because the EMS Act expressly regulates conferral of exclusive operating rights, the Act preempts local permitting schemes that grant exclusivity by other means. FCA’s explanation of why it believes the ordinance does not create antitrust liability misses the point. AMR asserts it has not made any antitrust claim, and discussed such concerns because they form the backdrop for the process the Legislature enacted for creating EOAs. The California Supreme Court recognized that the statutes that codify the EOA process (§§ 1797.6, 1797.85, 1797.224) were enacted for the purpose of authorizing local EMS agencies to grant exclusive operating areas to private EMS providers such as ambulance companies. (County of San Bernardino, supra, 15 Cal.4th at pp. 917-918.) Section 1797.6 explains the legislative intent to create a uniform, statewide process for conferring exclusivity following the United States Supreme Court’s antitrust decision in Community Communications Co., Inc. v. City of Boulder, Colorado (1982) 455 U.S. 40. Section 1797.6 explains that the policy of providing effective and efficient emergency medical care has been hindered by concern about the Boulder decision, and to address that concern the Legislature expresses an intent to “prescribe and exercise the degree of state direction and supervision over emergency medical services as will provide for state action immunity under federal antitrust laws for activities undertaken by local governmental entities in carrying out their prescribed functions. . . .”
AMR asserts that the need for state guidance of local decision-making is at a maximum when it comes to the creation of EOAs, since ambulance service is a field where quality and cost control are vitally important state interests. (Mercy-Peninsula Ambulance, Inc. v. County of San Mateo (N.D. Cal. 1984) 592 F.Supp. 956, 963.) That many counties include mixes of populus and less populus areas creates an economic challenge for ensuring all areas are effectively service, which caused the Legislature to recognize that creating an EOA is an important administrative tool for designing an EMS system, in allowing the agencies to plan and implement a system that meets the needs of the constituencies and still ensure that providers have a territory sufficiently populated to make provision of the services economically viable. (County of San Bernardino, supra, 15 Cal.4th at p. 931.) Because of the importance of ensuring state supervision over the process for creating EOAs, the Act must be read to preclude counties from relying on police powers to create their own process for conferring exclusivity. The EMS Act expressly addresses the roles counties (as opposed to LEMSAs) have in the EOA process, which is to make a recommendation to the LEMSA to create an EOA. (§ 1797.85.) The EOA statutes are part of the state’s general law, which must be complied with if a county desires to restrict ambulance service to one or more providers, and precludes counties from granting exclusivity through any other means.
Fourth, AMR asserts that the EMS Act preempts those portions of Ordinance 5182 which grant the Board discretion in issuing ambulance permits. While County may not rely on its police power to enact a permitting scheme that conflicts with the EMS Act, that is exactly what Ordinance 5182 does. As set forth in AMR’s opening brief, the ordinance improperly assigns the LEMSA director only an advisory role in permit issuance, and establishes broad and open-ended “additional criteria,” that allow the Board to engage in subjective decision-making, including the amorphous “community benefit” standard that appears to have been the key determinant for permit issuance. The Board’s subjective consideration of the “totality of the circumstances” in determining whether to issue a permit. AMR’s reply explained how Ordinance 5182 allowed the Board to apply the “additional criteria” to confer exclusivity outside the state EOA process, utilizing the subjective criteria to pick an application they like more, and forcing the applicants to engage in a bidding war over who provides more community benefits. Under the Ordinance, the Board engages in the same type of evaluation that would occur in a competitive RFP process under the EMS Act, but does so purportedly through a non-competitive permitting system. The statutory EOA process preempts the County from creating EOAs through a process unsanctioned by the statutory scheme, and unsupervised by EMSA. While the EMS Act allows a county to recommend the creation of an EOA, Ordinance 5182 provides the Board with full authority to circumvent the EMSA role in reviewing the competitive process, in contradiction of the EMS Act. Its process is therefore void.
4. Court analysis regarding likelihood of prevailing on the merits.
After consideration of all of the arguments and authorities presented by the parties, by the state EMSA, and by CFA, the Court has concluded that AMR has established a strong likelihood of prevailing on the merit of its declaratory relief claim, with respect to the Board’s functional creation of an exclusive operating area for County Fire, without complying with the statutorily-required procedures for doing so. In explaining the basis for its conclusion, the Court will separately address claims made by County related to the propriety of its conduct under the EMS Act, in its opposition to the motion for preliminary injunction. The Court has fully considered all arguments raised by County and FCA, even if not expressly addressed below.
The Court notes that the findings it makes below are made solely in the course of the Court’s evaluation of AMR’s likelihood of prevailing on the merits, in making a discretionary decision whether defendants should be subject to the requested injunction, and do not constitute an adjudication of the ultimate rights in controversy. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) Consequently, other than providing a basis for the motion for preliminary injunction, the Court’s findings will have no binding impact on the case going forward.
Propriety of the level of County control of the EMS process under the Ordinance In its motion, AMR argues that once a County designates a LEMSA, only the LEMSA is permitted to administer and adopt local EMS policy. County responds that AMR’s contention that its ordinance is illegal because it gives the Board authority which belongs to the LEMSA is wrong because (1) it is permitted to contract with the fire district by Government Code sections 54980-54981; (2) its ordinance does not create an EOA, the creation of EOAs is not the only means of regulating an EMS system, and only the creation of EOAs is delegated to the LEMSA, and (3) that the enactment of Section 1797.230 concentrated more EMS authority in Boards, and its acknowledgement that a county, and not a LEMSA, may contract with a fire agency which provides EMS through a subcontractor, indicated that the county already had authority to contract with an EMS provider.
The first and third arguments are addressed separately below.
Having said that, however, EMSA also noted that the EMS Act mandates that the LEMSA play a leading role in local EMS activity, and that its provisions evidence clear intent that substantive local EMS policy must be developed and proposed through the LEMSA’s medical expertise. Although counties may exercise ultimate approval or disapproval over aspects of a local EMS plan, the LEMSA must be the agency which develops, facilitates, and recommends local policy—not the Board. It notes that materials before the court related to the September 19, 2023 Board meeting at which the permit decisions were made indicate that LEMSA only certified that the applications met minimum requirements and made no report or recommendations on the purported “additional permit criteria,” and the Board’s decisions concerning the criteria appeared to have been made without the required LEMSA input.
County attempts to claim that its permit ordinance is largely the same as those which exist in many other counties within California, describing permit ordinances as “lawful and ubiquitous.” AMR responds by noting that none of those ordinances task a board with deciding on permits, many predate County of Butte, many limit board responsibility to issuing permit to health officials or permit officers, and some only allow boards to exercise appellate authority. The few which provide the Board with a broader role still limit it to reviewing staff recommendations or determining compliance with defined standards.
EMSA further lays bare County’s claim that permitting ordinances such as its are “lawful and ubiquitous,” stating that County’s ordinance is unique, in EMSA’s experience. EMSA notes that local permitting regulations are normally purely ministerial, setting forth objective qualifications which, if met, entitle an operator to provide EMS. Ordinance 5182, on the other hand, appears to permit the Board to exercise unilateral authority under subjective criteria, and thereby to make substantive EMS policy without LEMSA input or evaluation—which runs contrary to the intended design of the EMS Act. Even with those few counties with some governing authority by the board, LEMSA’s role in the EMS Act’s structure is not displaced. Further, those statutory models that do not expressly require LEMSA oversight (§§ 1797.201, 1797.230) do not call into question that LEMSA must be the main engine of local EMS analysis and policy. Section 1797.201 models must eventually be integrated into the EMS Act’s structure, and Section 1797.230 cannot be read to sanction a unilateral exercise of contracting authority on “additional permit criteria” without analysis or input by LEMSA medical professionals.
The Court agrees with both AMR and EMSA on this issue. Here, it appears that the Board alone evaluated AMR and County Fire’s “additional permit criteria,” and neither LEMSA generally, nor its medical professionals specifically, were permitted to weigh in on the viability of the criteria, how they reflected on the provision of EMS, or why they should be given such weight that a highly qualified EMS provider would be denied a permit based solely upon those amorphous and vaguely described criteria. The only LEMSA involvement in the permit process was to evaluate each application to determine whether they met the minimum substantive requirements under the ordinance. LEMSA found that both AMR and County Fire’s applications met those substantive standards. (Ordinance 5182, Sec. 5-6.) LEMSA then advised the Board of that fact, and noted that, pursuant to the Ordinance’s terms, the Board would then consider whether AMR and County Fire met the “additional criteria” set forth in Section 5-7 of the Ordinance.
In its brief responding to the EMSA amicus curiae brief, County argues that it is inaccurate to suggest that the permit process was devoid of participation by medical personnel, given the LEMSA involvement in evaluating the “clinical” components of the applications and advising the Board of their findings, and further argued that LEMSA’s clinical oversight also continues after grant of the permit, and the Ordinance maintains the LEMSA control over the EMS system. County’s arguments miss the point that LEMSA’s medical experts were bypassed by the Ordinance’s reservation to the Board alone of its subjective evaluation of amorphously described and completely undefined “additional criteria,” upon which the Board expressly relied in denying AMR’s application for permit. The fact that LEMSA may thereafter administer and control the EMS system, once it has been excluded from providing its statutorily mandated input on the critical selection process, does not save the Ordinance from this defect.
Further, County’s opposition arguments herein made no effort to explain how AMR’s submission was substantively deficient, merely comparing the number of words or pages related to the “additional permit criteria,” as if the length of the submission itself justifies the decisions on the additional permit criteria. In its brief responding to the EMSA amicus curiae brief, County went well beyond the scope of that brief in arguing that AMR said it did not seek to preclude “qualification, performance, clinical, financial, or other substantive standards,” and would only take issue with the community benefit “prong” of Section 5-7(A)(3). It contended that the denial was broader than that, and relied upon the application of “substantive” standards. The denial found that AMR’s proposal lacked sufficient detail regarding how it proposed to serve remote areas of the County while meeting LEMSA response time standards, and did not propose or demonstrate innovative improvements for promoting system integration, including integration with existing ALS/BLS resources.
County’s assertion mischaracterizes AMR’s argument. What AMR said was that it was not moving to preclude the enforcement of the provisions of Ordinance 5182 that set forth experience, qualification, performance, clinical, financial, or other substantive standards, and asked only that the court enjoin County from applying the ordinance’s discretionary approval provisions to secluse AMR from participating in an open system. (AMR Reply @ 11:1-4.) The “discretionary approval provisions” to which it was referring were the entirety of the provisions of Section 5-7(A)(3), over which the Board alone had reserved the authority to evaluate the applications. Section 5-7(A)(3) required the Board to make a finding that “The applicant’s proposal demonstrates a community benefit through innovative service delivery, local reinvestment and reasonably assures an integrated public safety response to time sensitive EMS needs.”
AMR did not excise “community benefit” from the remainder of Section 5-7(A)(3), as a severable “prong” of 5-7(A)(3) or otherwise, in making the statement upon which County relies. Further, if the matters set forth in Section 5-7(A)(3) are in fact “substantive”, as County claims, that is all the more reason why the Ordinance’s complete exclusion of LEMSA from the decision-making process on the “additional criteria” was in violation of EMS Act requirements.
Even more importantly, LEMSA had already made a finding that the AMR application met the minimum requirements of the Ordinance, set forth in Section 5-6 of the ordinance, which included a demonstration of AMR’s ability to meet LEMSA response times. (Sec. 5-6.(B).) Board’s denial of the AMR permit based upon a finding that the application “lacked sufficient detail” regarding how it proposed to serve remote areas of the County while meeting LEMSA response time standards, is therefore seriously called into question as a valid basis for permit denial.
The Board also found AMR’s application lacking for failing to demonstrate “innovative improvements for promoting system integration, including integration with existing ALS/BLS resources.” County’s brief have completely failed to advise the Court as to what “existing ALS/BLS resources” are, such that it has any basis to evaluate the contention on its merits. More importantly, under the EMS Act as a whole, LEMSAs are tasked with ensuring the integration and coordination of their own EMS systems, and it is unclear to the Court how or why the factor could or should be a determining factor resulting in the denial of a permit application which otherwise had been found to meet all minimum ordinance standards.
Additionally, County acknowledged that AMR made clear that, given that the Ordinance only provided for an initial one-year contract, that period of time did not allow for the types of programs and investments that it had included in its competitive proposal, wherein a 7-year contract was at issue. County failed to acknowledge or explain how holding any applicant to a stringent standard for these amorphous criteria could be justified, in the context of only a one-year contract. Particularly for a private EMS provider—as opposed to a county-affiliated, public-funded EMS provider with a substantial non-EMS presence within the county—a one-year contract would place serious limitations on the ability to meet (or exceed, apparently) such criteria, calling into question the overall viability and/or validity of such a criterion.
The Board’s complete reliance on Section 5-7(A)(3), and its undefined criteria, to deny a permit to a highly qualified provider gives the appearance that the Board was concerned that if the permits were evaluated according to objective criteria, it could not dictate the outcome of the permit procedure—which is precisely the point of the integration, coordination, and EMSA oversight requirements of the EMS Act, i.e., to require that decisions be made by medical professionals, and not for political reasons.
For purposes of the motion for preliminary injunction, the Court finds that County’s ordinance unduly precludes LEMSA input, contrary to the terms and intent of the EMS Act. Rather than limiting the Board to oversight or final approval decisions made on LEMSA’s professional recommendations, the ordinance reserves EMS policy-making and provider decisions to the Board, based upon criteria which appear to have been so vaguely drafted that providers such as AMR are unable to challenge or refute the denial of their permits in any meaningful manner.
Creation of EOAs County argues that Ordinance 5182 does not create an EOA, and contends further that the creation of EOAs under 1797.224 is not the only way to regulate an EMS system. The Court wholly agrees with County in those basic arguments, but does not find that they render legal County’s conduct in using a purportedly non-exclusive, multiple-EMS-provider ordinance to create a de facto exclusive operating area contract for its subdivision, County Fire.
Under 1797.224, the only permissible manner in which a county or LEMSA can create an EOA, is if the competitive process is utilized to select the provider, or if the LEMSA continues the use of a grandfathered provider who has provided uninterrupted EMS since January 1, 1981, in the same manner and scope as those services have been provided since that time.
In codifying and expressly regulating the creation of EOAs in 1797.224, the Legislature recognized the economic realities that EMS providers need to have a territory sufficiently populated to make the provision of the services economically viable, and sometimes that can only be accomplished by permitting them to operate within an exclusive operating area, wherein the entity is the only provider of EMS services under the local EMS plan. (San Bernardino, supra, 15 Cal.4th at p. 931.) In turn, the Legislature recognized the critical importance of the neutral approval and oversight of EOA creation by the EMSA, which may reject the plan containing the EOA, if it determines the plan does not meet the needs of the population served, is not consistent with coordinating activities in the area served, or is not concordant and consistent with the EMSA guidelines and regulations. (§ 1797.105, subd. (b); County of Butte, supra, 187 Cal.App.4th at p. 1199.) Further, in enacting 1797.224, the Legislature expressed a state policy authorizing localities to create EOAs for emergency services, on condition that they be reviewed and approved at the state level. (See County of Butte, supra.)
Indeed, as EMSA has noted, the “predictable result” that a non-exclusive EMS permit system may result in a single provider (exclusive) situation, is the very reason why the Legislature enacted 1797.224 in the first place. That “predictable result” would pose the same risks to quality and equitable access of patient care as an EOA established under 1797.224, but without the safeguard of neutral EMSA oversight. EMSA notes that local monopoly of EMS risk numerous harms to patients, including higher costs and administrative inefficiencies that diminish the quality of and access to care, and while sometimes the administrative need for an EOA may outweigh those concerns, EMSA oversight and approval provides an independent evaluation of the concerns. The risks that the decision may become a political one rather than a medical one, and that the financial or political incentives that may cause local officials to favor a bid from a county-operated provider over one of a private operator, both become especially critical where a county confers exclusivity on a county-operated provider, and make it especially critical that the both the creation and continued existence of the EOA be under direct EMSA control and oversight.
As both AMR and EMSA have noted, the fact that County engaged in an extended competitive bidding process for selection of an EMS provider for a proposed extended, seven-year contract (in which AMR came out significantly on top), then abruptly cancelled the RFP process and hastily enacted an ordinance which gave rise to only a one-year initial contract and two-year renewals, and made its subsequent permitting decisions on amorphous “additional permit criteria” utilizing undefined terms, raises significant issues regarding (a) whether County merely wished to install County Fire as an exclusive operator (whether in order to generate revenue or for some other reason), (b) whether County Fire’s connection to the Board resulted in a self-interested application, and (c) whether the resulting de facto EOA is in the best interests of patients and County residents. By essentially awarding County Fire an EOA contract under the Ordinance, County gives the appearance of attempting to evade the critical independent state-level review and evaluation of the propriety of granting an EOA generally, and of granting it to County Fire specifically.
Further, the fact that, in the course of the development of the Ordinance and during the period it was being developed, the LEMSA director express concerns about how multiple ambulance providers could operate within the system, and was advised by County’s ACEO that he shouldn’t worry about multiple providers, tends to support the conclusion that County never truly intended its ordinance to be “non-exclusive.” In conjunction with the the abrupt cancellation of the RFP process and hasty drafting and adoption of the not-really-non-exclusive ordinance, these facts also appear to support the conclusion that County may well have intended from the outset to supplant AMR’s EOA EMS contract with an (albeit “de facto”) EOA EMS contract for County Fire.
In its opposition brief, County argued that 1797.224 is not applicable, and that its “non-exclusive zone” ordinance is not subject to state-level oversight. Just as did EMSA, the Court disagrees with this conclusion. Indeed, County essentially recognizes that the provision of its ordinance will ultimately be subject to some amount state-level oversight, in making its argument (discussed below), that AMR did not exhaust the administrative remedies involved when the current local EMS plan (which has Ordinance 5182 as a central component) is submitted to the EMSA for review and approval. In its brief responding to the EMSA amicus brief, County directly argues that its plan will ultimately be subject to oversight when LEMSA makes its annual submission of the local EMS plan to EMSA for review and approval. Even if that process were to ultimately result in an after-the-fact (as opposed to prior-to-its-implementation, as is contemplated by the EMS Act) rejection of County’s local EMS plan, however, that result would come far too late for AMR to receive any benefit from it, and the interim delay in the EMSA evaluation of the propriety of the plan risks considerable harm to County residents.
The fact of the matter is that, given the conclusion of this Court and other courts that the only legal manner for a LEMSA or County to create an EOA is through compliance with the requirements of 1797.224, there does not appear to be any legal way in which County Fire could or should possess a contract which establishes it as the exclusive provider operating in Zones 1 and 2 of the county—at least where there is another qualified provider seeking to provide EMS. County originally conducted the competitive process described in 1797.224, but AMR came out on top by more than 300 points and outscored County Fire in every category, after both its proposal and that of County Fire were scored by an independent panel. Further, unlike AMR, who has provided EMS within an the Zone 1 exclusive operating area since 1980 and would be considered a properly-grandfathered provider within the meaning of 1797.224, County Fire cannot permissibly be considered a grandfathered EOA provider, except within Zone 3—the sole district in which it has provided exclusive EMS services since the 1970s.
In summary, the Court does not find that the fact that the County’s permit ordinance had the potential to result in a single provider being granted a permit does not excuse or justify its non-compliance with 1797.224 with respect to the creation of a county-wide EOA for County Fire, and that EMSA approval is a necessary prerequisite, and EMSA oversight is a necessary condition, of any statutory or “de facto” EOA which results from County’s actions pursuant to the terms of the Ordinance.
Impact of Government Code sections 54980-54981 County argues that its entry into a contract with County Fire to provide EMS is expressly authorized by these section, thereby justifying its conduct. As quoted above, these sections are incredibly general in nature, simply defining “municipal services or functions” to include ambulance services (Gov. Code, § 54980), and providing that a local legislative body may contract with any other local agency for performance of any such services. (Gov. Code, § 54981). The sections certainly do not authorize County to enter into a contract for ambulance services with County Fire under whatever terms and conditions it wants, in spite of the existence of explicit statutory requirements governing the manner in which it may do so—and particularly with respect to the potential creation of exclusive operating areas for EMS providers, which is strictly regulated by Section 1797.224.
As noted by AMR, basic tenets of statutory interpretation require that the courts give legislative text a common-sense interpretation, with a view toward promoting, and not defeating, the Legislature’s intentions (Poole v. Orange County Fire Authority (2015) 61 Cal.4th 1378, 1384-1385), and the Legislature is presumed to be aware of existing statutes when it enacts or amends other statutes. (People v. Overstreet (1986) 42 Cal.3d 891, 897). Further, as stated by the court in People v. Breyer (1934) 139 Cal.App. 547, 550, “It is the general rule that where the general statute standing alone would include the same matter as a specific act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.” (See also 2B Singer & Singer, Sutherland Statutory Construction (7th ed. 2010, November 2023 update), Interpretation By Reference to Related Statutes, § 51:5.)
Government Code sections 54980 and 54981 reflect that they were enacted in 1978. The EMS Act was enacted in 1980, and was enacted to provide California with a statewide system for emergency medical services, and to ensure the provision of effective and efficient emergency medical care to the people of California. (County of Butte, supra, 187 Cal.App.4th at p. 1181.)
Section 1797.224 strictly and very specifically governs the manner in which exclusive operating areas may be created, and reflects that it was added to the EMS Act in 1984. The Legislature is presumed to have been aware of the provisions of Government Code sections 54980 and 54981 when it enacted the both the comprehensive EMS Act and Section 1797.224, and its regulation of the manner in which counties may enter into EMS contracts, as well as the ability of a county to contract with other county agencies in a manner that creates EMS exclusive operating areas. The EMS Act therefore necessarily imposes the requirement of specific compliance with the EMS Act generally, and Section 1797.224 specifically, when a county enters into an EMS contract with another county agency, including when the impact of the contract is to create an EOA for the other county agency.
The Court finds that Section 54980 and 54981 do not provide legal cover for County’s conduct in effectively creating exclusive operating areas for County Fire’s provision of EMS services, and do not permit it to evade the detailed requirements of the EMS Act.
Impact of Section 1797.230 County further argued that its conduct complied with state law, by pointing to Section 1797.230, and contending that its enactment in 2021 was a major change in the EMS Act, which concentrated more authority with Boards. County argues that 1797.230 directs that a county not enter into or renew an EMS contract unless the Board has adopted an ordinance setting forth its policy priorities, and that is what it did in enacting Ordinance 5182, and specifically the Section 5-7 provision requiring community benefit through innovative service delivery, local reinvestment, and integrated public safety response. It argues that 1797.230 acknowledged that a county—and not a LEMSA—may contract with a fire agency to provide EMS in whole or in part through a subcontractor, and asserts that this means the county already had authority to contract with an EMS provider.
The Court cannot find that 1797.230 has any application to the current case, nor does it render legal County’s de facto provision of its County Fire subdivision with an EOA contract in spite of the fact that County did not comply with the requirements of Section 1797.224. First, by its own terms, section 1797.230 applies only to contracts with a fire agency that is providing ambulances services either partially or wholly through subcontracts with a private EMS company. Here, the information before the Court makes clear that County Fire is not subcontracting out any portion of the EMS it is obligated to provide under its contract with County, and fully intends to provide all such services itself. Section 1797.230 is therefore facially inapplicable. As a result, its requirements that an ordinance be adopted which includes a written policy setting forth the types of issues set forth in 1797.230(c), do not in any way justify County’s enactment of Ordinance 5182, which could not possibly have been enacted pursuant to this wholly inapplicable statute.
The terms of 1797.230(c), upon which County relies to contend that its enactment of Ordinance 5182 was mandated by the EMS Act, confirm that the subdivision is not intended to extend beyond the subject matter of Section 1797.230, i.e., contracting for emergency ambulance services with a fire agency that will provide those services in part or in whole through a written subcontract with a private ambulance service. (See, e.g., subdivision (c)(1), related to employment retention requirements for employees of the incumbent ambulance service, when such a subcontracting relationship is entered into.)
Additionally, the EMS Act is a general law which preempts conflicting local ordinances and regulations. (County of San Bernardino v. City of San Bernardino (1997) 15 Cal.4th 909, 922; City of Oxnard v. County of Ventura (2021) 71 Cal.App.5th 1010, 1017), and the California Supreme Court long ago recognized that the statutes and regulations of the EMS Act broadly mandate that the LEMSA agency formulate the medically related policies and procedures to govern EMS providers. (Valley Medical Transport, Inc. v. Apple Valley Fire Protection District (1998) 17 Cal.4th 747, 754.)
Finally, County’s interpretation of 1797.230, which goes far beyond the terms and language of that statute in utilizing its provisions to justify its creation of a de facto exclusive operating area for County Fire without complying with the provisions of Section 1797.224, is definitively foreclosed by the express provisions of subdivision (f), which provides: “This section shall not supersede section 1797.201 and shall not alter, modify, abridge, diminish, or enlarge the requirements for creating, establishing, or maintaining an exclusive operating area under Section 1797.224.” [Emphasis added.] As a result of this quite specific prohibition, the Court cannot find, as County contends, that County’s creation of a de facto anti-competitive EOA is a legally permissible foreseeable result of 1797.230’s authorizations. Even if 1797.230 were applicable here—which it is not—it expressly prohibits its interpretation or use in a manner which results in the creation of an EOA. As EMSA has noted, the establishment of an EOA without EMSA approval and oversight undermines critical provisions of the EMS Act.
FAC’s assertion that Ordinance 5182 is not preempted by the EMS Act FCA’s amicus brief first contends that Vehicle code sections 2500 to 2549 and Welfare & Institutions Code section 14136 authorize local government regulation of ambulance services through permits and licenses, and establish that Ordinance 5182 is lawful and not preempted by state law. As pointed out by AMR’s brief in response to the amicus curiae briefs, the Vehicle Code provisions have no relevance to the creation and regulation of EMS systems, and relate only to the vehicle licensing, equipment, and maintenance requirements, ambulance driver licensing and qualification, and ambulance attendant qualifications, over which the California Highway Patrol has been given oversight. They further make clear that the CHP’s license authority may not conflict with EMSA regulations concerning EMS, although they permits local authorities to adopt more restrictive regulations. (Veh. Code, § 2512, subd. (a), (c).) As noted by AMR, since cities and counties maintain their own road systems, it is reasonable that the Legislature would respect their authority to make special rules for use of their roads, but these provisions cannot be read to more broadly authorize regulation of systemic EMS matters such as the qualifications for and performance of EMS providers or the granting of exclusivity to provide EMS, which belongs to the LEMSAs, with only “up or down” oversight by the counties. The Court fully agrees that the Vehicle Code provisions relied upon by FCA have no relevance to the issues before the Court, and provide no support for Board’s actions herein.
FCA also relies on Welfare & Institutions Code section 14136 in support of its contention that Ordinance 5182 is not preempted by the EMS Act, contending that section 14136(a) generally preempts local regulation of nonemergency ambulance services for Medi-Cal beneficiaries, but that subdivision (f) provision that nothing in the section shall be construed to restrict the authority of local government to issue or deny licenses or permits to operate medical transportation services within its jurisdiction on the basis of need and necessity finding. It contends that Board expressly adopted Ordinance 5182 in part under the authority of Vehicle Code section 2512(c) Welfare & Institutions Code section 14136(f), and case law. It contends that the court upheld a substantially similar city ambulance ordinance in Bell v. City of Mountain View (1977) 66 Cal.App-.3d 332, 337.
As noted by AMR’s responsive brief, the Bell decision pre-dates the enactment of the EMS Act, and cannot be read to support any contention that Ordinance 5182 is not preempted by the EMS Act. Further, subdivision (f), rather than granting additional authority to local agencies, by its express language instead merely qualifies what the impact of subdivision (a) is on the existing authority of local agencies, and that subdivision (a) only relates to reimbursement for certain Medi-Cal patients. It provided no broad grant of authority to regulate local EMS systems, nor to establish a means by which a local authority could create a de facto EOA for an EMS provider without state EMSA oversight, the state-wide regulation of which was established through the 1980 enactment and 1984 amendment of the EMS Act. The same is true of the other pre-EMS Act cases relied upon by FCA in making its assertion that Ordinance 5182 is not preempted by the EMS Act.
FCA then engages in an involved legislative history analysis of the adoption of the EMS Act, in contending that the Legislature intentionally omitted ambulance licensing and permitting from the EMS Act. Given that the licensing and permitting provisions at issue, as discussed above, do not have any relevance to the issue currently before the Court, the fact that the Legislature reserved such matters for local control has no impact on the Court’s resolution of the issue of whether AMR has established a likelihood of prevailing on the merits.
County’s exhaustion of remedies argument In their opposition, the County defendants contend that AMR cannot proceed in this action, and cannot obtain a preliminary injunction, because it has not exhausted its administrative remedies. County’s argument is perplexing, at best. The administrative procedure to which it refers is that in which County’s LEMSA will need to submit its annual EMS plan (involving the newly-enacted ordinance) for review by the EMSA. If the plan is not approved, the denial may be appealed, and the EMS Commission will make the final decision.
The argument is perplexing because the administrative process at issue is that which involves only County’s LEMSA and the EMSA regarding County’s own plan, and has no apparent involvement by AMR or any other individual EMS provider. County does not explain how the proceedings would apply to AMR, or precisely what decision AMR would need to appeal. It certainly would not appeal an EMSA denial of County’s plan arising from the enactment of Ordinance 5182, since it claims that Ordinance 5182 violates the law.
Based upon the information currently before it, the Court finds County’s exhaustion of remedies argument to be inapplicable to the current case.
C. Interim irreparable harm of granting or denying an injunction.
1. Party arguments and contentions.
a. AMR’s contentions regarding irreparable harm should the injunction not be issued.
Supported by the declaration of AMR Regional Director Michael Sanders, AMR contends it would suffer irreparable harm should the injunction not be issued, in that without interim relief, it will be contractually obligated to discontinue ambulance service on March 1, 2024. A resolution on the merits could take one to two years, with an appeal taking another two to three years. Given that length of time, the only prudent business option would be to fully withdraw from Santa Barbara County.
AMR leases 7 properties throughout the count for headquarters, deployment center, and crew quarters, which it would be forced to allow to expire. While it would make every effort to reassign its workforce of 160 to other AMR areas, it would likely lose many, and it would be forced to redeploy its fleet of ambulances elsewhere. It would lose goodwill and community relationships, including with longstanding vendors and suppliers, lose its County knowledge and experience base, and shutter a local school it established for training new paramedics. AMR estimates the cost to discontinue service for the pendency of this action would be just over $1 million.
If AMR is successful in this action, it would have to start over, including searching for and negotiating new strategically located leases, perhaps involving securing discretionary approvals, and coordinate necessary tenant improvements. It would need to secure a new workforce and provide training for newly-hired medical personnel and employees, and acquire a new fleet of ambulances and medical equipment. AMR estimates the cost to recommence ambulance service would total more than $16 million. The more than $17 million in shut-down and re-start costs could make any victory AMR achieves a Pyrrhic one. Since it could not likely bear such extraordinary costs, it would likely not be able to recommence County service.
b. County’s contentions regarding irreparable harm to it should the injunction be granted, and response to AMR’s claims.
In responding to AMR’s claims of irreparable harm, County first asserts that AMR’s quantification of the amounts it would cost precludes an injunction, because it constitutes an admission that it could be fully compensated in damages if it prevails. Second, County contends that AMR’s claims of purported harm are not supported by competent evidence, and the claimed costs of restarting service are both speculative and irrelevant since AMR admits it likely would not recommence service if it ultimately prevails. County notes that AMR did not challenge the legality of the ordinance when it was passed, and instead waited months before filing this challenge. County argues that AMR’s delay in seeking the injunction may be considered in determining whether the claimed injury is irreparable, citing O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.
County further asserts that it would be harmed much more if the injunction issues, than would AMR be harmed should it be denied. It contends that the status quo which AMR seeks to maintain is that its contract will expire on March 1, 2024. If the injunction is granted, County claims it will be without the AMR contract and without the ordinance’s permitting process, and that even a temporary grant of the injunction will preclude it from adequately preparing for the system transition on March 1, 2024. County contends that if it is left without the permit process, the carefully-orchestrated EMS system, which requires comprehensive coordination between 911 operators, dispatch, ambulance providers, and hospitals, would devolve, and LEMSA would be unable to enforce ambulance provider standards, provide EMS system equity, or ensure the financial viability of the system. County contends the following harms would result:
(1) Harm to or loss of life, since without contractual requirements to respond and system coordination, two providers could respond to a single call, leaving portions of the County without a posted ambulance and risking delays to other calls, and uncoordinated ambulance would put public safety at risk when they race to calls.
(2) No accountability, since LEMSA regulates EMS through contracts with providers, without which it could not impose standards, including response times, clinical outcomes, and ambulance availability.
(3) Risk to underserved populations, since without a coordinated EMS system overseen and regulated by LEMSA, providers would be incentivized to transport in more affluent, well-insured populated areas of the County, and disincentivized form providing transport in less affluent and uninsured areas. County Fire would have to post ambulances in low-revenue areas to avoid discriminatory effects, resulting in a need to subsidize its costs, and resulting in costs to taxpayers.
(4) Loss of LEMSA funding, in that LEMSA receives 92% of its funding from ambulance and hospital contracts or, from the permitted provider under the new contract after March 1, 2024. If the injunction is granted and AMR’s contract expires, LEMSA would not receive the funding it needs to regulate the system, including paying for staff salaries, support services, and essential software and supplies.
(5) Loss of dispatch funding, a significant portion of which is paid by the EMS provider through its contract.
(6) Loss of EMS in the county, given that without careful coordination, providers would suffer a significant decline in revenue, which would cause them to stop providing certain services, potentially leaving residents with a lack of ambulance services while public providers try to plug gaps and seek additional taxpayer funds to support the work.
(7) Financial harm to County and County Fire, which are taxpayer-supported public entities. County Fire has spent hundreds of thousands of dollars in preparing and submitting its permit application, and millions of additional dollars preparing to take over ambulance services, including recruiting staff, creating recruiting materials, developing fleet testing procedures, stocking inventory, purchasing uniforms, securing an ambulance storage location, developing policies and manuals, and buying ambulances and building them out, all of which would be wasted if the injunction is granted.
(8) Waste of county resources, in that County has already approved a budget revision for County Fire worth nearly $19 million necessary to implement the new EMS system, plus approximately $1.4 million for staff.
If the injunction is granted, County will be in violation of state law, since it would leave County without any contract for EMS, which is required by law. (§§ 1797.178; 22 CCR § 100168.) County argues that an injunction cannot command compliance in a manner that conflicts with other applicable law, citing Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554, 568.)
c. AMR reply.
AMR responds that the injunction would not harm either the EMS system or the public. First, the opposition starts from a flawed foundation, assuming that County would have no means of administering, funding, or ensuring the integration and coordination of the local EMS system if the injunction were granted, but that misstates the scope of the injunction AMR requests, and disregards the statutorily-provided contracting authority which the LEMSA possesses. County contends it would lead to “chaos” in the EMS system, but County itself declared this to be an open EMS system, which requires that it must allow all ambulance providers that meet State and LEMSA standards to operate within its territory. An “open” system must be set up to accommodate multiple providers, particularly where, as in County’s system, providers only have expectations to limited permit terms of one year, which must them be renewed. For all the investment County Fire is now making, it is only guaranteed a one-year contract.
The injunction does not seek to preclude County from actually maintaining its claimed open system. It only seeks to enjoin County from requiring AMR to obtain a discretionary, Board-approved permit as a condition for system participation, which would not preclude Public Health from enforcing any policy, standard, or rule that it has adopted to ensure supervision, integration, and coordination of ambulance services. AMR does not seek to preclude the enforcement of the Ordinance provisions that set forth substantive standards such as experience, qualification, performance, clinical, financial or other substantive standards, but rather seeks to enjoin County from applying the discretionary approval provisions to exclude AMR from participating in the open system. Having been a nearly exclusive ambulance provider for more than four decades, and having scored more than 300 points higher by the independent scoring panel in the RFP process, the notion that AMR is unqualified to serve in an open system is “absurd.”
Second, with respect to County’s claim that it would be without authority to contract with AMR during the term of any injunction, it does not explain why LEMSA could not execute a contract with AMR to operate in an open system during the term of any injunction, given that LEMSAs are statutorily authorized to execute such contracts. It is County that chose to convert to an open system, in which qualified providers must be permitted to provide service, or the system is not truly open. As long as AMR meets the requirements, County must authorize it as a participant. Any claim to the contrary results from its misreading of the authorities.
Third, AMR has worked with and respects LEMSA director Nick Clay, and agrees that his concerns about the integrity, integration, coordination, function, and financing are worthy of consideration, and AMR agrees that a properly functioning EMS system must prevent uncoordinated ambulance calls, ensure provider accountability, provide effective EMS to underserved populations, and fund dispatch and LEMSA administration and oversight. The problem with the emphasis on these concerns is that County has made no attempt to implement an open ambulance system, and its evidence confirms that it is working diligently to implement a system in which its exclusive provider is County Fire. County’s problem is that it continues to believe a single provider (exclusive) system remains legally possible. It offers no evidence how AMR’s participation in this system—if actually open—would be harmful. The injunction would not prevent LEMSA from administering a truly open system, or enforcing any policy or rule or any substantive requirements of the ordinance. It would not prevent Public Health from enacting new policies to actually implement a multiple-provider system, including establishing mechanisms to equitably distribute calls, ensure the providers duly respond to calls and serve all populations.
Fourth, with respect to County’s expressed financial concerns, AMR notes that the evidence and Fire Chief declaration confirm County is devoting taxpayer-funded resources to fund County Fire’s ramp-up to provide countywide ambulance service—but only as a single provider (exclusive) system, not an open one. The harm it alleges is that the injunction would prevent it from accomplishing what it cannot lawfully do—designate County Fire as County’s exclusive provider. Further, the injunction would not prevent County Fire from taking advantage of the capital investments it has made or the workforce it is hiring, since both County Fire and AMR could provide service subject to LEMSA medical control and oversight. An actual open system would put AMR and County Fire on even footings as non-exclusive providers.
Fifth, County dismissed the harm to AMR by claiming the harms it articulated could be redressed by other remedies, and may have an adequate remedy at law for damages, without identifying how. At the same time, it argues any financial recovery would be barred by federal antitrust immunity and other protections. County’s inconsistent arguments proves that AMR needs injunctive relief because damages may not be available. County also asserts that AMR could invoke a state administrative remedy through appeal to the State Emergency Medical Services Commission, but that remedy—if available—could not be pursued until County submits its EMS Plan to the EMSA, and County offers no evidence this process could be completed by March 1, when the AMR contract expires, nor does County establish that exhaustion of such an appeal was required prior to filing this action.
d. FCA input.
FCA contends that the public interest does not favor the preliminary injunction, the issuance of which would harm the viability of emergency ambulance services in Santa Barbara County. It contends that AMR’s assertion that under an open ambulance system such as County has chosen to convert to, all qualified ambulance providers must be permitted to provide service, is unsupported by evidence or authority. Both AMR’s and County Fire’s permit applications represented that they needed 100% of the 911 call volume for its provision of emergency ambulance services operations to be financially feasible, and those representation are consistent with (unspecified) case law and economic studies. FCA discusses at some length the cost structures of ambulance systems, contending that the cost of services increases whenever another provider is added to the system, since the costs of providing services must be spread among fewer patients. The discussion includes the economies of providing ambulance services, and how maintaining economic viability of services requires local governments to regulate prices and protect the incumbent from competitive entry into the lucrative, low-cost part of the market, essentially describing the economic realities that result in the approval of EOAs.
FCA argues that while AMR contends it does not seek to enjoin any substantive standards of Ordinance 5182, most of those substantive standards and consumer protections apply only to the permittee, including the Board’s establishment of the maximum allowable rates that permittees may charge. It contends that if the court issues the injunction, ambulance service providers will be free to charge increasingly higher prices to patients in need of emergency medical care. AMR requests the court enjoin County from exercising any control over entry to the system, and allow anyone to provide emergency ambulance services, notwithstanding that the financial viability of County Fire’s services will be harmed, costs will increase, patients will pay more, and services will be disrupted.
e. County response to EMSA brief.
f. AMR response to FCA input.
AMR contends that FCA’s amicus brief did not demonstrate that the public interest would be harmed if an injunction were granted. A public agency should not be permitted to violate the law and then claim the balance of harms weighs against an injunction because it cannot fully implement its unlawful scheme—a “heads we win, tails you lose” argument. If, at the conclusion of the RFP process, Board preferred a different outcome, and wished to preserve an exclusive ambulance system but adopt a different model, it could have recommended that the LEMSA develop a model and seek EMSA approval of a new competitive process in accordance with it. However, apparently at County Fire’s urging, it instead chose to abruptly scrap the system, overhaul the ambulance ordinance, and convert to a non-competitive permitting model. Because County chose to convert to a non-exclusive system, it cannot reasonably claim the public interest would be harmed form having to implement a multiple-provider system.
FCA essentially contends AMR must bear the burdens and expenses terminating service and moving out of the county, so that County can implement a “de facto” exclusive system rather than the non-exclusive system it adopted, and County should be excused from any obligation to prepare for the non-exclusive system that it adopted. Its argument is that the public interest will be harmed if the County cannot fully implement the de facto government monopoly over ambulance service that the EMSA has had no occasion to review or vet. AMR concludes that this is an audacious theory, and that what is contrary to the public interest is to permit implementation of an outlier system with an unproven provider for the County system’s size and complexity—in which AMR successfully provided EMS for more than 40 years. When subjected to a professionally run competitive process, AMR was deemed the most qualified bidder by a wide margin, and the notion that the public interest would be harmed if it participates in a truly non-competitive ambulance system is without merit.
2. Court balancing of the allegedly irreparable harms.
AMR estimated that a resolution of the action could take one to two years, and a resolution of any appeal could take another two to three years. It then articulated the harms it would necessarily suffer in being precluded from providing EMS in Santa Barbara County during that lengthy time, even if it were to ultimately succeed in the case, and opined based upon the financial and technical realities of providing EMS service that it would not be able to bear the extraordinary costs of recommencing services at that time.
While AMR made efforts to quantify those costs, including the more than $1 million in losses from being forced to shut down, and more than $16 million to start from scratch in order to recommence services, many of those losses are of a type that are somewhat intangible and not easily quantifiable. They involve the loss of trained local staff, and the difficulties that would be encountered in attempting to hire sufficient qualified staff to provide the required EMS, the difficulties encountered in training new hires to provide required services (particularly given the likely shut-down of AMR’s school for training new paramedics), difficulties in re-acquiring and leasing premises (headquarters, deployment centers, and crew quarters) throughout the County and conduct of necessary tenant improvements (potentially requiring discretionary permit approvals) so as to permit it to provide services which meet response time standards, the necessity of acquiring a sufficient number of properly equipped ambulances to serve the County, difficulties in reacquiring vendors and suppliers within the county, and other significant logistical and other problems. These are precisely the sort of harms which are not adequately addressed in any subsequent damage award, and which constitute irreparable harms properly considered in evaluating the propriety of issuing an injunction.
County additionally asserts that AMR’s claimed costs for restarting service should it prevail in this action are both speculative and irrelevant, since AMR has admitted it would likely not recommence service if it prevails. The argument appears to provide greater support for issuance of the injunction than it does the injunction’s denial, given that those costs would be entirely avoided, and AMR would not have to face the issue of whether it is financially feasible for it to reestablish service in Santa Barbara County upon prevailing, if the injunction issues to preclude County from forcing it to cease provision of EMS in the county upon the expiration of its current contract.
County articulates a list of eight harms it will suffer, although they have considerable overlap. It contends that the status quo of granting the injunction is that AMR’s contract will expire on March 1, 2024, and County will also be without the ordinance’s permitting process. Because there will be no contracts imposing requirements to respond or standards for response times, not only would the County be in violation of law (which requires contracts for EMS), clinical outcomes, and ambulance availability, harm to or loss of life could result, there would be no accountability, and underserved populations would be at risk. It further contends that without contracts, there would be a loss of LEMSA funding (since LEMSA receives 92% of its funding from ambulance and hospital contracts) needed to regulate the system and pay for services and expenses, and a loss of dispatch funding (a “significant portion” of which is paid by the EMS provider). Without contracts to impose standards and requirements, there would be a loss of EMS in the county, because without careful consideration the providers would suffer a significant decline in revenue causing them to stop providing some services. Finally, County asserts there would be substantial financial harm to County and County Fire, given that County Fire spent hundreds of thousands of dollars in preparing and submitting its permit application, and millions preparing to take over ambulance services, and County resources would be wasted because it has already approved a budget revision for County Fire worth nearly $19 million necessary to implement the new EMS system, plus $1.4 million for staff.
As a point of clarification, the “status quo” which would be preserved should an injunction issue would be AMR’s continued provision of EMS within the County pending resolution of the issues regarding whether County acted legally in the ways discussed above, in spite of the schedule March 1, 2024 expiration of its contract with County. The “status quo” to be preserved is most definitely not the March 1, 2024 expiration of AMR’s contract with County.
Further, the amounts spent by County Fire in preparing its application for a permit have no relevance here, and are not harms which would be caused by issuance of the injunction. As for the waste of County resources, the Court accords them very little weight, given that they have been expended as a result of conduct by County which may very well have been in violation of law, in particular the creation of an EOA for County Fire in a manner which purports to evade EMSA approval or oversight, and without complying with the strict statutory requirements for establishing EOAs under the EMS Act. Further, the entire purpose of requiring an bond when an injunction issues is to compensate a defendant for any damages caused by issuance of the injunction, if it is finally determined that the plaintiff was not entitled to it. (Code Civ. Proc., § 529, subd. (a).) Consequently, financial harms purportedly sustained by County as a result of the imposition of an injunction are not considered irreparable harms which were caused by issuance of the injunction.
With respect to the purported harms to be suffered because of the lack of a contract with AMR, including contractual requirements to respond, imposition of standards for AMR performance of EMS, loss of LEMSA funding, and loss of dispatch funding, County does not explain why these would be an inevitable result of the issuance of the injunction. Certainly, the terms of any injunction could require AMR to continue to operate pursuant to all terms and conditions of its current contract pursuant to an extension of its expiration date, and/or to permit County and AMR to enter into a subsequent contract which would continue to require AMR to comply with any and all existing or yet-to-be-established LEMSA oversight, regulations, and requirements, and to make the LEMSA and dispatch funding payments.
County contends that there could be a loss of EMS in the county, given that without careful coordination, providers would suffer a decline in revenue which would cause them to stop providing services. The assertion is somewhat puzzling. It gives the appearance of being an contention that the County of Santa Barbara cannot support an “open” multi-provider EMS system, and it is only financially viable for any EMS provider to provide EMS in the context of an EOA, but the non-exclusive, open system is precisely what Ordinance 5182 purports to establish. In turn, that gives rise to the inference that the hastily-enacted Ordinance 5182, including its subjective “additional permit criteria” over which Board appeared to have unfettered discretion, was created solely as a vehicle to supplant AMR in favor of County Fire, since AMR had already prevailed in the independently-scored competitive process required by 1797.224. Additionally, in originally proposing a non-exclusive, two-provider, permit-based ambulance transport system in Santa Barbara, County Fire had expressly represented that its own analysis, and that of three EMS consultants and a forensic CPA, had all concluded that a two-permit-based model is both financially viable and reasonably equitable for both permit holders. (County Fire’s March 31, 2023 letter to the Board.)
In summary, the Court finds that the balance of the harm to be suffered by AMR if the injunction is denied, against the harm to be suffered by County should the injunction be granted, weighs in AMR’s favor. Further, as will be discussed below, any legitimate financial feasibility issues would be considerably diminished with the expedited resolution of the first and second causes of action which are at issue in the motion for preliminary injunction and stay.
D. Public interest.
The issue of the public interest is relevant both to the motion for preliminary injunction and the motion for stay.
AMR contends that allowing AMR to continue in the capacity of providing ambulance serve in any manner and scope the LEMSA allows would not be contrary to the public interest. It has provided ambulance service in the county for more than four decades, and was found to be a superior bidder during the County’s RFP process, by a wide margin. In the permit process that followed, LEMSA staff determined that AMR met all minimum qualifications for providing service. There is therefore no reasonable ground to dispute AMR’s ability to continue to provide quality ambulance in any manner and scope the LEMSA allows. Given that it scored far higher than County Fire, the public interest would be best served by having AMR continue to provide ambulance service. The injunction would require AMR to abide by all EMSA and LEMSA policies and protocols, and the agency would retain all enforcement authority.
County responds that a stay of the permitting decisions would be disastrous for the public. Even if the Court could proceed with a rushed writ proceeding, a short delay could have dire consequences for the EMS system as of March, since neither the LEMSA nor the providers would have time to develop a plan to coordinate the system. Without a contract, the County would be in violation of state law (§ 1797.178), and there would be no rules governing the quality of EMS, including required response times for ambulances. County asserts that the Court should not put the ambulance system into chaos for the writ, particularly given that AMR is unlikely to prevail on the merits. County again relies on Section 1797.230, which provides that a county “shall not enter into or renew a contract for EMS unless the board of supervisors has adopted, by ordinance or resolution, a written policy” setting forth its policy priorities. It did so, and County Fire “demonstrated a significant benefit over and above the minimum competencies to make ambulance transports,” and County contends its decision to approve County Fire’s permit was within its discretion.
The Court has already addressed County’s 1797.230 arguments, and found them inapplicable to the current issues. Further, County’s public-interest-related arguments surround issues which can be addressed through the terms and conditions of an injunction. The Court finds that the issuance of an injunction in this case would not be contrary to the public interest, particularly given that the public interest is furthered by the fact that AMR has a proven record of providing EMS in Santa Barbara County, and scored significantly higher in the independently-evaluated RFP process than did County Fire.
E. Court evaluation of the potential-merit, interim-harm, and public interest factors, and resolution of the issue of whether imposition of an injunction is appropriate.
AMR seeks a prohibitory injunction, maintaining the status quo of its position as a provider of EMS services in County, in order to avoid irreparable harm that it will suffer if its current contract is permitted to expire and it is required to cease providing EMS within Santa Barbara County as of March 1, 2024. The Court has determined that AMR has a strong likelihood of prevailing on the merits of its cause of action for declaratory relief, with respect to its contention that County acted in violation of the EMS Act. The Court has further determined that the irreparable harms which AMR would sustain if the injunction were not issued outweigh those which County would sustain if it were issued, and the issuance of an injunction would not be contrary to the public interest.
Consequently, the Court has concluded that it is both necessary and appropriate for an injunction to be issued in this case.
While the terms of the preliminary injunction will be more fully articulated below, the Court intends to extend the expiration date for County’s contract with AMR, bifurcate the third cause of action and reserve it for later determination, and expedite the resolution of the first and second causes of action, in order to achieve certainty at the earliest possible time, and minimize to the greatest extent possible the harms which would be sustained by County arising from issuance of the injunction. An expedited resolution of the merits of the dispute weighs heavily in favor of AMR’s continued provision of EMS services in the interim, particularly since it would not require AMR to risk losing EMS infrastructure while, at the same time, it would County Fire with a greater opportunity to complete the tasks they have contended they are in a rush to complete in order to be prepared to take over exclusive county-wide EMS.
The Court intends to finally ascertain the first and second causes of action by approximately July 16, 2024, slightly more than 4 months after the scheduled expiration of the AMR contract.
In its response to the EMSA amicus brief, County contended that no injunction could issue to extend the termination date, since injunctions cannot protect against future injury, citing Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266, and Giles v. Horn (2002) 100 Cal.App.4th 206. Certainly, it is true that injunctions only address future harms. However, the contract has not expired, and neither of the authorities cited by County would in any way preclude an injunction which extends the expiration date of an as-yet-unexpired contract.
F. Nature and terms of injunction.
The Court will issue an injunction (1) staying the effectiveness and enforcement of Ordinance 5182, and (2) extending the expiration date of AMR’s current contract with County at least until the resolution of the first and second causes of action pending trial which this Court will schedule to commence on July 16, 2024, at 8:30 a.m. AMR shall continue to be obligated by all of the terms and conditions of its current contract, and shall continue to be subject to the oversight and control of its actions by the LEMSA (the County of Santa Barbara Department of Public Health). It must abide by all EMSA and LEMSA policies and protocols, and each agency will retain all enforcement authority. AMR shall continue to be obligated to make whatever financial payments (to LEMSA, to the Sheriff’s Department dispatch center, or any other contractually required payments) it is obligated to make pursuant to the terms of its current contract.
While the injunction is in force, none of the County defendants shall act in any manner so as to interfere with AMR’s continued provision of EMS pursuant to the terms of its most current contract.
Nothing in this injunction precludes County Fire from continuing with its preparations to provide EMS to the County, should it choose to do so.
AMR is directed to prepare a proposed order issuing the preliminary injunction, serve it upon the County defendants, and present it to the Court for execution. Once it has been executed by the Court, AMR must properly serve it upon the County defendants.
The Court will schedule an early Case Management Conference for January 5, 2024, at 3:00 p.m. Prior to that time, the Court directs the parties to meet and confer in the utmost good faith to establish a briefing schedule for the second cause of action for administrative mandamus. Any such schedule shall set the date for AMR’s filing of its Reply Brief no later than three weeks prior to the July 16 hearing on the administrative mandamus cause of action. The Court further directs the parties to meet and confer in the utmost good faith to determine whether any discovery will be required for trial of the first cause of action for declaratory relief and, if discovery is required, to establish an expedited schedule for its completion. The parties should also discuss and consider whether they will stipulate to have the trial of the first cause of action for declaratory relief conducted on papers, concurrently with the hearing of the administrative mandamus cause of action. If they do not so stipulate, the Court will commence the trial of the cause of action simultaneously with the hearing on the administrative mandamus cause of action.
G. Mandatory Imposition of Bond
If a preliminary injunction is granted, the court must require a bond or undertaking (Code Civ. Proc., § 529), or allow a cash deposit in lieu thereof (Code Civ. Proc., § 995.710). (Stevenson v. City of Sacramento (2020) 55 Cal.App.5th 545, 555.) The purpose of the bond is to cover any damages to the defendant (respondent) caused by issuance of the injunction, if it is finally determined that plaintiff (petitioner) was not entitled to the injunction. (Code Civ. Proc., § 529.)
Given the planned expedited resolution of the first cause of action for declaratory relief, and the second cause of action for administrative mandamus, harms to County which might be caused by an erroneous issuance of an injunction are limited. As noted above, to the extent that County has incurred substantial costs in preparing for County Fire to take over county-wide EMS on March 1, 2024, those costs arise from County’s actions pursuant to Ordinance 5182, and not from issuance of the injunction. However, defense costs incurred to ultimately defeat the injunction (on the merits of the dispute between the parties) would be recoverable against the bond. (See ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 15.)
The Court will therefore order that AMR post a bond in the amount of $50,000 no later than Friday, December 29, 2023, or such other date as this Court may specify at the hearing on this motion, concurrently with AMR’s submission of its proposed order granting the injunction.
Pursuant to Code of Civil Procedure section 995.930, County may contest the amount of the bond by noticed motion filed within 10 days after service of a copy of the bond. Any such motion should be supported with admissible evidence demonstrating how the harm to County from issuance of the injunction would necessarily exceed the amount of the Bond which has been set.
III. Motion for stay.
AMR also moves to stay County’s September 19, 2023, decision under Ordinance 5182 to approve County Fire’s ambulance permit, and to deny AMR’s application for permit, pursuant to the terms of Code of Civil Procedure section 1094.5(g), which provides, in relevant part:
(g) [T]he court in which proceedings under this section are instituted may stay the operation of the administrative order or decision pending the judgment of the court. . . . However, no such stay shall be imposed or continued if the court is satisfied that it is against the public interest.
Unlike a preliminary injunction, the court does not weigh the harm to the petition from denial of a stay against the harm to the public interest from granting a stay when determining whether a stay is appropriate under Section 1094.5(g), and instead considers only the potential harm to the public from granting the stay. (Rutter, California Practice Guide--Administrative Law (The Rutter Group 2023) Ch-19B Stays and Other Interlocutory Relief, § 19:77.)
Given that the public interest was considered in determining that an injunction should issue, the Court will find that the public interest does not preclude the granting a stay of the County’s permitting decisions pending resolution of the merits of AMR’s first and second causes of action.