Alta-Dena Dairy v. San Diego County

Decision Date25 March 1969
Docket NumberALTA-DENA
Citation271 Cal.App.2d 66,76 Cal.Rptr. 510
CourtCalifornia Court of Appeals Court of Appeals
PartiesDAIRY, a partnership, Petitioner and Appellant, v. The COUNTY OF SAN DIEGO and J. B. Askew, M.D., Director of Public Health for the County of San Diego, Respondents. Civ. 9150.
OPINION

AULT, Justice pro tem. *

Alta-Dena Dairy, a partnership consisting of Harold J. J. Stueve, Edgar E. Stueve and Elmer Stueve, appeals from a judgment of dismissal entered after a demurrer was sustained to its third amended petition for writs of mandate, certiorari and prohibition. The petition is directed against the County of San Diego and its Director of Public Health, Dr. J. B. Askew, M.D. The court sustained general demurrers to all six counts of the petition, expressly refrained from ruling on special demurrers and motions to strike, and granted 30 days to amend. Alta-Dena Dairy and its partners (Alta-Dena), elected to stand on the pleading and the dismissal followed.

In the first four causes of action Alta-Dena seeks mandate together with monetary damages from Dr. Askew and the County of San Diego. The fifth cause of action asks for certiorari and the sixth for prohibition. All of the causes of action set forth in the petition contain the same factual allegations, but in each relief is sought on different theories of law. For that reason, in discussing the pleading to ascertain whether a cause of action is stated, we will generally refer to the petition as a whole and not to the individual causes of action.

In the oral argument in this court, Alta-Dena's attorney announced his intention to abandon the fourth cause of action and any claim for monetary damages against the County of San Diego and Dr. Askew. We accept that abandonment and therefore will not comment on those aspects of the appeal.

Alta-Dena is located in the County of Los Angeles. It produces and distributes raw milk. The controversy before us arose as the result of an order contained in a letter dated January 19, 1966, from Dr. Askew to Alta-Dena which reads:

'The Public Health Laboratory of this department recently isolated bacterial organisms known as coagulase positive staphylococci from bottled unpasteurized milk originating from your dairy. These organisms are pathogenic to man.

'Upon receipt of this letter, you are hereby notified to discontinue the production of raw milk for sale and to pasteurize all milk produced at your dairy for distribution in San Diego County. This order will remain in effect until such time as you can prove to this department that the raw or unpasteurized milk from your dairy is free of pathogenic organisms and this department authorizes in writing the sale of raw milk from your dairy. The authority for taking this action is found in Section 2528 of the California Administrative Code, Title 17 which states as follows:

"2528. When the local health officer has good cause to believe that a milk supply is suspected to be the source of infection for any one of the communicable diseases known to be transmitted through or suspected of being transmitted through milk, the health officer shall prohibit the use, sale or disposal of such milk, except by a method approved by him, until such time as he deems it to be safe for human consumption.'

'If you have any questions regarding this matter, you may wish to contact Mr. Walshe, Mr. Whitman or Dr. Murphy of this department at 239--7711, Extension 420.'

Alta-Dena, after an informal and unsuccessful attempt to obtain relief from this order, filed its petition in the trial court. Throughout its pleading and on appeal, it concedes its certified raw milk did and does contain a small quantity of staphylococci aureus coagulase positive. The first cause of action for mandate is based upon the theory of an alleged denial of substantive and procedural due process. Factually, it is alleged: certified raw milk cannot as a practical matter be produced without the presence of a small quantity of staphylococci aureus coagulase positive; the presence of a small quantity of that bacteria in its milk does not render the milk harmful to man, unsafe for human consumption, or make it a source of infection for one of the communicable diseases known to be or suspected of being transmitted through milk; this quantity of bacteria has been present in certified raw milk for over 60 years and no one has been made ill by its consumption, and staphylococci aureus coagulase positive is neither an infection nor a disease. It is further alleged the action taken by Dr. Askew was without notice or hearing and by reason of the action taken Alta-Dena has been improperly and unlawfully precluded from the enjoyment of a valuable property right, that is, the right to distribute and sell its certified raw milk in San Diego County.

Respondent Askew's authority to prohibit the distribution and sale of appellant's certified raw milk must be based upon the provisions of Section 2528 of Title 17 of the California Administrative Code, cited in his letter of January 19, 1966. As a prerequisite to taking action, that section requires the local health officer to have good cause to believe the 'milk supply is suspected to be the source of infection for any one of the communicable diseases known to be transmitted through or suspected of being transmitted through milk.' The factual allegations in the petition support a conclusion directly to the contrary.

Furthermore, Section 2528 provides the health officer shall prohibit the sale of suspected milk 'until such time as he deems it to be safe for human consumption.' Since the power to prohibit the sale of milk ends when milk is safe for human consumption, it necessarily follows such power begins when that standard is not met. Application of any lesser standard would result in an invalid exercise of the police power not reasonably related to the health, convenience, comfort, safety and morals of the public. (See Frost v. City of Los Angeles, 181 Cal. 22, 28, 183 P. 342, 6 A.L.R. 468.) The petition unequivocally alleges Alta-Dena's certified raw milk, despite the presence of staphylococci aureus coagulase positive in small quantity, is not harmful to human beings and is safe for human counsumption.

Respondents, however, rely on the well recognized exception to the general rule that in testing the sufficiency of the pleading on demurrer, matters judicially noticed will be considered and will prevail over contrary allegations contained in the pleading. (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; Livermore v. Beal, 18 Cal.App.2d 535, 540, 64 P.2d 987.) They contend certain regulations, reports and documents of which the court must take judicial notice establish staphylococci aureus coagulase positive is a communicable disease transmitted through milk and since appellant concedes its presence in its certified raw milk, no issue of fact is raised by the petition and the demurrer was properly sustained. We have examined the items and sources upon which respondents rely. Assuming them all to be properly subject to judicial notice and assuming without deciding the statements contained therein must be accepted as true in all instances (See Love v. Wolf, 226 Cal.app.2d 378, 403, 38 Cal.Rptr. 183; Beckley v. Reclamation Board, 205 Cal.App.2d 734, 741, 23 Cal.Rptr. 428), we feel none of them meets the fair thrust of the factual allegations contained in the petition. They do not establish the presence of staphylococci aureus coagulase positive in milk in small quantity makes that milk a source of infection for a communicable disease or renders it unsafe for human consumption.

It is a matter of common knowledge that most of the food we eat and the water we drink is not absolutely pure. Much of it contains small quantities of deleterious substances which, if present in larger quantity, might prove injurious to health. But the business of producing and selling foodstuffs, including milk, is a lawful business and interference by the governmental agency must bear a reasonable relationship to the public health and safety. (Frost v. City of Los Angeles, Supra, 181 Cal. 22, 28, 183 P. 342, 6 A.L.R. 468.) If it is true, as appellat alleges, that its milk, containing a small quantity of staphylococci aureus coagulase positive, presents no danger to the public health and is safe for human consumption, the order prohibiting its sale exceeds the authority conferred by the regulation and amounts to an abuse of discretion.

It is next contended the petition for mandate is fatally defective because appellant has not exhausted its administrative remedy. Section 2528 of the Administrative Code contains no provision for review of the order made by the health officer and respondents have pointed to no other statute or regulation which does so. Instead they rely on a single sentence which appears in the letter-order of Dr. Askew dated January 19, 1966. It reads as follows:

'This order will remain in effect until such time as you can prove to this department that the raw or unpasteurized milk from your dairy is free of pathogenic organisms and this department authorizes in writing the sale of raw milk from your dairy.'

The contention is that since appellant did not accept this invitation, it has failed to exhaust its administrative remedy, and access to the court should be denied.

We think an administrative remedy sufficient to invoke the doctrine of exhaustion cannot...

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