VALLEY MEDICAL TRANSPORT INC v. County of San Bernardino et al., Defendants and Respondents. (1997)

This case is the logical successor to our decision in County of San Bernardino v. City of San Bernardino (1995) 47 Cal.App.4th 1397, 46 Cal.Rptr.2d 209, review granted January 31, 1996 (S050179).   There we held that, under Health and Safety Code section 1797.201, a city or fire district which was providing any prehospital emergency medical services on June 1, 1980 may continue to do so unless and until it chooses to enter into a written agreement with the county;  it also may expand such services, and may provide a type of services, such as ambulance services, it was not previously providing.   We held further that, although the ambulance services provided by such a city or fire district are subject to the medical control of the county's local emergency medical services agency (local EMS agency), they are not subject to its power under Health and Safety Code section 1797.224 to create exclusive operating areas for ambulance service providers.¹

In County of San Bernardino v. City of San Bernardino, however, the city at issue never actually provided ambulance services itself, either on June 1, 1980 or at any other time;  it merely claimed the right to regulate the private provider of ambulance services assigned to it by the local EMS agency.

By contrast, in this case, the trial court found that defendant Apple Valley Fire Protection District (the District) was providing ambulance services on June 1, 1980.   In 1984, however, it sold its only ambulance and abandoned its role as a provider of ambulance services.   In 1985, defendant Inland Counties Emergency Medical Agency (ICEMA), the local EMS agency of defendant County of San Bernardino (the County), adopted a transportation plan which divided the county into exclusive operating areas for ambulance service providers.   ICEMA assigned the District's jurisdiction, plus certain other areas, to plaintiff Valley Medical Transport, Inc. (Valley).  In 1994, the District purchased two ambulances and declared itself the exclusive provider of ambulance services within its jurisdiction.   The trial court essentially found that the District was estopped to assert the right it would otherwise have under Health and Safety Code 1797.201 to resume providing ambulance services.

Because County of San Bernardino v. City of San Bernardino is currently under Supreme Court review, Valley urges us to revisit our holdings there, and to hold instead that counties and local EMS agencies have the exclusive right and power to authorize and regulate ambulance service providers.   We decline to do so.  County of San Bernardino v. City of San Bernardino, however, did not raise, and we therefore did not address, any issue of estoppel or any other equitable defense.   Valley, the County and ICEMA all urge us to uphold the trial court's finding of estoppel here.   We agree that this factor distinguishes County of San Bernardino v. City of San Bernardino.   We also agree that, even though the District is a public agency and there is a higher standard for applying estoppel against the government, the trial court could properly find it estopped.   Accordingly, we will affirm.

I

THE STATUTORY SCHEME

In 1980, the Legislature enacted the Emergency Medical Services System and Prehospital Emergency Medical Care Personnel Act (the EMS Act).  (§ 1797 et seq.)   The stated purpose of the EMS Act is “to provide the state with a statewide system for emergency medical services․”  (§ 1797.1.)   It does so primarily by establishing the state Emergency Medical Services Authority (the Authority), which is responsible for coordinating and integrating all state activities concerning emergency medical services.  (§§ 1797.1, 1797.100.)

On the local level, “[e]ach county may develop an emergency medical services program.”  (§ 1797.200.)   However, any county which elects to do so must designate a local EMS agency.   This may be the county health department, a separate entity established by the county, an entity with which the county contracts, or a joint powers agency.  (Ibid.)  The local EMS agency must “plan, implement, and evaluate an emergency medical services system․”  (§ 1797.204.)

As part of its local EMS plan, “[a] local EMS agency may create one or more exclusive operating areas․”  (§ 1797.224.)   An “exclusive operating area” is an area “defined by the emergency medical services plan for which a local EMS agency, on the recommendation of a county, restricts operations to one or more emergency ambulance services or providers of limited advanced life support or advanced life support.”  (§ 1797.85.)  Section 1797.224, however, expressly provides, “Nothing in this section supersedes Section 1797.201.”

Section 1797.201 provides, in pertinent 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.”

II

FACTUAL BACKGROUND

As of June 1, 1980, the primary provider of ambulance services in the Apple Valley area was Valley's predecessor in interest, McCormick Ambulance Service (McCormick).²  The District had a “rescue squad” vehicle, Unit 4675.   Unit 4675 was capable of functioning as an ambulance, and the District did occasionally use it to provide ambulance services, although generally only if a McCormick ambulance was not available.   The District also provided emergency medical services consisting of “first responder” basic life support.

Following the passage of the EMS Act, the County entered into a joint powers agreement with Inyo and Mono Counties by which they created ICEMA.

In 1984, the Legislature amended the EMS Act so as to permit a local EMS agency to create exclusive operating areas.  (§ 1797.224;  Stats.1984, ch. 1349, § 3.)   Thereafter, the County Board of Supervisors authorized the County Health Officer, Dr. George Pettersen, to draft the transportation element of the County's local EMS plan (the Transportation Plan).   Dr. Pettersen and Assistant County Counsel Roger Kehew “pretty well wrote the plan together,” although they obtained “a lot of input from other people.”   Dr. Pettersen also consulted with the County's Emergency Medical Care Committee (see §§ 1797.270-1797.276), and kept it advised throughout the drafting process.   The Emergency Medical Care Committee was comprised of representatives of all the different types of emergency medical service providers, including “hospitals, doctors, nurses, paramedics, fire chiefs, cities, [and] teaching institutions․”  Each member was expected to report back to his or her constituents.

On November 13, 1984, the District's board of directors declared Unit 4675 surplus and directed that it be sold.   There was contradictory testimony with respect to whether the District held a public hearing on this decision.   In place of Unit 4675, the District purchased a new rescue squad vehicle, Unit 4680, which had no gurney and therefore no capacity to transport patients.

The District continued to provide “first responder” basic life support.   In 1988, it upgraded its emergency medical services to the EMT-D (defibrillator) level, and around 1994, to the EMT-P (paramedic) level.

In 1985, the County adopted the Transportation Plan.   It divided the County up into exclusive and nonexclusive operating areas, and assigned providers of ambulance services to them.   To the extent possible, existing providers were assigned to the areas where they were already operating.   Any entity, public or private, which had been providing ambulance services continuously since January 1, 1981 was “grandfathered in.”  (See § 1797.224.)   On this basis, the Transportation Plan assigned Exclusive Operating Area No. 12, including the District's jurisdiction, to Valley.   No operating area was assigned to the District because it was not providing ambulance services.

ICEMA submitted the Transportation Plan to the state Authority for approval, as required (see § 1797.224), and in December 1985, the Authority approved it.

The District was aware of the Transportation Plan when it first came out.   When its board members learned of it, “[they] weren't involved in ambulance services, so [they] weren't too concerned about it.”   From 1986 through 1993, the District let Valley keep its ambulances and personnel in District fire stations.   The District never objected to the fact that it had not been designated to provide ambulance services.   The District claimed it had no reason to do so, because it had the independent authority to provide ambulance services.

Around 1994, the District began to consider providing ambulance services.   On May 12, 1994, the District enacted an ordinance declaring itself the exclusive provider of emergency ambulance services within its boundaries.

The Transportation Plan required Valley to serve not only Apple Valley, but also the unprofitable area of Needles.   Valley could not profitably serve the exclusive operating area if it did not include Apple Valley.   Accordingly, the County and ICEMA believed the District's assertion of an exclusive right to provide ambulance services in Apple Valley threatened the integrity of the local EMS system, and interrupted the systematic provision of emergency medical services.

III

PROCEDURAL BACKGROUND

On July 13, 1994, Valley filed a complaint against the District and its Board of Directors, the County, and ICEMA, including causes of action for declaratory and injunctive relief.

The case was tried to the court, with an advisory jury.   On April 26, 1995, the jury returned a special verdict finding that:  (1) on June 1, 1980, the District was providing ambulance services;  (2) in 1985, the District was not aware of the County's creation of a Transportation Plan which established exclusive operating areas for providers of ambulance services;  and (3) when the District disposed of its only ambulance, it abandoned its role as a provider of ambulance services.

On August 21, 1995, the trial court issued a statement of decision.  (Code Civ. Proc., § 632.)   It recapitulated the jury's findings, then additionally found “that the District knew of the County's [T]ransport[ation] [P]lan ․ shortly after the plan was adopted by the County and that the District did not object to the plan or seek to have the District designated as an ambulance transport provider until 1993.”   It ruled that Valley was the sole and exclusive provider of ambulance services in the exclusive operating area, and it enjoined the District from “providing ambulance transport services within said exclusive operating area․”

On September 5, 1995, the District filed a motion for reconsideration.   (Code Civ. Proc., § 1008.)

On October 2, 1995, the trial court entered judgment in accordance with its statement of decision.

On October 5, 1995, in response to the District's motion for reconsideration, the trial court amended its statement of decision so as to add an express finding by the court that the District had abandoned its role as a provider of ambulance services in 1984.

On December 1, 1995, the District filed a timely notice of appeal.

IV

THE STATUTORY ALLOCATION OF AUTHORITY AS BETWEEN THE DISTRICT AND THE COUNTY

The District contends that because it was providing prehospital emergency medical services, and specifically ambulance services, on June 1, 1980, it is entitled to do so now under section 1797.201.

The District relies heavily on our opinion in County of San Bernardino v. City of San Bernardino, supra.   Because the Supreme Court has granted review in that case, it is no longer precedential authority.  (Rules 976(d), 977(a), Cal. Rules of Court.)   Nevertheless, unless and until the Supreme Court issues its own opinion in the case, the views we expressed there remain unchanged;  if we were to consider the issues afresh, we would reach the same conclusions.   Those conclusions, however, offer the District less support than it seems to believe.

Firefighting, police, and ambulance services are traditional municipal functions, administered by the local municipality.  (Gov.Code, § 54980.)   The Fire Protection District Law of 1987 clearly states a legislative intent to preserve local fire district control over emergency medical services (§ 13801), and it specifically authorizes fire districts to provide emergency medical services and ambulance services pursuant to the EMS Act.  (§ 13862, subds.(c), (e).)   Reading section 1797.201 in accordance with its plain meaning,³ it preserves this historic right of cities and fire districts by permitting cities and fire districts which provided prehospital emergency medical services on June 1, 1980 to continue to do so unless and until they request and enter into an agreement to have the county provide such services.

Section 1797.201 specifically entitles such cities and fire districts to “retain[ ]” the “administration” of prehospital emergency medical services.   The power to administer prehospital emergency medical services includes the power to provide ambulance services.   Although section 1797.201 expressly prohibits a city or fire district from reducing the level of emergency medical services it was providing on June 1, 1980 without both a public hearing and a finding of necessity, it does not expressly or impliedly prohibit a city or fire district from increasing its level of emergency medical services.

Accordingly, in County of San Bernardino v. City of San Bernardino, supra, we held that a city which was providing prehospital emergency medical services, although not ambulance services, on June 1, 1980 would have the right to begin providing ambulance services, even though the county had assigned it to another provider of ambulance services as an exclusive operating area.  County of San Bernardino v. City of San Bernardino, supra, did not involve a prohibited reduction in the level of prehospital emergency medical services.   Moreover, our opinion did not consider or address the equitable estoppel, waiver and laches issues presented here.

As the parties agree, the judgment here is premised on the finding that “the District abandoned emergency ambulance transport services in November of 1984,” ⁴ and on the legal effect of this finding under equitable principles of estoppel, waiver and laches.   The trial court's statement of decision did not clearly speak to whether the District engaged in a prohibited reduction in the level of prehospital emergency medical services.   For example, it contains no finding on whether the District did in fact hold a public hearing.   We find that we can resolve this case based on estoppel alone.   For these reasons, we do not address the question of whether the judgment could be upheld on the theory that the District violated section 1797.201.⁵

 We therefore assume that, because the District was providing prehospital emergency medical services, including ambulance services, on June 1, 1980,⁶ even though it stopped providing ambulance services thereafter, it had a statutory right to resume providing them.   Even a statutory right, however, may be waived or otherwise equitably barred.   Otherwise, the District could stop providing ambulance services, forcing others to provide them in its stead, yet assert an absolute right to resume providing them 10, 50 or 100 years later regardless of any intervening equities.   We therefore turn to whether estoppel applies.

V

ESTOPPELA. Elements of Equitable Estoppel.

The District contends that the necessary elements of estoppel were not shown by substantial evidence.

 The “[e]xistence of estoppel is generally a question for the trier of fact and the trial court's determination is binding on appeal unless the contrary conclusion is the only one to be reasonably drawn from the facts.   [Citations]” (Common Wealth Ins. Systems, Inc. v. Kersten (1974) 40 Cal.App.3d 1014, 1026, 115 Cal.Rptr. 653.)

 “ ‘Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel:  (1) the party to be estopped must be apprised of the facts;  (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended;  (3) the other party must be ignorant of the true state of facts;  and (4) he must rely upon the conduct to his injury.’ ”   (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489, 91 Cal.Rptr. 23, 476 P.2d 423, quoting Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal.Rptr. 661, 431 P.2d 245.)

 The conduct raised here as the basis of an estoppel is the District's abandonment of its role as provider of ambulance services, and its acquiescence in ICEMA's designation of Valley as provider of ambulance services in the exclusive operating area.   It is important to remember that the Transportation Plan essentially froze each existing provider's service area.   This burdened existing providers, by preventing them from dropping areas which were, or might later become, unprofitable.   In return, however, it benefited existing providers by insulating them against competition in more profitable areas.

Section 1797.224 (dealing with exclusive operating areas) is expressly made subject to section 1797.201 (dealing with the right of cities and fire districts to continue to administer emergency medical services).   This means that when a local EMS agency is assigning exclusive operating areas, it must take into account the fact that a fire district within its jurisdiction is continuing to provide ambulance services pursuant to section 1797.201.   The statutory scheme, however, does not require the local EMS agency to take into account a fire district which has not continued to provide ambulance services.   Otherwise, the local EMS agency would have to draft two sets of exclusive operating areas, one to govern if the fire district resumes providing ambulance services, and another if it does not.   If the plan embraces multiple such cities or fire districts, the difficulty would be correspondingly multiplied.   Even if the task were possible, we do not believe it is reasonable to demand it.

Here, if the District resumed providing ambulance services, it would destroy the careful economic balance struck in the Transportation Plan.   The trial court accepted the jury's finding that the District was not aware of the Transportation Plan when it was being drafted.   However, the trial court also found that the District learned of the Transportation Plan “shortly after the plan was adopted,” and this finding was supported by substantial evidence.   The District's conduct therefore was inconsistent with an intent to resume providing ambulance services in the foreseeable future.   It amounted to an implicit representation that the District had no such intent.

Nevertheless, the District secretly harbored the reservation that it might resume providing ambulance services.   Chief Lewis testified that the District did not seek to be named as a provider of ambulance services in the Transportation Plan because it believed that, despite the plan, it could resume providing ambulance services at any time.   Almost by definition, the District was apprised of its own true intent.   The District claims it had no intention of inducing anyone else to act, but this is not required;  the District knew or should have known that ICEMA and Valley would act on it, and they had a right to believe its conduct was so intended.

On the other hand, ICEMA and Valley were unaware of the District's intent.   Moreover, they relied on the District's conduct-ICEMA, by drafting, adopting and implementing the Transportation Plan, and Valley, by committing itself to serve the entire exclusive operating area.   The District argues that Valley did not rely because it was providing ambulance services in Apple Valley both before and after the District sold its only ambulance and ICEMA adopted the Transportation Plan.   There was no evidence, however, that Valley was previously serving Needles;  even if there were, it was shown by undisputed evidence that the Transportation Plan required Valley to serve Needles, so it could no longer withdraw from that area at will.

 In a footnote, the District points out that neither the County nor Valley pleaded estoppel, and argues that estoppel was therefore waived.   We disagree.  “It is well settled ․ that variance between pleadings and proof is not a basis for reversal unless it prejudicially misleads a party.   A variance must be disregarded if the issues on which the decision is actually based were fully and fairly tried.  [Citations.]”  (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143-144, 181 Cal.Rptr. 732, 642 P.2d 792.)   Here, the trial brief filed by the County and ICEMA frankly posited estoppel, waiver and laches as the major, determinative issues in the case.   Although the District did move in limine to preclude evidence of estoppel, that motion was not made on the ground that estoppel had not been pleaded.   The parties were well aware that the trial court would consider estoppel.   The District does not even attempt to claim it was prejudiced;  clearly it was not.

 The District also argues that it can be estopped, if at all, only as against Valley, the sole plaintiff, and not as against the County or ICEMA, its codefendants.   The District's conduct, however, constituted an implied representation to Valley as well as to ICEMA.   Moreover, it is fairly inferable from the evidence that Valley knew of the District's conduct, justifiably believed it could rely on it, and did rely on it.

 In any event, Valley's primary cause of action was for declaratory relief.   Under the declaratory relief statute, “in cases of actual controversy relating to the legal rights and duties of the respective parties,” “the court may make a binding declaration of those rights and duties․”  (Code Civ. Proc., § 1060.)  “In an action for declaratory relief, the proper function of the court is to make a full and complete declaration, disposing of all questions of rights, status or other legal relations encountered․  [Citations.]”  (American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 219, 246 P.2d 935;  Estate of Friedman (1979) 100 Cal.App.3d 810, 818, 161 Cal.Rptr. 311.)

 “ ‘ “It is fundamental that equity, having taken jurisdiction, will grant complete relief.   This is especially true in a declaratory judgment action.” ’ ”  (Hunt v. Smyth (1972) 25 Cal.App.3d 807, 830, 101 Cal.Rptr. 4, quoting Bisno v. Sax (1959) 175 Cal.App.2d 714, 729, 346 P.2d 814, quoting Petersen v. Ridenour (1955) 135 Cal.App.2d 720, 727, 287 P.2d 848.)  “The trial court has discretion as to the extent of the relief to be afforded in a proceeding for declaratory relief․”  (Record etc. Co. v. Pageman Hold. Corp. (1954) 42 Cal.2d 227, 234, 266 P.2d 1.)   Where necessary to do complete justice, the court in a declaratory relief action may adjudicate a defendant's rights as well as a plaintiff's.  (Ibid.)

Although both the County and ICEMA were nominally defendants, their interests were aligned with Valley's and adverse to the District's.   Under the circumstances, the trial court could appropriately adjudicate the defendants' rights not only vis à vis the plaintiff, but also vis à vis each other.   Accordingly, it could properly hold the District estopped based on representations made to the County or ICEMA.

B. Estoppel Against a Public Agency.

The District contends that, under the higher standard for estoppel against a public agency, it cannot be estopped from exercising its statutory power to provide ambulance services.

 “The doctrine of estoppel is available against the government ‘ “where justice and right require it.” ’  [Citation.]”  (Robinson v. Fair Employment & Housing Com. (1992) 2 Cal.4th 226, 244, 5 Cal.Rptr.2d 782, 825 P.2d 767, quoting Lentz v. McMahon (1989) 49 Cal.3d 393, 399, 261 Cal.Rptr. 310, 777 P.2d 83, quoting City of Los Angeles v. Cohn (1894) 101 Cal. 373, 377, 35 P. 1002.)   However, “estoppel will not be applied against the government if to do so would nullify a strong rule of policy adopted for the benefit of the public.”  (Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, 994-995, 4 Cal.Rptr.2d 837, 824 P.2d 643;  accord Lentz v. McMahon supra, 49 Cal.3d at p. 399, 261 Cal.Rptr. 310, 777 P.2d 83;  City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 493, 91 Cal.Rptr. 23, 476 P.2d 423.)   “The tension between these twin principles makes up the doctrinal context in which concrete issues are decided.”  (City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 493, 91 Cal.Rptr. 23, 476 P.2d 423.)

 The Supreme Court has “adopted a balancing approach to accommodate these concerns:  ‘The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.’  [Citation.]”  (Lentz v. McMahon, supra, 49 Cal.3d at p. 400, 261 Cal.Rptr. 310, 777 P.2d 83, quoting City of Long Beach v. Mansell, supra, 3 Cal.3d at pp. 496-497, 91 Cal.Rptr. 23, 476 P.2d 423.)

 The application of this balancing approach “is not solely a question of fact.   Whether the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify the effect of the estoppel on the public interest must be decided by considering the matter from the point of view of a court of equity.  [Citation.]”  (Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770, 776, 9 Cal.Rptr.2d 120.)

The District relies on an asserted public policy of local control of ambulance and other emergency medical services.   However, while a fire district may provide ambulance services (§ 13862, subd. (e);  see also former § 13853, repealed eff. Jan. 1, 1988), it is not statutorily required to do so;  it could choose not to provide ambulance services, as the District did in 1984.  “[T]his is not a case where the governmental agency ‘utterly lacks the power to effect that which an estoppel against it would accomplish.’  [Citation.]”  (Crumpler v. Board of Administration (1973) 32 Cal.App.3d 567, 584, 108 Cal.Rptr. 293, quoting City of Long Beach v. Mansell, supra, 3 Cal.3d at p. 499, 91 Cal.Rptr. 23, 476 P.2d 423.)

A fire district can enter into a contract with another entity to provide ambulance services on its behalf.  (Pub. Contract Code, § 20811.)   Moreover, counties with a population of 1,000,000 or more (§ 1444), community service districts (Gov.Code, § 61600, subd. (m)), police protection districts (§ 20025), hospital districts (§ 32121, subd. (l)), municipal hospitals (Gov.Code, § 37615.1, subd. (g)), and, to some extent, cities (Gov.Code, § 38794), also may provide ambulance services.   And-aside from the EMS Act's exclusive operating area provision-we know of no law against setting up and operating a private ambulance company.   Thus, the District is not somehow impermissibly delegating an inherently governmental power.

The District also relies on section 1797.201 itself as the critical public policy.   That section, however, only preserves a fire district's right to administer emergency medical services if that fire district was providing emergency medical services on June 1, 1980.   Plainly, it is a “grandfather” clause;  it does not embody a public policy of having all fire districts administer emergency medical services.   In addition, it expressly allows even a fire district which was providing emergency medical services on June 1, 1980 to enter into a written agreement ceding its right to administer emergency medical services to the county.   Applying estoppel here does not do violence to any public policy underlying section 1797.201.

We also think the fact that the District is not the only public agency involved here deserves some weight in the Mansell balance.   Two public agencies, the County and ICEMA, are attempting to apply estoppel against a third.   In so doing, they, too, seek to vindicate public policies-their authority to regulate emergency medical services in general (see, e.g., §§ 1797.94, 1797.105, subd. (b), 1797.178, 1797.200, 1797.204, 1797.220, 1797.222), and to establish and to enforce exclusive operating areas in particular. (§ 1797.224.) ⁷

Accordingly, applying estoppel against the District has a minimal impact on any public interest or policy.   On the other hand, if we were to refuse to apply estoppel, the District could resume providing ambulance services despite its voluntary failure to do so for nearly 10 years.   Indeed, under the District's theory, it could resume providing ambulance services after a lapse of 50 or even 100 years.   This would be unjust to Valley, because it would deprive it of the Apple Valley market which it was relying on to offset its losses in the relatively unprofitable Needles market.   Even more important, it would be unjust to the County, ICEMA, and their constituents, because it would upset the careful balance struck in assigning exclusive operating areas in the Transportation Plan, and would jeopardize the provision of ambulance services and other emergency medical services pursuant to the plan.

The District asserts that “estoppel may never be invoked to contravene constitutional and statutory provisions that define an agency's power to act.”   Although similar statements may be found in Witkin (11 Witkin, Summary of Cal. Law (9th ed.   1990) Equity, § 184 at p. 866) and even in some cases (Garamendi v. Mission Ins. Co. (1993) 15 Cal.App.4th 1277, 1289, 19 Cal.Rptr.2d 190), this is not so much a prescriptive rule as a description of the typical result of the Mansell balancing approach.  Mansell itself belies this supposed rule;  there, the Supreme Court applied estoppel to prevent public entities from asserting paramount title to tidelands, even though they held them in public trust and were constitutionally forbidden to alienate them.  (3 Cal.3d at pp. 493-501, 91 Cal.Rptr. 23, 476 P.2d 423.)

Admittedly there is some authority for a general rule that estoppel cannot be used to expand a public agency's powers.  (Boren v. State Personnel Board (1951) 37 Cal.2d 634, 643, 234 P.2d 981;  Wilshire Ins. Co. v. Garamendi (1992) 5 Cal.App.4th 1573, 1581, 8 Cal.Rptr.2d 55;  Crumpler v. Board of Administration, supra, 32 Cal.App.3d at p. 580, 108 Cal.Rptr. 293.)   Numerous cases, however, have upheld the use of estoppel to restrict a public agency's powers-to prevent it from doing that which it would otherwise be authorized to do.  (E.g., Lentz v. McMahon, supra, 49 Cal.3d 393, 261 Cal.Rptr. 310, 777 P.2d 83 [welfare agencies may be estopped from recouping overpayments to welfare recipients].)

We need not hold that the District is permanently estopped from providing emergency ambulance services.   For example, if ICEMA determined to redo the Transportation Plan and to redraw the exclusive operating areas, presumably any reliance on the District's conduct would be at an end;  hence, so would any need for estoppel.   Subject to questions we need not resolve today-whether the District reduced its level of emergency medical services without a public hearing, and, if so, whether it thereby forfeited its rights under section 1797.201-it would seem the District could reassert those rights, and resume providing ambulance services.

We therefore see no reasonable possibility that the trial court's decision will leave the citizens of Apple Valley wholly without emergency ambulance services.   It will not frustrate any public policy designed to protect public health and safety.   We conclude that the trial court properly applied estoppel.

VI

ESTABLISHMENT OF EXCLUSIVE OPERATING AREAS BY THE COUNTY RATHER THAN BY THE LOCAL EMS AGENCY

 The District contends the exclusive operating area was illegal because it was established by the County rather than by ICEMA.

Valley relies on Memorial Hospitals Assn. v. Randol (1995) 38 Cal.App.4th 1300, 45 Cal.Rptr.2d 547.   There, a county had designated its department of public health as the local EMS agency.  (Id., at p. 1304, 45 Cal.Rptr.2d 547.)   The county's board of supervisors voted to establish an exclusive operating area for air ambulance services, and authorized the local EMS agency to implement it.  (Ibid.)  A referendum against the board's action was circulated, and garnered enough signatures to be placed on the ballot.   (Id., at p. 1304, 45 Cal.Rptr.2d 547.)   Cross-petitions for writ of mandate were filed, one to force elections officials to place the referendum on the ballot, and one to force them not to.  (Id., at p. 1305, 45 Cal.Rptr.2d 547.)

The appellate court therefore defined the issue as whether the referendum was valid.  (Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at p. 1307, 45 Cal.Rptr.2d 547.)   It rejected the “false premise” that “the Board's action constituted legislative enactment of an EOA.   The Board is not authorized by statute to establish an EOA;  only the local agency can do so.”   (Id., at p. 1310, 45 Cal.Rptr.2d 547.)  “The EMS Act unequivocally establishes that only the local agency can establish an EOA.   Not only does section 1797.224 expressly provide that ‘a local EMS agency’ may create such areas, but in the very definition of ‘exclusive operating area’ the EMS Act provides that it is an area ‘for which a local EMS agency ․ restricts operations to one or more emergency ambulance services․'  (§ 1797.85.)   It is apparent that, by requiring the EOA decision to be made by the local agency, which is in turn required to have a physician as its medical director, [ ⁸ ] the Legislature sought to make the EOA decision a professional, not a political, determination.”  (Ibid.)

The court noted the appellant's contention that the board had violated these principles by “actually and directly establish[ing] an EOA” (Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at p. 1310, 45 Cal.Rptr.2d 547), but held that, even if so, a referendum was improper:  “The referendum power does not permit the establishment of a ‘jury’ of the electorate to pass on the legality of the governing body's action;  rather, referendum permits the establishment of a ‘legislature’ of the entire electorate to pass upon the wisdom of action lawfully taken by the governing body.  [¶] Accordingly, if a board of supervisors impermissibly usurps the powers of a local agency and actually adopts an EOA, that action properly could be challenged in legal proceedings, not in a referendum.   If a local agency failed to actually exercise its statutory discretion, instead blindly approving the EOA recommendation of a board of supervisors, a petition for writ of mandamus, not petitions for a referendum, would be appropriate.  [Citation.]”  (Id., at pp. 1310-1311, 45 Cal.Rptr.2d 547.)

In a footnote, the court cautioned:  “We are not confronted in this case with questions about the exact nature of the ‘recommendation’ relationship between the Board and the local EMS agency.   Accordingly, we intimate no views on that subject.”  (Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at p. 1311, fn. 7, 45 Cal.Rptr.2d 547.)

Preliminarily, we do not believe the record is adequate to demonstrate that the County, rather than ICEMA, in fact adopted the Transportation Plan.   The County Board of Supervisors merely authorized Dr. Pettersen to prepare the transportation plan.   Dr. Pettersen, however, as County Health Officer, was also chief administrative officer of ICEMA.⁹  He drafted the Transportation Plan with the assistance of County Counsel, who similarly was, ex officio, the attorney for ICEMA.¹⁰

The Transportation Plan recites that on May 20, 1985, the County Board of Supervisors “requested adoption” of a transportation plan.   It was then adopted on June 18, 1985, evidently by Dr. Pettersen.   Although Dr. Pettersen did testify at one point that the Transportation Plan was adopted by “the County,” he later clarified this, testifying:  “The approval by the County was not by the Board of Supervisors.   The Board of Supervisors gave me the authority to write and produce and implement a Transportation Plan ․, which I did.”   Thus, the evidence seems consistent with the procedure prescribed by the EMS Act, in which the county may recommend the creation of exclusive operating areas, but it is up to the local EMS agency actually to create them. (§§ 1797.85, 1797.224.)

As an alternative ground for our decision, however, we believe that, even if there were substantial evidence that the County Board of Supervisors formally adopted the Transportation Plan, the plan would nevertheless be valid.   The suggestion of the court in Memorial Hospitals that a county can recommend, but cannot adopt, an exclusive operating area, and that a local EMS agency must exercise an independent discretion in acting on the county's recommendation, was, of course, dictum.   As the court's footnote indicated, it was not called upon to decide whether the county's acts were unlawful;  the only issue before it was whether those acts, even if unlawful, could be challenged by referendum.

The Legislature has expressly permitted a county to designate its own health department as its local EMS agency.  (§ 1797.200.)   A county health department is not an entity separate from the county.   It is necessarily-indeed, quite appropriately-under the control of the county's board of supervisors.   (Gov.Code, §§ 24000, subd. (s), 25303.)

Similarly, the Legislature has permitted a county to designate a joint powers agency as its local EMS agency.  (§ 1797.200.)   In so doing, the Legislature necessarily had reference to the provisions of the Joint Exercise of Powers Act (Gov.Code, § 6500 et seq.), which permits two or more public agencies to enter into a joint powers agreement.  (Gov.Code, § 6502.)   The parties to a joint powers agreement may establish a joint powers agency to conduct the activity contemplated by the agreement.  (Gov.Code, § 6506.)   Although a joint powers agency “is a public entity separate from the parties to the agreement,” (Gov.Code, § 6507), the governing body of the joint powers agency, subject to exceptions not applicable here, “may ․ be composed exclusively of officials elected to one or more of the governing bodies of the parties to such agreement.”  (Gov.Code, § 6508.)   Here, the governing body of ICEMA was the County Board of Supervisors.

In sum, the EMS Act clearly contemplates that a local EMS agency may be subject to the control-including the political control-of the county.   Although a local EMS agency must have a physician as its medical director, the medical director need not be a member of the agency's governing body, nor must he or she necessarily be its chief executive officer.   The Legislature gave the medical director veto power over certain decisions of a local EMS agency (e.g., §§ 1797.220, 1798.100, 1798.101, 1798.105), but not over the decision to establish an exclusive operating area.

The joint powers agreement lawfully made the County Board of Supervisors the governing body of ICEMA.   Thus, the County Board of Supervisors could lawfully adopt the Transportation Plan and establish exclusive operating areas.   Even if it did so while wearing its County “hat” instead of its ICEMA “hat,” we cannot see why this technicality should invalidate its acts.   Although public agencies with overlapping boards technically are distinct entities (Pacific States Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1423-1425, 17 Cal.Rptr.2d 68 [demurrer where plaintiff named wrong defendant];  Riverside etc. Dist. v. Joseph W. Wolfskill Co. (1957) 147 Cal.App.2d 714, 717-718, 306 P.2d 22 [venue];  County of L.A. v. Continental Corp. (1952) 113 Cal.App.2d 207, 219-220, 248 P.2d 157 [res judicata] ), the distinction may be overlooked where it serves no purpose.  (See Carlino v. Los Angeles County Flood Control Dist. (1992) 10 Cal.App.4th 1526, 1533-1535, 13 Cal.Rptr.2d 437 [notice of tort claim];  Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 75, 135 Cal.Rptr. 621 [same].)

The trial court therefore correctly concluded that, at least on these facts, “[w]hether the County or the local EMS agency adopts the [T]ransportation [P]lan is a distinction without a difference.”

VII-IX**

X

DISPOSITION

The injunctive portion of the judgment is modified so as to enjoin the District from providing emergency ambulance services within Valley's exclusive operating area absent a contract with ICEMA or the County to provide such services.   As so modified, the judgment is affirmed.

FOOTNOTES

1.   All further statutory citations are to the Health and Safety Code unless otherwise indicated.

2.   The County and ICEMA assert that as of June 1, 1980, McCormick was the sole provider of advanced life support in the area.   The record does not support this.   Actually, McCormick, like the District, was providing only basic life support at that time.

3.   The District has requested judicial notice of certain documents pertaining to the legislative history of the EMS Act. Valley opposed the request, arguing that (1) the documents are irrelevant, (2) the documents were not presented to the trial court, and (3) one of the documents, a letter from the League of California Cities to the author of the EMS Act, is not judicially noticeable.Judicial notice of the letter is denied.  (See Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 2, 32 Cal.Rptr.2d 244, 876 P.2d 1043, cert. den. (1995) 513 U.S. 1184, 115 S.Ct. 1176, 130 L.Ed.2d 1129.)   The remaining documents are of the type we ordinarily consider in addressing questions of legislative intent.   Accordingly, we take judicial notice of them.  (Evid.Code, §§ 452, subds.(a), (c), 459, subd. (a);  People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, fn. 1, 53 Cal.Rptr.2d 789, 917 P.2d 628.) We find them, however, “not inconsistent with our resolution of the case”;  we therefore do not “strain to find an ambiguity in the statutory language which would permit us to interpret [the EMS Act] in accordance with presumed legislative intent.”  (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1512, fn. 6, 11 Cal.Rptr.2d 161.)

4.   In a one-sentence argument, the District contends this finding is void because the trial court added it to its statement of decision after judgment had already been entered.The original statement of decision recited the findings made by the jury, including the finding that “the District abandoned its role as a pre-hospital emergency ambulance transport provider․”  It set forth findings by the court, but only to these extent that the court's findings were different from, or in addition to, those of the jury.   Thus, it is apparent from the original statement of decision that the trial court agreed with the jury's finding of abandonment.   The postjudgment amendment of the statement of decision to make this explicit was supererogatory.

5.   We therefore do not reach the District's contentions that:(1) Ambulance services are a “type,” not a “level,” of emergency medical services, so that when the District stopped providing ambulance services, it did not reduce the “level” of prehospital emergency medical services it was providing.(2) Even assuming the District did reduce the “level” of its prehospital emergency medical services without a public hearing, the remedy under the EMS Act was not to prohibit it from providing ambulance services ever again;  to the contrary, the appropriate remedy would be an injunction requiring it to resume providing ambulance services.  (See § 1798.208.)

6.   Even though the jury and the trial court found that the District was providing ambulance services on June 1, 1980, Valley states, as if it were a fact, that it was not.   Valley, however, never claims this finding was not supported by substantial evidence.   Moreover, Valley has waived any such claim by failing to set forth all the evidence relevant to this disputed factual issue.  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362;  Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832, 227 Cal.Rptr. 1.)   We therefore treat this finding as proven.

7.   At oral argument, the District shifted its focus somewhat;  it argued that estoppel was inequitably applied, not so much against the District, but rather against the District's taxpayers and citizens.   Thus, it lamented the fact that the 65,000 citizens of the District had supposedly been estopped from providing themselves with emergency ambulance services.   Inasmuch as every citizen of the District is also a citizen of the County, we find this less than persuasive.

8.   As the court noted, “[e]ach local agency is required to employ a physician as its medical director, and such physician must have ‘substantial experience in the practice of emergency medicine [unless that] requirement places an undue hardship on the county or counties.’ (§ 1797.202, subd. (a).)”  (Memorial Hospitals Assn. v. Randol, supra, 38 Cal.App.4th at pp. 1307-1308, 45 Cal.Rptr.2d 547.)

9.   The joint powers agreement establishing ICEMA was attached as an exhibit to Valley's complaint.   Although it was never placed in evidence, the trial court considered it, and even quoted from it in its statement of decision.   Presumably the trial court took judicial notice of it.   (Evid.Code, § 452, subd. (c);  Marek v. Napa Community Redevelopment Agency (1988) 46 Cal.3d 1070, 1076, fn. 5, 251 Cal.Rptr. 778, 761 P.2d 701.) We therefore do likewise.  (Evid.Code, § 459, subd. (a)(1).)

10.   The District asserts that the attorney for the local EMS agency must be the Attorney General or the county district attorney, citing section 1798.208.   That section, however, merely allows the Attorney General and the district attorney to bring suit to enjoin a violation of the EMS Act.   It does not establish an attorney-client relationship between the local EMS agency and either the Attorney General or the district attorney.

FOOTNOTE.   See footnote *, ante.

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J. and McKINSTER, J., concur.