Relatively fresh off a legal victory over the City of San Bernardino involving similar contentions, Pepe’s Towing Services is suing the City of Rancho Cucamonga along with the County of San Bernardino, the San Bernardino County Sheriff’s Department, and seven individuals, alleging what the company’s lawyers characterize as the unfair and sudden termination of Pepe’s Towing’s towing services agreement with Rancho Cucamonga.
The other seven individuals being sued include San Bernardino County Sheriff’s Sergeant Gary Esmond and Chief of Police Donny Mahoney, Rancho Cucamonga City Manager John Gillison, City Attorney James Markman, Mayor Dennis Michael, and city council members Lynne Kennedy, Ryan Hutchison, Kristine Scott, and Sam Spagnolo. The San Bernardino County Sheriff’s Department provides the City of Rancho Cucamonga with contract law enforcement services by assigning a contingent of its personnel to serve as the city’s police department.
The complaint, which was filed in federal court against all parties on December 2, 2020, provides details of Pepe’s Towing’s claims, including violation of Pepe’s Towing’s First Amendment and Fourteenth Amendment rights.
The events at the center of the dispute began in 2018 when Chief Mahoney issued four reprimands to Pepe’s Towing within six weeks, alleging towing service agreement violations for being late to towing service requests which the company was required, under the towing services agreement, to respond to within 20 minutes. All four reprimands were successfully appealed and removed from Pepe’s Towing’s record.
After the successful appeal, Chief Mahoney unjustly and unfairly directed his deputies to favor the city’s other towing operators, according to the lawsuit.
Thereafter, several instances occurred where a large number of vehicles needed to be towed, and Pepe’s Towing was told it was only permitted to tow a fraction of what the other tow operators were allowed to tow despite the company’s availability and towing capacity, and the terms and requirements of Pepe’s Towing’s presence on the city’s tow rotation. When Pepe’s Towing lodged complaints about that action, the company’s towing services agreement was unilaterally terminated by the city.
“The City of Rancho Cucamonga and San Bernardino County Sheriff’s Department have a history of unfair and discriminatory practices against Pepe’s Towing,” said Manny Acosta, president and co-owner of Pepe’s Towing Services. “Despite abiding by protocols and our successful track record with numerous cities and law enforcement agencies, we have been targeted at the direction of Chief Mahoney.”
In late September, the City of San Bernardino settled a federal lawsuit brought against it by Pepe’s Towing in 2019 that alleged graft was a motivating factor in a series of decisions by succeeding city councils to confer no-bid tow contracts on six tow companies while excluding Pepe’s Towing from the city’s franchised towing rotation.
In 1999, Acosta, who inherited the company from his father, initiated an effort to obtain a position on the City of San Bernardino’s tow rotation. He renewed that effort in 2005, 2011 and 2016. Frustrated at every turn, Acosta persisted. Having found himself hemmed in and prevented from obtaining a franchise in the City of San Bernardino no matter how he approached the matter, Acosta on October 24, 2018 filed a federal lawsuit against the city and 13 individual defendants, including then-former City Manager Mark Scott, City Councilman James Mulvihill, then-City Manager Andrea Miller, City Councilman Fred Shorett, then-Mayor R. Carey Davis, San Bernardino Police Captain Paul Williams, then-City Councilman Benito J. Barrios, then-Police Chief Jarrod Burguan, then-City Councilman John Valdivia, then-Sixth District Councilwoman Bessine L. Richard, then-City Attorney Gary D. Saenz, then-City Councilwoman Virginia Marquez and then-former Chief Assistant City Attorney Jolena Grider.
The suit, filed in the U.S. District Court for the Central District of California, alleged the defendants violated the company’s rights of free speech and equal protection in the course of rejecting Pepe’s Towing’s efforts to contract with the city to handle police and code enforcement towing duties.
For years, the City of San Bernardino had rejected expanding its towing rotation beyond the group of six towing contractors that had a franchise. Acosta had been the most energetic of the tow company operators pressing the city to reopen the bidding process to all interested tow companies, of which, he maintained, his company was the most qualified.
As the federal suit against San Bernardino was progressing toward trial, Pepe’s Towing’s legal team armed itself with evidence and testimony to establish and prove that Pepe’s Towing had equipment and capability to match or exceed the towing ability and capability of all six of the San Bernardino’s franchised tow companies, which included City Towing, Hayes Towing, Wilson Towing, Big Z Towing, Armada Towing and Tri-City Towing. That evidence extended to multiple examples of the San Bernardino Police Department or city officials encountering circumstances in which the franchise holders were unable to handle towing assignments because of the size, weight and/or the configuration of the vehicles to be towed, after which Pepe’s Towing was brought in to clear a highway, street or roadway of the vehicle at issue in the dilemma.
The Sentinel is informed that Pepe’s Towing has secured information and materials to illustrate that at least some of the tow companies on Rancho Cucamonga’s franchised towing rotation have similarly fallen short of the city’s specified tow response time limits or otherwise failed to meet the criteria in their towing service agreements.
The complaint against the City of Rancho Cucamonga and its affiliated co-defendants states that San Bernardino County Sheriff’s Executive Director John Fogerty showed favoritism and made backdoor deals with other tow companies based on his relationships with the owners.
According to Pepe’s Towing, relaxed towing enforcement following COVID-19-related stay-at-home orders have made it even more difficult for tow companies to stay afloat, coupled with the fact that the City of Rancho Cucamonga has increased the monthly tow operator fees by $1,000 per month.
Pepe’s Towing’s complaint includes claims for violation of the equal protection clause of the Fourteenth Amendment; violation of the First Amendment right to free speech; a conspiracy to violate Pepe’s constitutional rights; failure to prevent the violation of Pepe’s constitutional rights; so-called Monell violations as final policymaker; Monell violations for failure to train the city’s law enforcement officers properly, supervisorial liability under §1983 of Title 42 of the United States Code relating to civil action for deprivation of rights; and Monell violations for ratification of the city’s policy.
The term Monell references the case of Monell v. Department of Social Services of the City of New York in which the U.S, Supreme Court held that a governmental entity can be held liable for the actions of its employees even if the governmental entity’s policies did not explicitly violate a litigant’s civil rights.
Efforts to get a response to the lawsuit by Rancho Cucamonga City Attorney James Markman were unsuccessful.