PESTICIDE ACTION NETWORK NORTH AMERICA v. CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION No. A132044.

PESTICIDE ACTION NETWORK NORTH AMERICA et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION et al., Defendants and Respondents; ARYSTA LIFESCIENCE NORTH AMERICA, LLC, Real Party in Interest and Respondent; NISEI FARMERS LEAGUE et al., Movants and Appellants.

Court of Appeals of California, First District, Division Two.
Filed December 23, 2011.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHMAN, J.

Appellants sought to intervene in a writ proceeding below, to participate in a very limited way—the filing of one brief supporting the defendants and real party in interest. The trial court denied the motion to intervene and then a motion for reconsideration. Appellants appeal both rulings. We affirm.

BACKGROUND

The Department's Action and the Writ Petition

On December 1, 2010, the California Department of Pesticide Regulation (DPR) announced its final decision to register for agricultural use a suite of pesticides that contain methyl iodide.

On December 30, 2010 a petition for writ of mandate and complaint for declaratory relief was filed in the Alameda County Superior Court (the Petition). By way of introduction, the Petition alleged that "DPR's approval of methyl iodide is irresponsible and illegal. There is no question that the chemical is highly toxic. Breathing even small amounts causes slurred speech, vomiting, fetal miscarriage, and permanent damage to the lungs, liver, kidneys, and central nervous system. Direct skin exposure causes burns. And methyl iodide causes cancer: it is designated as a known carcinogen by the State of California, a hazardous air pollutant by the United States Environmental Protection Agency, and a toxic air contaminant by DPR itself."

The Petition was filed on behalf of eight petitioners: Pesticide Action Network North America, United Farm Workers, Californians for Pesticide Reform, Pesticide Watch Education Fund, Community and Children's Advocates Against Pesticide Poisoning, Worksafe, Inc., Jose Hidalgo Ramon, and Zeferino Estrada (Petitioners). The Petition named DPR and its director as respondents, and Arysta Lifescience North America, LLC (Arysta), the manufacturer of the pesticide, as real party in interest.

The Petition alleged 11 causes of action, claiming violations of the Administrative Procedure Act, the Food & Agricultural Code, the Birth Defects Prevention Act, the Pesticide Contamination Prevention Act and the California Environmental Quality Act. The Petition sought a stay of DPR's final notice of decision registering pesticide products containing methyl iodide; a temporary restraining order and preliminary injunction prohibiting DPR from registering pesticide products containing methyl iodide; an alternative and/or peremptory writ of mandate directing DPR to vacate and set aside its final notice of decision; a declaration the DPR's decision was contrary to law; and for permanent injunctive relief prohibiting DPR from registering pesticide products containing methyl iodide or otherwise authorizing the use of such pesticides in California pending compliance with all applicable laws and regulations.

The Application to Intervene

On March 18, 2011 two organizations and three individuals filed an application for leave to file a complaint in intervention: Nisei Farmers League, California Association of Nurseries, Will Scott, David Cox, and Elizabeth Elwood Ponce (usually collectively, Applicants; sometimes Proposed Intervenors). Applicants described themselves as "growers or grower association members who use fumigants and anticipate using methyl iodide in the state of California in the upcoming and future growing season [who] have a proprietary interest in their farming operations and the use of pesticides of choice." Applicants sought to intervene, to unite with Respondents and Arysta, in resisting the claims made by the Petitioners.

The claimed basis of the application to intervene was a mere two pages, and asserted as a basis for the intervention the following:

"5. Proposed Intervenors have the right to intervene in this action under California Code of Civil Procedure section 387(b) by virtue of the following facts: Proposed Intervenors and their members will be directly affected by the outcome of this litigation. Proposed Intervenors have a substantial interest in the success of Respondents and are adverse to Petitioners. Proposed Intervenors and their members were active participants in the registration process at issue herein. Proposed Intervenors and their members are parties whose constituents will use methyl iodide products and must comply with the label requirements as well as the requirements of Sections 6446.1, 6452.4 and 6624 of the California Code of Regulations, promulgated by Respondents, which are at issue herein. If Petitioners are successful in the action and this registration decision is stayed, rendered void, or subject to modification, Proposed Intervenors will be directly affected to their detriment. "6. Attached hereto and incorporated herein is a Stipulation and [Proposed] Order regarding Proposed Intervenors' intervention in this action (Exhibit `A'). The Petitioners have stipulated to the Proposed Intervenors' intervention in this action. Respondents and Real Party in Interest have also stipulated to Proposed Intervenors' intervention."

As indicated, the stipulation referred to in the application was attached to it, which stipulation provided in its entirety as follows:

"1. Petitioners Pesticide Action Network North America et al. filed this action on December 30, 2010, challenging a decision by respondents California Department of Pesticide Regulation . . . to register pesticide products containing the active ingredient methyl iodide; "2. Petitioners' verified petition for writ of mandate and complaint for declaratory and injunctive relief names the manufacturer of the pesticides at issue, Arysta Lifescience North America LLC as real party in interest; "3. Two organizations and three individuals who claim an interest in using the pesticide products at issue, specifically NISEI Farmers League, Will Scott, California Ass'n of Nurseries and Garden Center David Cox, and Elizabeth Elwood Ponce (collectively, `Proposed Intervenors'), seek to intervene as respondents in this action; "THE PARTIES HEREBY STIPULATE AS FOLLOWS: "1. Consistent with applicable law, the parties, by and through their counsel, hereby stipulate that Proposed Intervenors should be allowed to participate in this litigation subject to the conditions set forth in paragraphs 2-6 below: "2. Proposed Intervenors agree that their participation shall be limited to filing a single brief in opposition to petitioners' petition for writ of mandate, in accordance with whatever briefing schedule is proposed by the primary parties and/or adopted by the Court; "3. Proposed Intervenors agree not to seek discovery or to supplement the administrative record; "4. Proposed Intervenors agree to limit their claims and defenses to those raised by the respondents and real party in interest; "5. Proposed Intervenors agree that they shall not independently seek to appeal any decision in this matter, but may appeal should respondents or real party in interest elect to do so; "6. Each party agrees to pay its own fees and costs associated with Proposed Intervenors' participation in this matter."

The stipulation was signed as "approved" by: a representative of the Attorney General, attorneys for the director of the DPR, and the attorneys for petitioners, the real party in interest, and the applicants.

The application to intervene came on the court calendar on March 22, 2011, before the Honorable Frank Roesch, an experienced law and motion judge. No transcript of the hearing is in the record, and we do not know what happened that day. What we do know is that on March 22 a minute order was entered providing as follows: "IT IS ORDERED that the Application of Nisei Farmers League, et al. for Leave to File Complaint in Intervention is DENIED. Applicants seek to intervene pursuant to Section 387(b) of the Code of Civil Procedure. They have offered no cognizable basis for doing so. Moreover, Applicants have not asserted a basis to believe that the existing parties, most particularly the manufacturer of the pesticide at issue, will not adequately represent their interests in this action."

The Motion for Reconsideration

On April 11, 2011, applicants filed a motion for reconsideration. Unlike the application, the motion was accompanied by a memorandum of points and authorities and by six declarations, all of which were from the individual applicants or representative of the associations. The thrust of the declarations was to attempt to show the particular facts about the particular applicants.

On April 20, 2011, petitioners filed their response to the motion, which response read in its substantive entirety as follows:

"Rather then [sic] expend their limited resources opposing Proposed Intervenors' March 18, 2011 application to intervene, petitioners and plaintiffs Pesticide Action Network North America et al. (collectively, `Petitioners') elected to stipulate to Proposed Intervenors' participation subject to certain negotiated conditions. [Citation.] "However, Petitioners have never agreed—implicitly or explicitly—that Proposed Intervenors meet the criteria for intervention set forth in Section 387 of the Code of Civil Procedure, as Proposed Intervenors' [sic] misstate repeatedly. [Citation.] ["[T]he existing parties reached agreement among themselves . . . that all of the requirements under Section 387 of the Code of Civil Procedure were satisfied . . .']; [citation] [suggesting that the parties `operated under a common understanding that Proposed Intervenors satisfied the requirements to intervene . . .'].) "Indeed, Petitioners dispute many of the claims made by Proposed Intervenors in support of their motion to intervene. To give but one example, Proposed Intervenors' claim that `[w]ithout methyl iodide, deciduous tree growers will be left with no choice but to discontinue growing trees that are the foundation of orchard agriculture' is gross hyperbole at best. [Citation] Petitioners also disagree that Proposed Intervenors' interests would be represented inadequately by the government respondents and real party in interest. "In short, Petitioners have never suggested that Proposed Intervenors meet the statutory criteria for intervention in this lawsuit. Petitioners therefore take no position on Proposed Intervenors' motion for reconsideration."

On April 21, real party in interest Arysta filed a notice of non-opposition to applicants' motion for reconsideration. Four days later DPR and its director filed a similar notice, noting, however, that while the DPR "does not oppose intervention under Code of Civil Procedure section 387, subdivision (b), DPR clarifies that it entered into a stipulation to intervention generally, not to intervention as a matter of right . . . ."

The motion for reconsideration came on for hearing on May 10. We do have a transcript of it, and what developed there will discussed in detail below, as it sheds light on Judge Roesch's view of the situation here. Suffice to say here that the motion for reconsideration was denied.

On May 18, applicants filed their notice of appeal, from the orders denying leave to intervene and the motion for reconsideration.

DISCUSSION

Denial of Intervention Was Not An Abuse of Discretion

Intervention is governed in California by Code of Civil Procedure section 387. Applicants here moved under subdivision (b), which provides as follows: "If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene."

While section 387 is to be liberally construed to permit intervention, the decision whether to permit it or not is a matter of judicial discretion. (City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 906 [denial of intervention in mandate proceeding].) And we review an order denying leave to intervene under the abuse of discretion standard. (City & County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036 (City & County.)

Our colleagues in Division Three well explained it in City & County: "Because the decision whether to allow intervention is best determined based on the particular facts in each case, it is generally left to the sound discretion of the trial court. (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 302.) We therefore review an order denying leave to intervene under the abuse of discretion standard. (Reliance Ins. Co. v. Superior Court [(2000)] 84 Cal.App.4th [383], 386.) Under this standard of review, a reviewing court should not disturb the trial court's exercise of discretion unless it has resulted in a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) `"[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' (Ibid.)" (City & County, supra, 128 Cal.App.4th at pp. 1036-1037.) We find no such abuse here.

As noted, we have no transcript of the hearing on the motion to intervene, so we do not know what transpired there. As also noted, we do have a transcript of the hearing on the motion for reconsideration, the colloquy in which sheds light on what Judge Roesch was thinking then—and undoubtedly earlier, when he denied the original motion to intervene. Those comments demonstrate the correctness of Judge Roesch's decision. Specifically:

After counsel for the applicants addressed the timeliness of the motion for reconsideration, counsel then sought to show how applicants' position might be different from others. Judge Roesch asked a most perceptive question, and the following colloquy ensued:

"THE COURT: Is the lawsuit one where it's an issue of law? "MS. GROTTVEIT: We would submit that it should be an issue of law as to whether the Department has followed its registration process. Yes, your Honor. "THE COURT: So what is it that you would bring to this case? A different perspective? Is that what it is—that the manufacturer can't provide or that the State of California can't provide to defend this case? [¶] There's already two—I anticipate either a joint brief or two briefs from the responding parties here. Why do I need a third brief? What's going to be missed? What are they going to leave out? How are you going to be important in terms of presenting something to the Court that they won't present? "MS. GROTTVEIT: What the Department and the real party in interest will not be presenting to this Court is two considerations that the Department had to analyze, which is the impact on Agriculture. "THE COURT: Why wouldn't the real party in interest make that argument? You're not going to be able to present evidence on that. This is a review of an administrative record. It's either in there or it's not in there. If it's in there, there are two parties that are going to be pointing out some reasonable argument with regard to it. I just don't see why there needs to be a third voice saying the same thing. "MS. GROTTVEIT: As I've already indicated, your Honor, we are not seeking to duplicate the issues that Arysta and the Department are prepared to discuss with the Court. "THE COURT: How do you know what they're prepared to discuss with the Court? "MS. GROTTVEIT: ... Well, I'm assuming they're going to be discussing the documents in the record that they produced as part of their registration process. What I'm arguing now, your Honor, is that there are portions of the record that were submitted by the intervenors that were submitted by Agriculture, and those were considered by the Department. And it is the intervenors who are best situated to advise the Court and supplement those arguments to address the interest of Agriculture, which is not identical to that of Arysta. "As the case law cited in the brief indicates, while they're certainly aligned at this point, that is not the standard. The standard is will they make the same argument. No. Their interests are aligned. "Certainly Arysta has pecuniary interest in maintaining this registration. The interest of California Agriculture, however, is significantly broader. Without—one of the considerations of the Department is how important is this product to California Agriculture; that is one of the factors that the Department had to review. Without the Department of Agriculture explaining to the Court exactly what the implications are if this registration were to be overturned that record will not be in front of the Court, because with a record of 50,000—is my understanding of what our administrative record is, Agriculture's familiarity with what was submitted through the Department of Food and Ag as well as to their public comments—it's much greater. Arysta is going to be focused solely on the science. I assume the Department is going to be defending its scientists' actions as well. "There is another component that we would ask, your Honor. Even if it's a limited brief that only addresses those two issues—mitigation and the feasibility of alternatives, we think it is important that your Honor hear from Agriculture in this case."

The court then heard briefly from counsel for Arysta, the manufacturer. The court responded, and this is how the hearing ended:

"THE COURT: You're telling me as an advocate for your client, the manufacturer, you will not argue whatever legal argument there is to defend your position?—to defend the ruling or the decision of the agency that's available to you because you have primarily a scientific and chemical analysis view of this case? Is that what you're telling me? "MR. LANDFAIR: I'm not exactly saying that, your Honor. In the end under the relevant statutory standards the test for registration is a balancing of interests, and it's a balancing of the benefits of the product against anticipated adverse effects." The court interrupted, again noting that "you won't be presenting evidence in this case," and this ensued: "MR. LANDFAIR: As you said, your Honor, this is principally a case of the administrative record while there's some chance we might move to supplement the record in some way. "THE COURT: This is an appeal. Isn't that right? "MR. LANDFAIR: It's a request for judicial review of the agency's decision. "THE COURT: There won't be any evidence that's not in the record. "MR. LANDFAIR: I generally agree with that. "THE COURT: You all will be making legal arguments about the sufficiency and the wisdom at some time of the decision or the sufficiency of the decision of the agency. If I deny this motion you may well want to consult with the Farmers for their input. "Actually, I just don't see how you can ignore the arguments that somebody else might make. "MR. LANDFAIR: We would not ignore them, your Honor. I'm just saying I'm not certain they would be exactly— "THE COURT: You'd like to have an extra brief on the subject because the more paper the better. [¶] . . . [¶] All right. Any final words on your part? "MS. GROTTVEIT: Your Honor, only to emphasize that in addition to just the limited area, that Agriculture feels that it wants to speak to the Court on—if there were settlement negotiations Agriculture would not have a seat at that table unless they were intervenors. "THE COURT: I don't deal with settle[ment] negotiations. "MS. GROTTVEIT: Understood. "THE COURT: The parties do. They brought this lawsuit. They brought it against the State. If you want to have input in that conflict you can speak through the manufacturer. I'm denying the motion."

That same day, Judge Roesch filed an order denying the motion, which order provided in pertinent part as follows:

"IT IS HEREBY ORDERED THAT:

"The tentative ruling is affirmed, modified, as follows: The Motion of Proposed Intervenors Nisei Farmers League, et al. (`NFL') for Reconsideration of Order Denying Application for Leave to Intervene and Application under CCP §387 for Leave to Intervene is DENIED. "The motion, which seeks reconsideration of an order issued April 11, 2011, was filed April 21, 2011. The motion is untimely per Code of Civil Procedure Section 1008. "Nor does the motion provide new facts or evidence to support intervention under section 387(b), the mandatory intervention provisions on which the prior application was apparently based. Indeed, NFL argues for permissive intervention here. "Even if the Court considered this application to be a new and distinct application for permissive intervention under Section 387(a), the Court does not find that the facts here warrant an exercise of discretion to permit intervention, as the Real Party In Interest/manufacturer, and its positions on the issues of law to be litigated in this matter are identical to proposed intervenors, NFL, et al, members of its customer base."

Denial of the Motion for Reconsideration Was Not an Abuse of Discretion

Code of Civil Procedure section 1008 governs a motion for reconsideration, and provides in pertinent part that such motion must be based on "new or different facts, circumstances, or law" than those before the court at the time of the original ruing. As the leading practical treatise describes it, "`New or different facts, circumstances, or law': The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstances not previously considered, and some valid reason for not offering it earlier. [Citations.] [¶] The burden under ¶ 1008 `is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.'" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶9:328, p. 9(1)-128.)

We review a trial court's ruling on a motion for reconsideration for an abuse of discretion. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 724; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Applicants' argument on this issue has two parts: that (1) their motion was timely, and (2) they "met the standard for reconsideration based upon new or different facts or circumstances." We agree with applicants' first argument, and thus address their second. And reject it.

Applicants' claim is that the original motion to intervene—which was denied—was made pursuant to the stipulation and, in applicants' words: "Upon the Court's rejection of the parties' Stipulation, [applicants] submitted declarations setting forth their clear and direct interest in this transaction as well as statements that their interest would not be adequately protected by either DPR or the manufacturer Arysta. These were not facts or circumstances before the Court on [Applicants'] Application for Intervention and [Applicants] have provided a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co., supra, 135 Cal.App.4th [at p.] 212; see also, Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1161; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343."

And, they go on: "The facts asserted on the motion for reconsideration need not be newly discovered; they need only be different from those asserted on the original motion. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386-1387 n. 9 (citing Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943-944); New York Times Co., supra, 135 Cal.App.4th [at p.] 213 (`Case law after the 1992 amendments to section 1008 has relaxed the definition of `new or different facts,' but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court.'). See also Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 827-28."

We are not persuaded. And Kalivas v. Barry Controls Corp., supra, 49 Cal.App.4th 1152, on which Applicants primarily rely, is easily distinguishable.

The facts there, as Applicants accurately describe them, were that "Plaintiff's counsel had been misled by a courtroom local rule which led counsel to believe that the summary judgment motion had been removed from the calendar until a meet and confer conference occurred between the parties. Accordingly, Plaintiff did not file an opposition and separate statement and did not appear at the hearing on the summary judgment motion and as a result summary judgment was entered in the case. Upon receiving notice of same Plaintiff timely filed a motion for reconsideration." The trial court denied the motion, but the Court of Appeal reversed, holding that denial of the motion for reconsideration was improper as the courtroom local rule misled plaintiff and the trial court never received plaintiff's evidence or considered her arguments on the merits. (Kalivas v. Barry Controls Corp., supra, 49 Cal.App.4th at p. 1161.)

That is hardly the situation here. Applicants were not misled by anything. They made a decision to do what they did. And a later—and different—decision does not meet the requirements of Code of Civil Procedure section 1008. (See, e.g., Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692-693, fn. 6, holding that a homeowner's belief that certain evidence was not necessary at hearing in summary judgment motion in homeowners association's action to recover unpaid assessment was "patently insufficient" to warrant reconsideration; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690, holding that movant was not entitled to vacation of summary judgment as a matter of law, rejecting claim that there was evidence showing triable issues of fact not presented in initial opposition to summary judgment motion. In short, Applicants did not demonstrate "new or different" facts or circumstances.

But even if they had, it would not mean that Applicants would be given leave to intervene. Or, to put it conversely, granting a motion for reconsideration does not mean that the court must change its mind: upon reconsideration the court may simply reaffirm its original order. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) And as demonstrated by Judge Roesch's comments at the hearing on the motion for reconsideration, there were good reasons he did what he did, good reasons why Applicants should not be allowed to intervene.

We close with a final observation, one we make in light of one express provision in the stipulation, that applicants' participation would be limited to the filing of one brief. To not be allowed to do this can hardly amount to a showing of, in the words of City and County, "injustice," especially as such might be accomplished by a request to file an amicus curiae brief. (See La Mesa Etc. Irr. Dist. v. Halley (1925) 195 Cal. 739, 743; Jersey Maid Milk Products Co. v. Brock (1939) 13 Cal.2d 661, 665.) While we cannot comment on the likelihood of such a request succeeding, if it did it would afford applicants all they would have been entitled to under the stipulation.

DISPOSITION

The orders are affirmed.

Kline, P.J., and Haerle, J., concurs.


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