Shamsian v. Department of Conservation, B184680.

CourtCalifornia Court of Appeals
Citation39 Cal.Rptr.3d 62,136 Cal.App.4th 621
Decision Date07 February 2006
Docket NumberNo. B184680.,B184680.
PartiesFerial 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.

A. The Act

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: "(a) Experience in this state and others demonstrates that financial incentives and convenient return systems ensure the efficient and large-scale recycling of beverage containers. Accordingly, it is the intent of the Legislature to encourage increased, and more convenient, beverage container redemption opportunities for all consumers. These redemption opportunities shall consist of dealer and other shopping center locations, independent and industry operated recycling centers, curbside programs, nonprofit dropoff programs, and other recycling systems that assure all consumers, in every region of the state, the opportunity to return beverage containers conveniently, efficiently, and economically. [¶] (b) California grocery, beer, soft drink, container manufacturing, labor, agricultural, consumer, environmental, government, citizen, recreational, taxpayer, and recycling groups have joined together in calling for an innovative program to generate large-scale redemption and recycling of beverage containers. [¶] (c) This division establishes a beverage container recycling goal of 80 percent, and when the redemption rate for any one type of beverage container falls below 65 percent, this division provides for an increased refund value. [¶] (d) It is the intent of the Legislature to ensure that every container type proves its own recyclability. [¶] (e) It is the intent of the Legislature to make redemption and recycling convenient to consumers, and the Legislature hereby urges cities and counties, when exercising their zoning authority, to act favorably on the siting of multimaterial recycling centers, reverse vending machines, mobile recycling units, or other types of recycling opportunities, as necessary for consumer convenience, and the overall success of litter abatement and beverage container recycling in the state. [¶] (f) The purpose of this division is to create and maintain a marketplace where it is profitable to establish sufficient recycling centers and locations to provide consumers with convenient recycling opportunities through the establishment of minimum refund values and processing fees and, through the proper application of these elements, to enhance the profitability of recycling centers, recycling locations, and other beverage container recycling programs. [¶] (g) The responsibility to provide convenient, efficient, and economical redemption opportunities rests jointly with manufacturers, distributors, dealers, recyclers, processors, and the Department of Conservation. [¶] (h) It is the intent of the Legislature, in enacting this division, that all empty beverage containers redeemed shall be recycled, and that the responsibilities and regulations of the department shall be determined and implemented in a manner which favors the recycling of redeemed containers, as opposed to their disposal. [¶] (i) Nothing in this division shall be interpreted as affecting the current business practices of scrap dealers or recycling centers, except that, to the extent they function as a recycling center or processor, they shall do so in accordance with this division [¶] (j) The program established by this division will contribute significantly to the reduction of the beverage container component of litter in this state." (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: "The director may grant an exemption from the requirements of Section 14571 for an individual convenience zone only after the department solicits public testimony on whether or not to provide an exemption from Section 14571. The solicitation process shall be designed by the department to ensure that operators of recycling centers, dealers, and members of the public in the jurisdiction affected by the proposed exemption are aware of the proposed exemption."2

B. The First Amended Complaint and the Mandate Petition

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...

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