Pepes Towing Service vs City of San Bernardino

On October 24, 2018, the City of San Bernardino-based Pepe’s Towing Service filed a lawsuit in U.S. District Court for the Central District of California against the City of San Bernardino and 13 individual defendants. Each of the defendants are currently elected city officials and/or current or former city employees. Pepe’s alleges the defendants violated its rights of free speech and equal protection in the course of rejecting Pepe’s efforts to contract with the city to handle police and code enforcement towing duties. Among the individual defendants are City Councilmember John Valdivia and Mayor R. Carey Davis, both presently running for Mayor on November 6th of this year. The other individual defendants include current councilmembers, the city manager, the city attorney, the police chief, and several other current and former city employees. For years, the City of San Bernardino has refused to consider adding new tow companies to a group of six towing contractors. Pepe’s Towing Service’s owner and president Manny Acosta has been leading the effort to get the city to reopen the RFP process to new qualified tow companies. To stymie this effort, in 2005, the city instituted a new requirement, mandating that new city tow contractors have outdoor storage of at least 65,000 square feet. Four of the six present city towing contractors do not meet this requirement. It should be noted that this requirement affects only new tow contractors that contract with the city. The new requirement appeared to be a needless disqualifier for any new competition. The city did not apply this 65,000 square foot requirement to the existing tow contractors, just new ones that may apply, thereby grandfathering an exemption to the storage space requirement for existing tow contractors. (It should further be noted that one of the two complying tow contractors recently merged with another, non-contracting towing company to garner a combined, partially unpaved outdoor storage space of 65,000 square feet, achieving numerical compliance.) This new 65,000 square foot requirement forced any new tow contractors to compete on an uneven playing field with existing tow contractors and was apparently designed to ensure that no new towing companies could qualify as city tow contractors. In addition, Pepe’s alleges in the complaint that all six current tow contractors fail to comply with many key contract terms, including the Clean Water Act and other environmental laws. It is further alleged against the City of San Bernardino that the city retaliated against Pepe’s when Mr. Acosta brought these breaches of contract public and to the City’s attention. Pepe’s Towing Service seeks reconsideration of the decision not to reopen the RFP process, and of its application, and to enforce strict scrutiny of the contract terms and compliance upon existing tow contractors. The complaint also seeks to abolish the unnecessary and prohibitive 65,000 square foot requirement made applicable only to those who seek to qualify in the future for new towing contracts and to be evaluated in the RFP process on the same terms as all the current authorized tow contractors. The suit is Pepe’s, Inc. v. City of San Bernardino et al., 5:18-cv-2277 DDP (SPx). Pepe’s Towing Service is represented in the suit by Carmen A. Trutanich, the former City Attorney of the City of Los Angeles, now of the law firm Tucker Ellis LLP. For further information call Carmen A. Trutanich at 213-430-3003.