Waste Management of Alameda County Inc. v. Biagini Waste Reduction Systems Inc.

WASTE MANAGEMENT OF ALAMEDA COUNTY, INC., Plaintiff and Respondent, v. BIAGINI WASTE REDUCTION SYSTEMS, INC., Defendant and Appellant. No. A077664 (Alameda County Super. Ct. No. 773909-5A) California Court of Appeal First Appellate District Division One Filed May 20, 1998
BY THE COURT:
        The request to publish the opinion previously filed on April 21, 1998, is hereby granted.
        The written opinion which was filed on April 21, 1998, is certified for publication with the exception of Parts I, II, III, and V.
        The written opinion which was filed on April 21, 1998, has now been certified for publication pursuant to rule 976(b) of the California Rules of Court, and it is therefore ordered that it be published in the official reports with the exception of Parts I, II, III, and V.



WASTE MANAGEMENT OF ALAMEDA COUNTY, INC., Plaintiff and Respondent, v. BIAGINI WASTE REDUCTION SYSTEMS, INC., Defendant and Appellant. No. A077664 (Alameda County Super. Ct. No. 773909-5A) California Court of Appeal First Appellate District Division One Filed April 21, 1998
        We conclude in this appeal that the trial court did not err by issuing a preliminary injunction in favor of respondent based upon the terms of a constitutionally valid exclusive franchise waste collection ordinance, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY         Pursuant to statutory authority granted by the California Integrated Waste Management Act of 1989, the City of Oakland enacted an "Ordinance Amending in its Entirety Chapter 6, Article 4, of the Oakland Municipal Code, for Recycling and Solid Waste Disposal" (hereafter ordinance) in July of 1995 to create an exclusive franchise for collection and disposal of solid waste. (Pub. Res. Code, § 40000 et seq.) ¹ According to the provisions of the ordinance, only the "solid waste and yard waste collector" (hereafter collector) franchised by the city is entitled to collect from single family dwellings or transport upon city streets any "solid waste," with enumerated exceptions. A companion ordinance authorized the city manager to negotiate and enter into an exclusive franchise agreement with respondent to act as collector of solid waste, in exchange for payment by respondent of monthly franchise fees and "city fees."
        A "Franchise Agreement for Solid Waste and Yard Waste Collection and Disposal Services" (hereafter agreement) between the city and respondent was executed on December 31, 1995. Paragraph 3.5 of the agreement granted respondent the franchise and right to collect, transport and process solid waste within the city in accordance with the provisions of the ordinance between December 1, 1995, and December 31, 2010. The franchise thus conferred upon respondent by the ordinance and agreement was "exclusive," except as to specified categories of materials, including "source separated recyclables," "construction debris" removed from the premises of a construction site by a licensed contractor, and solid waste hauled directly to a disposal facility or transfer station by the generator of the waste. ²
        On September 25, 1996, respondent filed a complaint for damages and declaratory and injunctive relief which alleged that appellant had contracted with others to collect and dispose of "construction debris generated within the City of Oakland" at specified locations in violation of the exclusive franchise provisions of the ordinance and agreement. An accompanying motion for preliminary injunction was supported by copies of the ordinance and agreement, along with declarations.
        The supporting declaration of William Johnson, president of respondent, stated that as consideration for the exclusive franchise rights granted by the agreement, respondent forgave an existing debt owed to it by the city in the amount of $19 million, and agreed to pay annual franchise fees in excess of $16 million. J. Morrow Otis, an attorney for respondent declared that appellant had been given notice to "cease and desist" the alleged acts violative of the agreement, but no response had been received. Stephen McCaffery, an "outside salesman" hired by respondent to investigate violations of the exclusive franchise agreement, declared that in response to a report from respondent's operations department, in August of 1996 he observed a "debris collection box" left by appellant which was "filled with construction debris" at a demolition site on 98th Avenue. According to information received by McCaffery from "knowledgeable" personnel, the debris box was thereafter taken by appellant and "emptied at the Davis Street Transfer Station" owned and operated by respondent. McCaffery also observed and photographed collection and disposal of construction debris by appellant at other locations in Oakland. He was informed that the loads brought to the Davis Street Transfer Station were recorded as "solid waste," for which the customers were charged "solid waste disposal fees."
        As part of its opposition to the motion for preliminary injunction, appellant filed evidentiary objections to respondent's declarations on grounds that the material in them lacked proper authentication, and consisted of inadmissible opinions, conclusions or hearsay evidence. The evidentiary objections were considered but not ruled upon by the trial court in the order granting the motion for preliminary injunction. The injunction commands appellant to refrain from collecting or disposing of any solid waste within the city in violation of the terms of the ordinance and agreement. This appeal followed.

DISCUSSION I. Respondent's Duty to Exhaust Administrative Remedies.
        We first confront appellant's argument that respondent is foreclosed from pursuing the present action for injunctive relief by its failure to exhaust an administrative remedy provided by the ordinance. Collection and transportation of "source separated recyclables" by licensed "recyclers," such as appellant, are excepted from the exclusive franchise provisions of the ordinance pursuant to section 6-4.06, subdivision (a). According to section 6-4.03, subdivision (b) of the ordinance, recyclers must "source separate recyclables" at a recycling facility so that a load contains no more than the requisite "residual" component of ten percent, if mixed paper, or five percent, if commingled with recyclables other than mixed paper. If the residual component is greater than the maximum percentage, the load is considered solid waste and must be handled by the exclusive collector. Subdivision (b) of section 6-4.03 further states: "Disputes over whether material should be classified as Recyclables or Organic Recyclable Material or Solid Waste will be resolved by the Director. The Director's decision may be appealed to the City Manager in writing, explaining the basis of the appeal, within ten (10) days of such decision and the payment of a $500 appeal fee." Appellant submits that the provision for classification of the content of material by the director, with appeal rights to the city manager, constituted an administrative remedy which respondent was obligated to follow before pursuing the present civil action.
        The prospect of waiver arises from appellant's failure to raise the defense of exhaustion of administrative remedies in the trial court. ³ Generally, "parties are not permitted to ' "adopt a new and different theory on appeal. To permit [them] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." [Citations.]' (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 [257 Cal.Rptr. 397]; Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [194 Cal.Rptr. 357, 668 P.2d 664].)" (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847; see also Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1468.) An exception grants the appellate court discretion to consider an issue ignored in the trial court if it presents purely a legal question on an uncontroverted record and requires no factual determinations to resolve. (Ibid.; Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 431; Palmer v. Shawback (1993) 17 Cal.App.4th 296, 300.) The appellate court is more inclined to entertain a new issue of law on appeal where public interest or public policy considerations are raised. (Sommer v. Gabor, supra, at p. 1468; Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810.)
        The issue of respondent's duty to exhaust the administrative remedies afforded by the ordinance before maintaining a civil action is one of law based upon uncontroverted facts in the record before us. (Bockover v. Perko (1994) 28 Cal.App.4th 479, 490, fn. 9.) We exercise our discretion in favor of entertaining the exhaustion issue, which has some public interest implications concerning the functioning of the ordinance. (Ibid.)
        "Under the doctrine of exhaustion of administrative remedies, 'where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942, 132 A.L.R. 715].) This rule 'is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis and binding upon all courts.' (Id. at p. 293.) Exhaustion of administrative remedies is, in short, 'a jurisdictional prerequisite to resort to the courts.' (Ibid.) Its rationale is the prevention of interference with the jurisdiction of administrative tribunals by the courts, which are only authorized to review final administrative determinations. (Hayward v. Henderson (1979) 88 Cal.App.3d 64, 70 [151 Cal.Rptr. 505].) 'The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198 [200 Cal.Rptr. 855], original italics.)" (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447, fn. omitted.)
        Although " '. . . the rule of exhaustion of administrative remedies has become "a fundamental rule of procedure . . . ," courts have repeatedly recognized it is not inflexible dogma. There are . . . numerous exceptions to the rule including situations where the agency indulges in unreasonable delay . . . , when the subject matter lies outside the administrative agency's jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the agency is incapable of granting an adequate remedy, and when resort to the administrative process would be futile because it is clear what the agency's decision would be.' (Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222 [239 Cal.Rptr. 470], citations omitted.)" (Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1827; see also Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1567; Yamaha Motor Corp. v. Superior Court (1986) 185 Cal.App.3d 1232, 1240.) "Among the factors to be considered before the imposition of an exhaustion requirement is appropriate are: 1) whether resort to the administrative remedies would be futile; 2) whether the process is well understood and well developed; 3) whether a prompt decision as to all contested issues in the case is likely; 4) whether an exhaustion requirement would be fair to the parties in light of their resources; 5) whether it would be fair to other parties in the case whose interests might be affected; 6) whether the interests of judicial economy would be served by requiring exhaustion; and 7) whether the agency demonstrates that not requiring exhaustion would unduly interfere with its functioning. (Morrison-Knudsen Co., Inc. v. CHG Intern. Inc. [(9th Cir. 1987)] 811 F.2d [1209,] 1223-1224.)" (ABC Plumbing & Heating Co. v. Vernon Savings & Loan Assn. (1989) 208 Cal.App.3d 1370, 1381.)
        We are persuaded that the present case is excepted from the exhaustion of administrative remedies doctrine, for several reasons. First, any controversy over the classification of loads as solid waste or recyclables is peripheral to the primary and much more general complaint made by respondent of widespread infringement upon its exclusive franchise rights by appellant at construction sites. We are cognizant of appellant's defense that it is lawfully handling only recyclables rather than solid waste, and thus has not violated the ordinance, a claim that is subject to determination by the director under section 6-4.03, subdivision (b). We are also aware that an administrative remedy must be exhausted even where it may not resolve all disputes or provide the precise relief requested by a plaintiff, "because it facilitates the development of a complete record that draws on administrative expertise and promotes judicial efficiency." (Karlin v. Zalta (1984) 154 Cal.App.3d 953, 980, see also Yamaha Motor Corp. v. Superior Court, supra, 185 Cal.App.3d at pp. 1240-1241.) But here, not only does the administrative remedy attach to matters of secondary consequence in the litigation, the nature of respondent's action also disfavors insistence upon adherence to the exhaustion doctrine. Respondent's complaint and motion for injunctive relief renders the administrative remedy, with its attendant unavoidable delays, inadequate. The ordinance does not specify any time limits for the director's resolution of disputes over classification of materials. Forcing respondent to await the director's decision, and any appeal of it to the city manager, is antithetical to respondent's request for issuance of an injunction, which by its very nature demands prompt attention. (See Hull v. Cason (1981) 114 Cal.App.3d 344, 358.) Further, an administrative decision by the director would be unlikely to resolve the entire dispute between the parties, thereby necessitating further litigation in any event.
        The ordinance also contemplates use of remedies and procedures other than those mentioned in section 6-4.03, subdivision (b). According to section 6-4.18, subdivision (g): "Remedies under this Article are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive."
        Upon consideration of the interests of the parties, judicial economy, and the administrative agency, and particularly due to the perceived inadequacy of the administrative remedy, we conclude that respondent's action is not barred by failure to exhaust the administrative procedures articulated in the ordinance.

II. The Admissibility of Respondent's Supporting Declarations.
        Appellant renews its complaint that much of the material in respondent's declarations filed in support of the motion for preliminary injunction was inadmissible evidence. Appellant argues that the declarations lacked proper authentication or foundation, and contained inadmissible hearsay statements, conclusions and opinions. Appellant asks us to rule on the objections made in the trial court, delete the inadmissible evidence, and find the declarations inadequate to support issuance of the preliminary injunction for violation of the exclusive franchise ordinance and agreement.
        Although appellant objected to the evidence at trial, no ruling on the objections appears in the record. Without explicitly determining the admissibility of the declarations, the trial court found "good cause" for issuance of the preliminary injunction based upon consideration of the "papers filed in support of and in opposition to the motion." Appellant's failure to secure a ruling on the evidentiary objections at trial waives the challenge to the admissibility of the declarations on appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540; Haskell v. Carli (1987) 195 Cal.App.3d 124, 129.) The requirement of a ruling on an evidentiary objection at trial as a condition of pursuing the issue on appeal is not one limited to the statutory summary judgment procedure, as appellant claims, but rather is a general rule of appellate procedure. (See People v. McPeters (1992) 2 Cal.4th 1148, 1179; People v. Morris (1991) 53 Cal.3d 152, 195; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 284.) A party who objects to the admissibility of evidence has an obligation to press for a ruling so the trial court is given the opportunity to correct any potential error. (People v. Morris, supra, at p. 195.) ⁴

III. The Sufficiency of the Evidence to Support the Injunction.
        We proceed to appellant's claim that issuance of the preliminary injunction is not supported by admissible evidence of a violation of the exclusive franchise agreement. Appellant maintains that the supporting declarations, "when stripped of inadmissible evidence, . . . simply provide no basis for an injunction."
        "A preliminary injunction is properly issued only upon an adequate evidentiary showing. (Code Civ. Proc., § 527, subd. (a); Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146 [115 Cal.Rptr. 879]; cf. Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090 [223 Cal.Rptr. 410].)" (Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 247.) " '[T]rial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.' (IT Corp. v. County of Imperial [(1983)] 35 Cal.3d [63,] 69-70.)" (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624-625.)
        " '[T]he decision to grant a preliminary injunction rests in the sound discretion of the trial court.' (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 [196 Cal.Rptr. 715, 672 P.2d 121.) 'A trial court will be found to have abused its discretion only when it has " 'exceeded the bounds of reason or contravened the uncontradicted evidence.' " ' (Ibid.) 'Further, the burden rests with the party challenging the [trial court's ruling on the application for an] injunction to make a clear showing of an abuse of discretion.' (Ibid.)" (Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at p. 624.) "Where the evidence before the trial court was in conflict, we do not reweigh it or determine the credibility of witnesses on appeal. '[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court's province to resolve conflicts.' (Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 Cal.App.3d 692, 704 [134 Cal.Rptr. 714].) Our task is to ensure that the trial court's factual determinations, whether express or implied, are supported by substantial evidence. (Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242, 247 [167 Cal.Rptr. 610].) Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court's order. (Ibid.; American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838 [263 Cal.Rptr. 46].)" (Id., at p. 625.)
        As we have concluded that appellant's objections to the declarations are not cognizable on appeal, we examine the evidence as presented by respondent. According to the declarations, appellant collected and transported solid waste material at construction sites in contravention of the ordinance and agreement. Appellant did not demonstrate, as was its burden to fall within an exception to the exclusive franchise provisions of the agreement, that the material in question qualified as source separated recyclables rather than solid waste. According to the declarations, appellant was in direct violation of the ordinance by collecting and transporting construction debris rather than qualifying recyclables. Nor do we find that a change of circumstances has rendered issuance of the injunction inappropriate. Nothing in the record before us on appeal suggests that appellant ceased conducting business in contravention of the ordinance. We also perceive of no abuse of discretion in the trial court's dual findings that respondent will prevail on the merits and is likely to sustain interim harm if the preliminary injunction is denied. Issuance of the preliminary injunction was justified by the evidence. ⁵

IV. The Commerce Clause.
        We proceed to appellant's constitutional challenges to the ordinance and agreement, the first being that the exclusive franchise arrangement violates the Commerce Clause. Appellant complains that by precluding any collection of garbage except by the "favored local contractor," the city has discriminated against out-of-state business to promote "local economic protectionism," thereby imposing an impermissible burden on interstate commerce. ~(AOB 7)~
        The Commerce Clause grants to Congress the power to "regulate Commerce . . . among the several States . . . ." (U.S Const., art. I, § 8, cl. 3; Kilroy v. Superior Court (1997) 54 Cal.App.4th 793, 808.) " '[T]he Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. In short, the Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States. . . .' (Freeman v. Hewit (1946) 329 U.S. 249, 252 [91 L.Ed. 265, 67 S.Ct. 274]; see also Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 769 . . . ." (Barclays Bank Internat., Ltd. v. Franchise Tax Bd. (1992) 2 Cal.4th 708, 722.) "In this respect, the commerce clause resembles the supremacy clause in that it, albeit indirectly, 'defines the relative powers of states and the federal government.' ([San Diego Unified Port Dist. v. Gianturco (S.D.Cal. 1978) 457 F.Supp. 283, 290, affd. 651 F.2d 1306, cert. den., 455 U.S. 1000.])" (Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 9.)
        The limitation on the power of the states to act, referred to as the "dormant" Commerce Clause doctrine, subjects local legislation to a two-pronged inquiry: First, if a state law or local regulation discriminates against interstate commerce in favor of local business or investment, it is per se invalid, save a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Second, nondiscriminatory regulations that impose only incidental effects on interstate commerce are subject to a less rigorous balancing test under which the law is valid unless the burden so imposed is clearly excessive when balanced against the intended local benefits. (Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. (1994) 511 U.S. 93, 99; Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources (1992) 504 U.S. 353, 359; Hass v. Oregon State Bar (9th Cir. 1989) 883 F.2d 1453, 1462.) " 'Not every exercise of state power with some impact on interstate commerce is invalid. A state statute must be upheld if it "regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental . . . unless the burden imposed on such-commerce is clearly excessive in relation to the putative local benefits." ' (Edgar v. Mite Corp. (1982) 457 U.S. 624, 640 [73 L.Ed.2d 269, 282, 102 S.Ct. 2629, 2640]; Minnesota v. Clover Leaf Creamery Co. (1981) 449 U.S. 456, 471 [66 L.Ed.2d 659, 673, 101 S.Ct. 715]; Pike v. Bruce Church, Inc. (1970) 397 U.S. 137, 142 [25 L.Ed.2d 174, 178, 90 S.Ct. 844].)" (Partee v. San Diego Chargers Football Co. (1983) 34 Cal.3d 378, 382.)

A. Discrimination Against Interstate Commerce.
        We must first determine whether the ordinance has a discriminatory impact upon interstate commerce, which in the context of a Commerce Clause analysis "means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." (Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., supra, 511 U.S. at p. 99; Ben Oehrleins & Sons & Daughter v. Hennepin County (8th Cir. 1997) 115 F.3d 1372, 1383; Sherwin-Williams v. City & County of San Francisco (N.D.Cal. 1994) 857 F.Supp. 1355, 1365.) A law may discriminate against interstate commerce on its face, in its purpose, or in its effect. (Ben Oehrleins & Sons & Daughter v. Hennepin County, supra, at p. 1383.)
        Appellant relies on the United States Supreme Court opinion in C & A Carbone, Inc. v. Clarkstown (1994) 511 U.S. 383, (hereafter Carbone) to argue that the ordinance directly and discriminatorily burdens interstate commerce. In Carbone, the court declared invalid a municipal "flow control ordinance" that required all private nonhazardous waste to be processed at a single, designated transfer station. Under the flow control ordinance recyclers were forced to send sorted, nonrecyclable waste residue to the local transfer station for processing, for a "tipping fee," rather than ship it elsewhere. Only the local operator of the transfer station was authorized to perform the initial processing step. (Id., at pp. 388-389.) Even waste received by recyclers from out of state was necessarily destined for the local transfer station for processing, thereby increasing the costs of interstate disposal of solid waste. Focusing upon the "service of processing and disposing" of the solid waste rather than the garbage itself, the court found that "the flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town," (id., at p. 319) and deprives out-of-state competitors of access to a local market while increasing "the cost for out-of-state interests to dispose of their solid waste." (Id., at p. 389.) The essential discriminatory element of the "protectionist" flow control ordinance, the court declared, was that it "squelches competition in the waste-processing service altogether, leaving no room for investment from [the] outside." (Id., at pp. 392-393; see also SSC Corp. v. Town of Smithtown (2d Cir. 1995) 66 F.3d 502, 514; Atlantic Coast Demo. v. Bd. of Chosen Freeholders (3d Cir. 1995) 48 F.3d 701, 711-712; Condon v. Andino, Inc. (D.Me. 1997) 961 F.Supp. 323, 329-330; Atlantic Coast Demolition v. Chosen Freeholders (D.N.J. 1996) 931 F.Supp. 341, 345.)
        Appellant maintains that the ordinance under scrutiny here similarly regulates the "service" of garbage hauling to the benefit of respondent as the exclusive franchise operator, at the expense of interstate competitors. The fact that the ordinance may burden interstate companies, however, does not alone establish discrimination against interstate commerce. The Commerce Clause "protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations." (Exxon Corp. v. Governor of Maryland (1978) 437 U.S. 117, 127-128; Kleenwell Biohazard Waste v. Nelson (9th Cir. 1995) 48 F.3d 391, 397.) Unlike the flow control ordinance declared violative of the Commerce Clause in Carbone, the ordinance here regulates only solid waste generated and processed entirely "within the City." It imposes an exclusively intrastate restriction on the processing of waste. Moreover, the ordinance does not prevent citizens of the city from disposing of waste at any facility, even one located elsewhere and operated by an entity other than the collector. (Gary D. Peake Excavating v. Town Bd. of Hancock (2d Cir. 1996) 93 F.3d 68, 75.) And critically, out-of-state garbage collectors are not forced by the ordinance to purchase solid waste processing services from the local exclusive franchise provider. (Cf., Condon v. Andino, Inc., supra, 961 F.Supp. at p. 329.) Thus, it is not a flow control ordinance of the nature condemned in Carbone. (Gary D. Peake Excavating v. Town Bd. of Hancock, supra, at p. 75.)
        The ordinance is protectionist in its impact, but, in contrast to the legislation invalidated in Carbone, only at a local level, and so does not either increase or decrease the costs associated with interstate commerce in garbage collection. As the court in Ben Oehrleins & Sons & Daughter v. Hennepin County, supra, 115 F.3d at p. 1385, declared in upholding a flow control restriction on waste generated and processed entirely within the county: "This may create a monopoly at the local level, but as long as waste is allowed to flow freely in or out of the state, this does not constitute discrimination against interstate commerce."
        The ordinance also treats identically local and out-of-state garbage haulers. Both are effectively foreclosed from collecting or transporting garbage in the city if not designated as the "collector," and both may compete to obtain the exclusive franchise presently awarded to respondent. (Kleenwell Biohazard Waste v. Nelson, supra, 48 F.3d at pp. 397-398; Hass v. Oregon State Bar, supra, 883 F.2d at p. 1462.) Local processors and facilities are neither treated with more preference nor disadvantaged with respect to out-of-state competitors. The latter are not deprived of access to a local market. (Gary D. Peake Excavating v. Town Bd. of Hancock, supra, 93 F.3d at p. 75.) By the operation of the ordinance, all providers of trash collection services, wherever located, are treated "evenhandedly." (Sherwin-Williams v. City & County of San Francisco, supra, 857 F.Supp. at p. 1366.) "[T]here is no 'differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.' [Citation.]" (Ben Oehrleins & Sons & Daughter v. Hennepin County, supra, 115 F.3d at p. 1385.)
        In USA Recycling, Inc. v. Town of Babylon (2d Cir. 1995) 66 F.3d 1272, the Town of Babylon enacted a waste management plan that retained a single private company to collect all commercial garbage, and another to operate an incinerator to dispose of the waste. No other private companies, local or out-of-state, were entitled to collect or process garbage in the town. (Id., at p. 1275.) The court found that the Babylon waste management plan "differs dramatically" from the flow control ordinance "struck down by the Supreme Court in Carbone," and "does not discriminate in any way against interstate commerce." (Id., at p. 1283; see also Gary D. Peake Excavating v. Town Bd. of Hancock, supra, 93 F.3d at p. 75.)
        The ordinance here under consideration similarly does not prohibit the flow of interstate goods or services, place added costs on them, or distinguish between in-state and out-of-state companies in the retail market. Unlike laws found violative of the Commerce Clause, the ordinance does not have as its objective "local economic protectionism . . . that would excite those jealousies and retaliatory measures the Constitution was designed to prevent." (Carbone, supra, 511 U.S. at p. 390; Sherwin-Williams v. City & County of San Francisco, supra, 857 F.Supp. at p. 1366.) We accordingly conclude that the ordinance and the associated agreement by which respondent became the exclusive franchise collector of solid waste generated and transported within the city has no impermissible discriminatory effect upon interstate commerce. (Gary D. Peake Excavating v. Town Bd. of Hancock, supra, 93 F.3d at p. 75; USA Recycling, Inc. v. Town of Babylon, supra, 66 F.3d at p. 1283; Ben Oehrleins & Sons & Daughter v. Hennepin County, supra, 115 F.3d at p. 1385; Kleenwell Biohazard Waste v. Nelson, supra, 48 F.3d at p. 399.) We proceed to an examination of the incidental burden imposed by the ordinance upon interstate commerce balanced against the benefits derived from the legislation. (Id. at pp. 75-76.)

B. Balancing the Burdens and Benefits of the Ordinance.
        We must next balance the effects of the ordinance upon interstate commerce against the putative local benefits, and uphold the legislation unless the burden so imposed is "clearly excessive." (Pike v. Bruce Church, Inc. (1970) 397 U.S. 137, 142; Partee v. San Diego Chargers Football Co., supra, 34 Cal.3d at p. 382.) "The burden on interstate commerce will ordinarily be found unreasonable where the state regulation substantially impedes the free flow of commerce from state to state or governs 'those phases of the national commerce which, because of the need of national uniformity, demand their regulation, if any, be prescribed by a single authority.' (Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 767 [89 L.Ed. 1915, 1923, 65 S.Ct. 1515].) The commerce clause permits only incidental regulation of interstate commerce by the states; direct regulation is prohibited. (Edgar v. Mite Corp. [(1982)] 457 U.S. 624, 641-643 [73 L.Ed.2d 269, 282-283, 102 S.Ct. 2629, 2640-2641].)" (Partee v. San Diego Chargers Football Co., supra, 34 Cal.3d at pp. 382-383.)
        We must also be cognizant of the rule: "When a state statute regarding safety matters applies equally to interstate and intrastate commerce, the courts are generally reluctant to invalidate them even if they may have some impact on interstate commerce. (People v. Hutchinson [(1989)] 211 Cal.App.3d Supp. 9, 13.) In Bibb v. Navajo Freight Lines (1959) 359 U.S. 520, 524 [3 L.Ed.2d 1003, 1007, 79 S.Ct. 962], the United States Supreme Court embellished this rule by stating: 'These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field. Unless we can conclude on the whole record that "the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it" [citation] we must uphold the statute.' (Fn. omitted.)" (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1287; see also People v. Hutchinson (1989) 211 Cal.App.3d Supp. 9, 13-14.)
        The ordinance does not directly regulate interstate commerce, and we find that the incidental burden it imposes is not clearly excessive in relation to the benefits obtained. The regulation of solid waste collection by granting an exclusive franchise right is a proper exercise of the municipality's police power, and serves an important public interest by protecting against the hazards of indiscriminate or unsafe waste disposal. (Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, supra, 504 U.S. at pp. 360-361; Reduction Company v. Sanitary Works (1905) 199 U.S. 306, 320-321; USA Recycling, Inc. v. Town of Babylon, supra, 66 F.3d at p. 1293; Kleenwell Biohazard Waste v. Nelson, supra, 48 F.3d at pp. 399-400; Waste Resource Technologies v. Department of Public Health (1994) 23 Cal.App.4th 299, 310-311; City of Fresno v. Pinedale County Water Dist. (1986) 184 Cal.App.3d 840, 847.) The ordinance, as we have observed, treats indiscriminately local and out-of-state concerns, imposing the same restrictions on each. (Gary D. Peake Excavating v. Town Bd. of Hancock, supra, 93 F.3d at p. 76.) The incidental burdens placed upon interstate commerce do not exceed the legitimate public health and safety benefits conferred by the legislation. (Ibid.) Accordingly, the ordinance does not violate the dormant Commerce Clause doctrine. (Ibid.)

V. Equal Protection.
        Appellant's final argument, which is referred to only briefly and for the first time on appeal, is that the ordinance violates equal protection by favoring respondent over all other collectors of solid waste without any rational basis. "The equal protection clauses are found in the Fourteenth Amendment to the United States Constitution and section 7, subdivision (a) of article I of the California Constitution. The scope and effect of the two clauses is the same. (Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505].) [¶] The crux of the constitutional promise of equal protection is that persons similarly situated shall be treated equally by the laws. (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549].)" (In re Evans (1996) 49 Cal.App.4th 1263, 1270.)
        We need not reach the merits of appellant's equal protection claim. The appellate courts are loathe to decide constitutional questions unless compelled to do so. (In re Michael G. (1988) 44 Cal.3d 283, 295; People v. Marsh (1984) 36 Cal.3d 134, 144; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) The general rule is that a constitutional issue must be raised at the earliest opportunity in the trial court or will be considered waived on appeal, unless it presents a question of law upon undisputed facts in the record. (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476-1477; In re Tania S. (1992) 5 Cal.App.4th 728, 735; Lopez v. McMahon (1988) 205 Cal.App.3d 1510, 1520.) "The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) We must also presume the validity of governmental action; all doubts must be resolved in favor of the constitutionality of a challenged act. (Rains v. Belshé (1995) 32 Cal.App.4th 157, 170; Broadmoor Police Protection Dist. v. San Mateo Local Agency Formation Com. (1994) 26 Cal.App.4th 304, 309-310.) The one who makes a constitutional claim bears the burden of establishing that a fatal conflict with the Constitution clearly, positively and unmistakably appears. (In re York (1995) 9 Cal.4th 1133, 1152; People v. Hove (1992) 7 Cal.App.4th 1003, 1007; People v. Harris (1985) 165 Cal.App.3d 1246, 1255.) Appellant's failure to raise the equal protection argument in the trial court denied respondent the opportunity to present evidence to justify any classification made by the ordinance and renders the record inadequate to review the claim of constitutional defect. ⁶
        In any event, exclusive franchise arrangements for the provision of public services such as refuse collection have been consistently declared compatible with equal protection and due process principles. (See G. Fruge Junk Co. v. City of Oakland (N.D.Cal. 1986) 637 F.Supp. 422, 424-425; Waste Resource Technologies v. Department of Public Health, supra, 23 Cal.App.4th at pp. 310-311; Professional Engineers v. Department of Transportation (1993) 13 Cal.App.4th 585, 592; Gurtz v. City of San Bruno (1935) 8 Cal.App.2d 399, 400-401.) As the court declared when rejecting a constitutional claim that ordinances of "Oakland and San Leandro authorizing exclusive franchises for the hauling and disposal of non-recyclable solid waste are void as violative of the Fourteenth Amendment due process and equal protection clauses," (G. Fruge Junk Co. v. City of Oakland, supra, at p. 423) "no equal protection challenge lies. Exclusive franchising is rationally related to public health and environmental concerns, as it facilitates efficient regulation of potentially hazardous activities." (Id., at p. 425.)
        The judgment is affirmed. Costs are awarded to respondent.


We concur:
        Strankman, P.J.
        Dossee, J.


Trial Court:
        Alameda County Superior Court

Trail Judge:
        Sandra Margulies

Counsel for Defendant and Appellant:
        Joseph L. Casalnuovo
        Steefel, Levitt & Weiss
        Barry W. Lee
        Kevin D. Reese

Counsel for Plaintiff and Respondent:
        Otis & Hogan
        J. Morrow Otis
        Patrick J. Hogan

        Duane W. Dresser
        Crosby, Heafey, Roach & May
        John Smith
        Ezra Hendon



¹  All further statutory references are to the Public Resources Code unless otherwise indicated.
Section 40001 provides that "the responsibility for solid waste management is a shared responsibility between the state and local governments," and section 40002 further states that "it is in the public interest for the state, as sovereign, to authorize and require local agencies, as subdivisions of the state, to make adequate provision for solid waste handling . . . consistent with the policies, standards, and requirements of this division and all regulations adopted pursuant to this division." As pertinent here, section 40059, subdivision (a), specifically authorizes the implementation by local governmental agencies of either exclusive or nonexclusive franchises for the handling and disposal of solid waste, as follows: "Notwithstanding any other provision of law, each county, city, district, or other local governmental agency may determine all of the following: [¶] (1) Aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services. [¶] (2) Whether the services are to be provided by means of nonexclusive franchise, contract, license, permit, or otherwise, either with or without competitive bidding, or if, in the opinion of its governing body, the public health, safety, and well-being so require, by partially exclusive or wholly exclusive franchise, contract, license, permit, or otherwise, either with or without competitive bidding. The authority to provide solid waste handling services may be granted under terms and conditions prescribed by the governing body of the local governmental agency by resolution or ordinance."
Section 40059, subdivision (a)(2), "authorizes cities to grant exclusive franchises for solid waste handling services." (Waste Management of the Desert, Inc. v. Palm Springs Recycling Center, Inc. (1994) 7 Cal.4th 478, 481.)
²  The definitions found in the agreement are consistent with those stated in the ordinance, as are the described materials excepted from the scope of the exclusive franchise agreement. "Source separated recyclables" are defined in the ordinance and agreement as recyclables "that have been segregated from solid waste by or for the generator thereof on the premises at which they were generated for handling in a manner different from that of solid waste," but not loads that consist of (1) mixed paper and contain more than ten percent by weight of non-recyclable materials, or (2) commingled recyclables other than mixed paper and contain more than five percent by weight of non-recyclable materials.
³  Appellant states that the exhaustion issue was discovered "long after the motion for a preliminary injunction was heard, the order granting that motion filed, and notice of appeal filed." Appellant's failure to recognize the issue at trial does not excuse the failure to raise it, as the provisions of the ordinance delineating the administrative hearing procedures predated the initiation of the present action by respondent.
⁴  And in any event, we would find the supporting evidence offered by respondent for the most part admissible. The ordinance and agreement were proper subjects for judicial notice as requested by respondent, and were authenticated in declarations made by parties competent to testify. (Evid. Code, §§ 452, 453; Olson v. County of Sacramento (1974) 38 Cal.App.3d 958, 964; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 806; Mendez v. Pacific Gas & Elec. Co. (1953) 115 Cal.App.2d 192, 194-195; Adoption of McDonnell (1947) 77 Cal.App.2d 805, 808.) The statements made in the declarations of Johnson, Otis and McCaffery based upon their personal knowledge were admissible. (City of Vernon v. Superior Court (1952) 38 Cal.2d 509, 516.) Only the averments made by McCaffery based upon information and belief or hearsay statements made to him by third parties were inadmissible. (Bertuccio v. Superior Court (1981) 118 Cal.App.3d 363, 374; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 720-721; Kelsey v. Miller (1924) 66 Cal.App. 386, 389.)
⁵  Even discounting the inadmissible evidence in McCaffery's declaration we would find the injunction supported by substantial evidence.
⁶  We also decline to consider appellant's contention, made for the first time at oral argument, that the ordinance is unconstitutionally vague. Appellant waived the issue by failing to raise it in the trial court or in its opening brief. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322; Sacramento Cable Television v. City of Sacramento (1991) 234 Cal.App.3d 232, 244; California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419, 430.)