SYNGENTA v. PAUL

Filed 4/25/06 Opinion on rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment of the Superior Court of Los Angeles County, Dzintra I. Janavs and Gregory C. O'Brien, Judges. Affirmed in part as modified, and reversed in part with directions.

McKenna Long & Aldridge, Stanley W. Landfair, Joseph F. Butler, Robert S. Schuda, Shannon L. Fagan, Michael J. Stiles and Eric S.C. Lindstrom for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, William S. Abbey and Todd A. Valdes, Deputy Attorneys General, for Defendant and Appellant.

Murchison & Cumming, Edmund G. Farrell III, Gina E. Och; Kessler & Collins, Gary S. Kessler and Daniel P. Callahan for Real Party in Interest and Appellant.

Continue from Part I …….

5. Further Trial Court Proceedings

Dow filed a combined complaint and petition for writ of mandate in the superior court in September 2002 (case No. BS078342). Dow alleged counts for (1) a peremptory writ of mandate directing the Department to refrain from considering data previously submitted by Dow in support of applications for registration by other applicants, without Dow's consent, and to deny applications for registration of certain products containing oryzalin or set aside completed registrations; (2) declaratory relief, seeking declarations that the Department's consideration of data previously submitted by Dow in support of an application for registration by another applicant, without Dow's consent, is unlawful, and that applications for registration of products containing oryzalin by other applicants were incomplete and should be denied; (3) a permanent injunction to prevent the Department from considering data previously submitted by Dow in support of applications for registration by other applicants, without Dow's consent, and to require the Department to deny applications for registration of certain products containing oryzalin or set aside registrations; (4) violation of the Uniform Trade Secrets Act, seeking a prohibitory injunction; (5) unlawful taking without just compensation under the United States and California Constitutions; (6) violation of the equal protection clauses of the United States and California Constitutions; and (7) violation of the APA by adopting amendments to sections 6170, 6172, and 6200 of title 3 of the California Code of Regulations, and issuing the Notice, without providing public notice and an opportunity to comment. Dow also challenged the regulatory amendments and the Notice on the ground that they conflicted with former Food and Agricultural Code section 12811.5.

The superior court entered an order in November 2002 determining that the two proceedings were related and assigned the cases to the same judge, and consolidated the two proceedings for all purposes in January 2003.[1] Dow dismissed its count for a peremptory writ of mandate without prejudice in February 2003, and dismissed the complaint against Nations Ag and the other manufacturers after Dow provided a letter of authorization for the Department to consider data previously submitted by Dow.

Syngenta and Dow jointly moved for summary judgment or summary adjudication in October 2003. The Department moved for summary judgment or summary adjudication in both proceedings, and Gustafson also moved for summary judgment or summary adjudication. The trial court granted summary adjudication in favor of Syngenta and Dow on the count for declaratory relief with respect to Food and Agricultural Code section 12811.5, stating that the plain meaning of section 12811.5 is that the Department cannot consider, â€