Voss v. Superior Court

• Decision Date: 20 June 1996
• Docket Number: No. F023017,F023017
• Citation: 46 Cal.App.4th 900,54 Cal.Rptr.2d 225
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 4616, 96 Daily Journal D.A.R. 7264 Henry VOSS, as Secretary, etc., et al., Petitioners, v. The SUPERIOR COURT of Tulare County, Respondent; WILEMAN BROS. & ELLIOTT, INC. et al., Real Parties in Interest.

Page 225

54 Cal.Rptr.2d 225

46 Cal.App.4th 900, 96 Cal. Daily Op. Serv. 4616,

96 Daily Journal D.A.R. 7264

Henry VOSS, as Secretary, etc., et al., Petitioners, v. The SUPERIOR COURT of Tulare County, Respondent WILEMAN BROS. & ELLIOTT, INC. et al., Real Parties in Interest.

No. F023017.

Court of Appeal, Fifth District, California.

June 20, 1996.

Certified for Partial Publication. ^*

Review Denied Sept. 25, 1996. ^**

[46 Cal.App.4th 904] Daniel E. Lungren, Attorney General, Charles W. Getz, III, Assistant Attorney General, and Edna Walz, Deputy Attorney General, for Petitioners.

No appearance for Respondent.

Thomas E. Campagne and Clifford C. Kemper, Fresno, for Real Parties in Interest.

OPINION

DIBIASO, Acting Presiding Justice.

We hold that section 14 of the Food and Agricultural Code expressly exempts the issuance of marketing orders under the California Marketing Act of 1937 (Food & Agr.Code, §§ 58601 et seq.) from all of the requirements of the California Administrative Procedure Act (Gov.Code, § 11346 et seq.).

FACTS AND PROCEDURAL HISTORY

In 1993, a group of plum growers and handlers calling themselves the "Stone Fruit Coalition" approached the California Department of Agriculture (Department), provided it with a proposed mandatory California plum marketing order, and requested that the order be issued pursuant to the provisions of the California Marketing Act of 1937 (CMA). The proposed marketing order set out a plum marketing program to be administered by the Department.

A "marketing order" is an order issued by the Secretary of the Department (secretary) (see Food & Agr.Code, §§ 35, 50, 58741) "pursuant to" the CMA that "prescribes rules and regulations that govern the processing, distributing, or handling, in any manner of any commodity within [California] during any specified period." (Food & Agr.Code, §§ 58615, 58741, 58742.) A "commodity" for purposes of the CMA includes (but is not limited to) agricultural produce grown in California. (Food & Agr.Code, § 58605.) A "producer" of an agricultural commodity is one who grows it. (Food & Agr.Code, § 58620.) A "distributor" is one who sells, markets, or distributes the commodity in intrastate commerce but (with one exception) is not a retailer. (Food & Agr.Code, § 58608.) A "processor" is one who prepares the commodity for the market or for marketing. (Food & Agr.Code, § 58619.) A "handler" is either a "distributor" or a "processor." (Food & Agr.Code, § 58611.) " 'Producer marketing' " means "all operations ... performed by any producer in preparing for market." (Food & Agr.Code, § 58621.)

Among other terms, the proposed plum marketing order provided for the establishment of the California Plum Marketing Board (Board), consisting of 13 plum growers and handlers, to assist the secretary in administering the plum marketing program. ¹ Under the terms of the proposed order, the Board's authority would include, subject to the approval of the secretary: (1) the pursuit of research and development studies pertaining to the production and distribution of plums; (2) the conduct of advertising and sales promotion programs relating to plums; (3) the investigation of economic and marketing conditions affecting plums; (4) the recommendation of grade and quality standards for plums, provided such standards were not "lower than any existing State or Federal regulations;" (5) the making of arrangements for the inspection and certification of plums for compliance with prevailing grade and quality standards; (6) the recommendation of budgets for the administration and enforcement of the program; and (7) the recommendation of assessment rates, "sufficient to provide adequate funds to defray the proposed expenditures and reserves as set forth in the budgets." The proposed order also set minimum maturity standards for plums and directed how assessments levied upon producers would be paid, collected and, if applicable, refunded. In addition, the order prescribed the maximum assessment levels for the component activities authorized by the proposed order; for example, the assessment for sales promotion and marketing development activities could not exceed 11 cents per 28-pound box of plums.

Acting in apparent compliance with procedures prescribed by the CMA, the Department issued the mandatory plum marketing order. In doing so, however, the Department did not follow any of the procedures described in the California Administrative Procedure Act (APA).

Real parties in interest Wileman Bros. & Elliott, Inc., and Kash, Inc. (hereinafter referred to collectively as "Wileman") are producers and handlers of plums. Wileman brought suit against petitioners Henry Voss, as Secretary of the State of California Department of Food and Agriculture, and the Department itself (hereinafter collectively referred to as "the Department"). The Wileman complaint pled seven separate causes of action. In relevant part, the first, second and fifth causes of action alleged the Department had failed to comply with the APA. The Department's answer to the complaint denied any such "failure" on its part; according to the Department, the APA did not apply in any respect to the promulgation of the plum marketing order.

Wileman moved for summary judgment or, in the alternative, summary adjudication with respect to the first, second and fifth causes of action of its complaint. Wileman argued the mandatory plum marketing order was invalid because in issuing it the Department was required to, but did not, follow certain of the procedures set out in the APA. It was undisputed that the Department ignored the APA in issuing the plum marketing order.

The superior court judge, on his own motion, "bifurcated" the first, second and fifth causes of action from the others. He then granted Wileman's motion for a summary judgment as to the segregated counts and ultimately entered a "judgment" in favor of Wileman on the three bifurcated causes of action. The Department appealed from this "judgment" entered in favor of Wileman on the first, second and fifth causes of action.

We will dismiss the Department's appeal as having been taken from an invalid, non-appealable judgment. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 29 Cal.Rptr.2d 804, 872 P.2d 143.) We will however, treat the purported appeal as a petition for writ of mandate (id. at pp. 744-745, 29 Cal.Rptr.2d 804, 872 P.2d 143) and grant it.

DISCUSSION

I. ^**

II.

The Department contends the trial court erred in concluding that issuance of the plum marketing order was subject to various provisions of the APA. It maintains that compliance with the CMA was all that was required of it.

A. The CMA

The CMA constitutes a legislative entrustment of the power to regulate the marketing of agricultural commodities to those who produce or otherwise deal with such products, subject to the approval of the secretary. (Shimomura, "A New Look at the California Marketing Act of 1937," (1972) 5 U.C. Davis L.Rev. 190, 198.) It grew out of the chaotic conditions which characterized California agriculture during the early part of the twentieth century. (Id. at pp. 196-198.) Before the promulgation of the CMA, each of California's many fruit and vegetable growers attempted to be the first in the market with his or her commodity, in order to take advantage of the premium prices paid on early shipments. This led to the marketing of inadequately ripened produce, and the glutting of the market during the peak season with poor quality commodities. Deceptive packaging, improper sampling, and false grading were often resorted to in order to attempt to enhance the attractiveness of the produce. This "unregulated scramble" had an "adverse effect upon consumer acceptance of California fruits and vegetables," and the unstable and fluctuating markets "had an exaggerated impact on the livelihood of" the state's agricultural producers. (Id. at pp. 196-197.) The depression of 1929-1933 only exacerbated these problems; the prices paid to growers "plummeted." (Id. at p. 198.)

In enacting the CMA, the Legislature found there existed "unreasonable and unnecessary economic waste of the agricultural wealth of" California caused by, among other things, the "disorderly marketing of such commodities," the "lack of uniform grading and classification of commodities," "unfair methods of competition in the marketing of commodities," and the "inability of individual producers to maintain present markets or to develop new or larger markets for California-grown commodities." (Food & Agr.Code, § 58651.) According to the Legislature, these conditions "jeopardize the future continued production of adequate supplies of food, fiber, and other products of the farm ... and prevent producers from obtaining a fair return from their labor, their farms, and the commodities which they produce." (Ibid.)

The purpose of the CMA is to:

[p] "(a) Enable the producers of this state ... to correlate more effectively the marketing of their commodities with market demands for those commodities. [p] (b) Establish orderly marketing of commodities. [p] (c) Provide for uniform grading and proper preparation of commodities for market. [p] (d) Provide methods and means for the maintenance of present markets, or for the development of new or larger markets, for commodities that are grown within this state or for the prevention, modification, or elimination of trade barriers that obstruct the free flow of those commodities to market. [p] (e) Eliminate or reduce economic waste in the marketing of commodities. [p] (f) Restore and maintain adequate purchasing power for the producers of this state. [p] (g) Inform the general public of the processes of producing agricultural commodities. [p] [and] (h) Foster cooperation and understanding between urban and rural sectors of society." (Food & Agr.Code, § 58654; see also Food & Agr.Code, § 58652; Brock v. Superior Court (1952) 109 Cal.App.2d 594, 598, 241 P.2d 283.)...