Shamsian v. Department of Conservation
Decision Date | 07 February 2006 |
Docket Number | No. B184680.,B184680. |
Citation | 39 Cal.Rptr.3d 62,136 Cal.App.4th 621 |
Court | California Court of Appeals |
Parties | Ferial SHAMSIAN, Plaintiff and Appellant, v. DEPARTMENT OF CONSERVATION, et al., Defendants and Respondents. |
Law Offices of Arnold G. Regardie and Arnold G. Regardie, Los Angeles, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, William S. Abbey and Jennifer F. Novak, Deputy Attorneys General, for Defendants and Respondents, Department of Conservation, Darryl W. Young, and Jim Ferguson.
Orrick, Herrington & Sutcliffe, D. Barclay Edmundson and Frank D. Rorie, Los Angeles; Skadden, Arps, Slate, Meagher & Flom, Thomas J. Nolan and Robert J. Herrington, Los Angeles, for Defendants and Respondents Anheuser-Busch, Inc. and Miller Brewing Company.
Plaintiff, Ferial Shamsian, appeals from a judgment dismissing her first amended complaint and denying her mandate petition as to defendants: the Department of Conservation (department); two individuals—Darryl W. Young, department director, and Jim Ferguson, assistant director of the California Beverage Container Recycling Program; and two corporations—Anheuser-Busch, Inc. and Miller Brewing Company (the corporate defendants). Plaintiff alleged the defendants had failed to provide convenient, economical, and efficient beverage container redemption opportunities for California consumers as required by section 14501, subdivision (g) of the California Beverage Container Recycling and Litter Reduction Act, Public Resources Code1 section 14500 et seq. (the act).
Plaintiff raises two contentions she claims are dispositive of this appeal. To begin with, plaintiff asserts defendants have a mandatory duty pursuant to section 14501, subdivision (g) such that a private right of action challenging their alleged inaction may be pursued by her. The trial court ruled there was no mandatory duty created by section 14501, subdivision (g). Also, plaintiff argues she can pursue her Business and Professions Code section 17200 unfair competition claims. The trial court ruled equitable abstention principles barred plaintiff's unfair competition claims. We agree with the trial court on both counts and affirm the judgment.
The Legislature adopted the act in 1986. (Stats.1986, ch. 1290, § 2, pp. 4539-4568.) The act creates a comprehensive administrative scheme designed to encourage and facilitate the large-scale recycling of used beverage containers. The act establishes a department administered program designed to achieve stated recycling goals through a complex arrangement of financial incentives. The act attempts to balance the competing interests of the varied participants in the beverage container and recycling industries. It requires for its success cooperation among manufacturers, distributors, recycling centers, supermarkets, and consumers. Additionally, it attempts to make recycling convenient for the consuming public. (§ 14500 et seq.; see Californians Against Waste v. Department of Conservation (2002) 104 Cal.App.4th 317, 325-326, 127 Cal.Rptr.2d 905.)
The act is administered and enforced by the department. (§ 14530; see also, e.g., §§ 14538, 14539.) The department is authorized to adopt regulations. (§ 14536; Cal.Code Regs., tit. 14, § 2000 et seq.) A violation of the act is an infraction punishable by a fine (§ 14591, subd. (a)) or, in the case of fraud, by a fine as well as possible imprisonment, potentially in the state penitentiary. (§ 14591, subd. (b).) The department is authorized, among other things, to: assess civil penalties for violations of the act (§ 14591.1) including unfair recycling competition (§ 14588 et seq.); take disciplinary action (§ 14591.2); seek restitution of money illegally paid (§ 14591.4); issue cease and desist orders (§ 14591.6, subd. (a)); and request that the Attorney General seek injunctive relief. (§ 14591.6, subd. (e).) Penalties, restitution and other remedies imposed by the department can be enforced by means of a judgment having the same force and effect as a judgment in a civil action. (§ 14591.5.)
The Legislature found and declared in section 14501 as follows: (Italics added.)
Section 14571, subdivision (a) provides: "Except as otherwise provided in this chapter, there shall be at least one certified recycling center or location within every convenience zone which accepts and pays the refund value, if any, at one location for all types of empty beverage containers. . . ." "Convenience zone" is defined in section 14509.4, subdivision (a) as, "The area within a one-half mile radius of a supermarket." However, the department has discretion under specified circumstances to increase the size of a convenience zone in a rural region to within a three-mile radius of a supermarket. (§ 14509.4, subd. (b)(1) & (2).) The department also has discretion to grant an exemption from the section 14571 requirement of one certified recycling center or location within every convenience zone. (§ 14571.8.) Section 14571.8, subdivision (b) states in part: 2
Plaintiff's first amended complaint and mandate petition were brought "individually and on behalf of all others similarly situated." Plaintiff's central allegation was that defendants were jointly responsible for providing convenient, economical, and efficient beverage container redemption opportunities for California consumers pursuant to section 14501, subdivision (g) of the act, but had failed to do so. Only the first, sixth, ninth, tenth, and eleventh causes of action of the first amended complaint concerned the present defendants. In her first cause of action, plaintiff sought a writ of mandate to compel compliance with defendants' "mandatory statutory joint duty and responsibility to provide convenient, efficient, and economical redemption opportunities . . ." as required by section 14501, subdivision (g) of the act. Plaintiff sought an order "that all convenience zones include within its boundaries [sic] at least one recycling center" as required by section 14571. In her sixth cause of...
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