JACOBS FARM/DEL CABO, INC V. WESTERN FARM SERVICE, INC






Filed 12/20/10






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JACOBS FARM/DEL CABO, INC., Plaintiff and Respondent, v. WESTERN FARM SERVICE, INC., Defendant and Appellant.

H033718 (Santa Cruz County Super. Ct. No. CV157041)

STORY CONTINUE FROM PART I….


The exhaustion of administrative remedies doctrine is this: “[W]here 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.) The doctrine typically applies only to statutory claims. (Rojo v. Kliger (1990) 52 Cal.3d 65, 84.) Plaintiff’s claims for damages are not statutory. Furthermore, as we shall shortly explain, plaintiff had no administrative remedy for challenging the deputy commissioner’s finding that defendant had not violated the law.
Defendant’s collateral estoppel argument invokes the judicial exhaustion doctrine, which may arise when a party initiates and takes to decision an administrative process “whether or not the party was required, as a matter of administrative exhaustion, to even begin the administrative process in the first place.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 113.) “Once a decision has been issued, provided that decision is of a sufficiently judicial character to support collateral estoppel, respect for the administrative decisionmaking process requires that the prospective plaintiff continue that process to completion, including exhausting any available judicial avenues for reversal of adverse findings. [Citation.] Failure to do so will result in any quasi-judicial administrative findings achieving binding, preclusive effect and may bar further relief on the same claims.” (Ibid.) The doctrine also may apply where a plaintiff had the opportunity to fully litigate his claims in a quasi-judicial administrative hearing but failed to do so. (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860.) In such cases, the factual matter decided by the administrative agency has a binding, preclusive effect in subsequent litigation on the same issue when asserted against a party who was a party to the prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
As should be clear from the foregoing, the judicial exhaustion doctrine does not apply here for at least two reasons. First, the decision does not have the judicial character needed for collateral estoppel to apply. The deputy commissioner conducted an investigation. The investigation was not a quasi-judicial process nor did the statutory scheme provide any fair hearing procedure for plaintiff to challenge the deputy commissioner’s finding. Citing Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419, defendant argues that there were multiple layers of administrative review available for plaintiff to challenge the deputy commissioner’s factual and legal conclusion and that the review process is governed by the Administrative Procedure Act (Gov. Code, §§ 11400 et seq., 11500 et seq.), which gives it the necessary judicial character. Our review of the statutory scheme does not disclose any avenue for plaintiff to have directly challenged the deputy commissioner’s findings. A “person charged” with violating the pesticide laws must be given notice and a hearing (§ 12999.4), which is how the issue came up in Patterson Flying Service. (Patterson Flying Service, supra, at p. 417.) The statutes also provide that “[a]ny person aggrieved” by a commissioner’s cease and desist order may appeal to the director. (§ 13102.) Here, plaintiff was neither charged with a violation nor aggrieved by a cease and desist order. Indeed, plaintiff was not, strictly speaking, a party to the deputy commissioner’s investigation. By analogy to an alleged Penal Code violation, plaintiff would be the victim. The deputy commissioner’s investigation was focused upon determining whether the harm plaintiff suffered was the result of defendant’s unlawful act such that defendant should be subject to fines or other sanctions. But the deputy commissioner’s conclusion had no direct effect upon plaintiff and plaintiff had no specific administrative process for directly challenging it.
The collateral estoppel doctrine does not apply for the additional reason that the deputy commissioner’s conclusion--that defendant had not violated title 3, section 6614--was not dispositive of any material fact necessary to prove plaintiff’s common law causes of action. As to the negligence cause of action, it is elementary that in order to establish liability, a plaintiff must prove that the defendant breached a duty of care that was the proximate cause of injury to the plaintiff. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 835, p. 52.) In most cases, the standard of care for tort liability is that of “a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) Compliance with the law does not necessarily prove that the defendant met that standard of care. Typically, compliance with the law “simply constitutes evidence for jury consideration with other facts and circumstances.” (Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1830-1831.) The reason for that is that statutes and regulations “cannot take into account the particular concerns of individual cases. They aim at minimum standards but are not meant to establish the outer limits of the defendant’s safety responsibilities.” (1 Dobbs, The Law of Torts (2001) § 224, p. 573.) Thus, the deputy commissioner’s finding that defendant had complied with the law, even if final and on the merits, did not negate any element essential the proof of plaintiff’s negligence claim. Since the trespass cause of action depended upon a finding of negligent entry, the deputy commissioner’s finding did not affect it, either.[1]
Over 60 years ago, the Attorney General issued an opinion with which we agree today. The opinion was rendered in response to questions about the effect of the then-newly enacted provisions requiring a permit for the application of potentially injurious agricultural chemicals. Responding to concern that compliance with permit requirements might relieve pesticide applicators from liability for negligent acts, the Attorney General opined: “Nowhere does it state that if one has secured the necessary permit and has observed all the established rules and regulations, he should be held blameless for his negligent act. The rules and regulations as established from time to time will undoubtedly indicate the manner in which an individual who desires to be free of negligence should operate. The mere fact, however, that he follows the rules and regulations does not in itself guarantee that he is free of negligence. And nowhere is he relieved of responsibility for his negligent acts.” (18 Ops.Cal.Atty.Gen. 223 (1951).)
In sum, to the extent defendant argues that the deputy commissioner’s decision should have had some preclusive effect upon plaintiff’s claims for damages, we reject it. In this regard, the statutory scheme and the common law are complementary, not conflicting. Plaintiff’s lawsuit had no effect upon the commissioner’s ability to regulate pesticide use or upon the validity of the deputy commissioner’s conclusion as it pertained to defendant’s liability under the pesticide laws. Similarly, the deputy commissioner’s determination that defendant had complied with the law did not bar plaintiff from pursing defendant for damages arising from its alleged lack of due care.
1. Negligence Per Se
Defendant also argues that the trial court erred by instructing the jury in the doctrine of negligence per se. Plaintiff’s briefs do not address the argument. Nevertheless, we reject it.
Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. This is called negligence per se. The presumption of negligence arises if: (1) the defendant violated a statute; (2) the violation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of occurrence the statute was designed to prevent; and (4) the plaintiff was one of the class of persons the statute was intended to protect. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1284-1285 (Quiroz), citing Evid. Code, § 669, subd. (a).) The first two elements are normally questions for the trier of fact and the last two are determined by the trial court as a matter of law. (Quiroz, supra, at p. 1285.) That is, the trial court decides whether a statute or regulation defines the standard of care in a particular case.
Here, the crux of the dispute was whether title 3, section 6614 was intended to prevent the possibility of damage caused by postapplication drift. Although plaintiff’s attorney told the jury that it was being asked to decide this question, the trial court had effectively decided it before the jury got the case. As our Supreme Court has explained, “The significance of the statute in a civil suit for negligence lies in its formulation of a standard of conduct that the court adopts in the determination of such liability. [Citation.] The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it.” (Clinkscales v. Carver (1943) 22 Cal.2d 72, 75, italics added.) Thus, notwithstanding counsel’s argument, when the trial court instructed the jury in the language of title 3, section 6614 and the negligence per se doctrine, the court had implicitly determined, as a matter of law, that the regulation was intended to prevent harm caused by postapplication drift.
Defendant maintains that the negligence per se instruction was error because it allowed the jury to second guess the deputy commissioner. Given the trial court’s implicit finding--that title 3, section 6614 applies to postapplication drift--the error of which defendant complains is, in effect, that the trial court’s interpretation of title 3, section 6614 conflicted with the deputy commissioner’s interpretation. As a threshold matter, we find that the trial court’s interpretation was the correct one.
Again we note, title 3, section 6614 requires a pesticide applicator “prior to and while applying a pesticide” (id. subd. (a)) to evaluate the weather and other circumstances “to determine the likelihood of harm or damage” (ibid.) and to defer or halt a pesticide application if there is “a reasonable possibility of damage to nontarget crops.” (Id. subd. (b)(2).) The plain meaning of the section is that an evaluation be made “prior to and while” applying a pesticide. The section does not say that an application must be deferred only if there is a reasonable possibility of damage occurring prior to or while the pesticide is being applied. It imposes no limit upon when the possible damage might occur. If the reasonable possibility of damage may be predicted prior to or while applying a pesticide, the application must be deferred or aborted. It may be, as a factual matter, that postapplication drift is not something a pesticide applicator could determine prior to or while applying a pesticide. If so, damage resulting from postapplication drift would not be the result of a violation of title 3, section 6614. But if the mandated evaluation would reveal a “reasonable possibility” that postapplication drift will damage nontarget crops, then title 3, section 6614 imposes a duty upon the pesticide applicator to defer or cease the application.
The trial court was not bound to defer to the deputy commissioner’s interpretation. It is the job of the court to interpret the laws and construe the law the agencies are charged with enforcing. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499, 526.) We find nothing in the pesticide laws that would confine the court’s exercise of this judicial power to the direct review of administrative decisions. Since the question is a purely legal one, there is no advantage to calling upon the agency’s factfinding expertise. (Cf. Tenderloin Housing Clinic, Inc. v. Astoria Hotel, Inc. (2000) 83 Cal.App.4th 139, 142-143.)
It is true that the statutory scheme contemplates that the commissioners will exercise ongoing, day-to-day, local oversight of pesticide use. Section 11501, subdivision (d) states that one of the express purposes of the law is to “permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.” (Italics added.) The comprehensive nature of the applicable statutory schemes along with the Legislature’s express intent to occupy the whole field of regulation (§ 11501.1), reveal a legislative intent to confine the process for adjudication of violations of the pesticide laws to the agencies charged with enforcement. In this case, however, the issue was whether defendant’s past conduct had been negligent. By giving the negligence per se instruction the trial court was not allowing the jury to adjudicate defendant’s guilt or innocence. Insofar as defendant’s liability under the pesticide laws is concerned, that was decided by the deputy commissioner. Nothing that occurred in the context of this case changed that.
Defendant’s argument is similar to one rejected by our Supreme Court in connection with a preemptive federal law. In Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540 (Elsworth), “Beech’s claim [was] that the jury should have been compelled to give determinative effect to the [Federal Aviation Administration (FAA)] decision that the Travel Air [aircraft] complied with all applicable safety regulations, and that it was error to give the negligence per se instruction to the effect that Beech was guilty of negligence if the Travel Air did not meet the regulations. Beech urge[d] that the effect of the instruction was to allow the jury to second-guess the FAA decision that the Travel Air complied with the regulations, thereby intruding into a field preempted by federal law.” (Id. at p. 547.)
The Supreme Court noted that, since the federal law clearly allowed state tort remedies, the critical issues were “whether there is an ‘irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law.’ (Silkwood [v. Kerr-McGee Corp. (1984)] 464 U.S. [238,] 256.” (Elsworth, supra, 37 Cal.3d at p. 549.) Elsworth discerned no irreconcilable conflict. “Even if the jury found that the Travel Air was defective on the basis of the negligence per se instruction, this would have no effect on the FAA’s power to certify aircraft, or on the validity of its certification decisions. It is important to note that the negligence per se instruction plays a very limited role in the context of a state court’s obligation to accord deference to the FAA’s decisions regarding the safety of aircraft. In essence, it allows the jury to find defective an airplane design that the FAA has approved as safe. But a jury may make the same determination without the instruction because, as Beech concedes, it could find a manufacturer liable for defective design even if the airplane complies with every regulation. The negligence per se instruction therefore affects only the jury’s reason for finding a design defect, rather than its power to find such a defect in the face of FAA certification.” (Id. at p. 550.)
Elsworth also determined that administration of the FAA certification program was not threatened by allowing a state to hold a manufacturer liable under negligence per se principles. “If anything, the converse is true. . . . An inquiry in a state court into whether the manufacturer in fact complied with the regulations, such as the extensive testimony in the present case of post-accident flight tests of the Travel Air and the relation of the results of those tests to the requirements of the safety regulations, would assist the FAA in policing a manufacturer’s compliance rather than hampering the agency in this regard.” (Elsworth, supra, 37 Cal.3d at p. 550.) The court went on, “The purpose of the regulations is to protect those who fly in airplanes or are affected by their flight. [Citations.] This goal would be enhanced rather than defeated by allowing a jury to consider whether the design of an aircraft complies with safety regulations. . . . A state court investigation of the issue in the context of an action for damages promotes the safety of the traveling public by revealing violations or defects which may not have come to the attention of the FAA at the time it issued the certificate.” (Id. at p. 551, fn. omitted.)
Our analysis in this case is similar. The question is whether application of the negligence per se doctrine interferes with the Legislature’s express intent to insure uniform statewide regulation of the pesticide laws. We conclude that it does not. As we have explained, the jury did not need to find defendant violated the law in order to find defendant to have been negligent. Compliance with the law is not a complete defense to negligence. Thus, as in Ellsworth, the instruction affected only the jury’s reason for finding defendant negligent. It had no effect upon the DPR’s ability to regulate pesticide use nor upon the commissioner’s ability to enforce the law.
2. Common Law Claims Pertaining to the Place a Pesticide Is Applied
We also reject defendant’s argument that the pesticide laws bar common law claims based solely upon the place a pesticide is used. In an action for damages arising from the application of restricted-use pesticides, the place of application will always be inextricably connected in some way to the manner and timing of the application. Since the Legislature clearly intended to preserve common law claims for damages, we are reluctant to find one factual basis for such a claim to be precluded where there is no express legislative indication to that effect. Furthermore, defendant’s argument is, in effect, that where the claim relates only to the place, a use permit makes a defendant absolutely immune from liability. But again, although compliance with the law or with the conditions of a permit may be evidence that the defendant was not negligent, it is not conclusive of the issue.
Defendant makes much of the in terrorem effect of civil suits, arguing that they regulate behavior as much as any local ordinance can. But the argument has no bearing upon our decision. If a civil suit seeking compensation for an injury caused by the negligent application of a pesticide causes a pesticide applicator to take additional precautionary measures, so be it. It is the law that if a pesticide applicator knows or should know that an injury is the reasonably possible result of applying a pesticide in a particular place, the mere existence of a permit does not give the pesticide applicator a license to ignore those consequences. (Tit. 3, § 6614.)
3. Nuisance
Defendant’s final argument is that the trial court erred in refusing to strike plaintiff’s nuisance cause of action on the ground it was barred by Civil Code section 3482. That section provides, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” In the alternative, defendant maintains that the court erred in refusing to instruct the jury in the language of that section. According to defendant, its pesticide applications cannot be deemed a nuisance because they were specifically authorized by the site and time-specific permits issued by the commissioner.
In general, our Supreme Court has “consistently applied a narrow construction to [Civil Code] section 3482 and to the principle therein embodied.” (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 100.) The statutory protection of Civil Code section 3482 does not apply “ ‘ “unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the Legislature contemplated the doing of the very act which occasions the injury.” ’ ” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291, quoting Hassell v. San Francisco (1938) 11 Cal.2d 168, 171 (Varjabedian).) “A requirement of ‘express’ authorization embodied in the statute itself insures that an unequivocal legislative intent to sanction a nuisance will be effectuated, while avoiding the uncertainty that would result were every generally worded statute a source of undetermined immunity from nuisance liability.” (Varjabedian, supra, at p. 291.) Thus, it is necessary that the courts scrutinize the legislative enactment in question to ascertain whether a legislative intent exists to sanction the alleged nuisance. (Greater Westchester Homeowners Assn. v. City of Los Angeles, supra, at p. 102; Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1258; Zack’s, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163, 1179.)
Defendant relies upon Farmers Ins. Exchange v. State of California (1985) 175 Cal.App.3d 494 (Farmers), in which this court held that Civil Code section 3482 precluded liability for nuisance and trespass to chattel in connection with the aerial spraying of malathion during the Mediterranean fruit fly (medfly) infestation of the 1980s. The program eradicated the medfly but it also damaged the paint on automobiles exposed to the chemicals in the sprayed areas. A group of insurance companies sued the state seeking compensation for property damage suffered by their insureds. (Farmers, supra, at p. 498.) The trial court sustained the defendant’s demurrer. (Id. at pp. 498-499.)
This court concluded that both Civil Code section 3482 and the common law defense of necessity barred the plaintiffs’ nuisance and trespass causes of action. The spraying had been conducted pursuant to a declared state of emergency under the Emergency Services Act (Gov. Code, § 8625 et seq.). (Farmers, supra, 175 Cal.App.3d at pp. 500-501.) The law authorizing the aerial spraying designated specific medfly eradication areas and set forth the means and methods that could be employed to control or eradicate the pest. (Id. at pp. 499-501; tit. 3, § 3591.5.) The Food and Agricultural Code then, as now, declared that an infestation like the medfly infestation is itself a public nuisance subject to abatement. (§ 5762; Farmers, supra, at p. 500, fn. 2.) Therefore, because the alleged nuisance--the release of a chemically destructive spray into the atmosphere--was “precisely” what the law authorized, Civil Code section 3482 was fully exculpatory, relieving the state from liability for both nuisance and trespass. (Farmers, supra, at p. 503.) Farmers rejected the plaintiffs’ contention that the governor’s proclamation did not “ ‘expressly authorize’ ” the state to damage automobile paint. “The authorizing statute need not predict the precise nature of the damages. It need only authorize the governmental action.” (Ibid.)
Defendant refers to Farmers’s holding that a statutory authorization “need not predict” the nature of the damages, arguing that in this case the permits authorized its application of pesticides to the Brussels sprouts field and need not have predicted the particular injury plaintiff alleged. We reject the argument. The damaged property in Farmers was located in the very place the law authorized the chemical to be sprayed. Here, the permits authorized application to the Brussels sprouts fields but the damage occurred on plaintiff’s land. It is undisputed that defendant was not authorized to spray there.
Farmers is also distinguishable because the appellate court relied not only upon Civil Code section 3482 but also upon the defense of necessity. Quoting the standard treatise, Farmers explained, “Necessity is a complete defense to these torts. ‘A defendant who acts to prevent a threatened injury from some force of nature, or some other independent cause not connected with the plaintiff, is said to be acting under necessity. . . . [¶] . . . Where the danger affects the entire community, or so many people that the public interest is involved, that interest serves as a complete justification to the defendant who acts to avert the peril to all. . . .’ (Prosser and Keeton, Torts (5th ed. 1984) pp. 145-146.)” (Farmers, supra, 175 Cal.App.3d at p. 503.) In this case, defendant’s conduct was confined to its own economic interests and those of its clients. There was no public emergency nor facts upon which defendant could assert the necessity defense.
Farmers is one of only a handful of cases applying the Civil Code immunity. In general, the cases that apply the protection do so where the alleged nuisance is exactly what was lawfully authorized (Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1259 [wastewater discharge permit allowed maximum amount of certain substances]; Carson Harbor Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 870 [permit authorized pollutants contained in storm water discharge]) or is the inescapable result of the authorized act (Harding v. State of California ex rel. Dept. of Transportation (1984) 159 Cal.App.3d 359, 362 [dust, dirt, straw generated by authorized freeway construction]; Orpheum Bldg. Co. v. San Francisco Bay Area Rapid Transit Dist. (1978) 80 Cal.App.3d 863, 875-876 [noise, dust, and fumes from authorized construction of rapid transit system]; Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 163-164 [traffic, noise, fumes, and litter on city streets]). This case does not fall into either category.
Varjabedian, supra, 20 Cal.3d 285, is closer to the facts before us. Varjabedian concerned a sewage treatment plant that emitted noxious odors. The Supreme Court held that Civil Code section 3482 did not shield the defendant from liability for nuisance because the statutes authorizing the construction of sewage treatment plants could not be read to authorize the emission of bad odors. (Varjabedian, supra, at p. 292.) To the contrary, one object of sewage treatment facilities was to remove noxious effluents from the environment. (Ibid.)
Here, the permits authorized application of the pesticides to the Brussels sprouts fields surrounding plaintiff’s farm; they did not authorize application of pesticides or the damage to plaintiff’s crop. To the extent a permit may be deemed to authorize any particular application of pesticide, it does so within the context of a statutory and regulatory scheme designed to insure that pesticides are used effectively with minimum risk of injury to persons, property, and the environment. Like the statutes in Varjabedian, the pesticide laws and the permits issued by the commissioners are intended to prevent, not authorize, the very nuisance alleged here.
We conclude, therefore, that plaintiff’s nuisance cause of action was not barred by Civil Code section 3482. It follows that the trial court did not err in refusing to strike the nuisance cause of action or in failing to instruct the jury in the language of Civil Code section 3482.
I. Disposition
The judgment is affirmed. The parties shall bear their own costs on appeal.

Premo, J.





WE CONCUR:






Rushing, P.J.








Elia, J.












Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc.
H033718

Trial Court:	Santa Cruz County Superior Court Superior Court No. CV157041
Trial Judge:	Hon. Robert B. Atack
Attorneys for Defendant/Appellant: Western Farm Service, Inc.	Morris Polich & Purdy Richard H. Nakamura Jr. Petrie, Dorfmeier & Morris Dale Dorfmeier Barnes & Thornburg Dean T. Barnhard
Amicus Curiae on behalf of Appellant/Defendant: Western Farm Service, Inc.	California Farm Bureau Federation Kari E. Fisher Kahn, Soares & Conway Ann M. Grottveit for Air Coalition Team
Attorney for Plaintiff/Respondent: Jacobs Farm/Del Cabo, Inc.	Comstock, Thompson, Kontz & Brenner Austin B. Comstock Law Offices of Joel Franklin Joel Franklin
Amicus Curiae on behalf of Plaintiff/Respondent: Jacobs Farm/Del Cabo, Inc.	Natural Resources Defense Council, Inc. Avinash Kar Jason Malinksy Center on Race, Poverty & The Environment Alegria De La Cruz

Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc.
H033718


Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---