NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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.
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:
As indicated, the stipulation referred to in the application was attached to it, which stipulation provided in its entirety as follows:
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:
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.
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 , 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 then heard briefly from counsel for Arysta, the manufacturer. The court responded, and this is how the hearing ended:
That same day, Judge Roesch filed an order denying the motion, which order provided in pertinent part as follows:
"IT IS HEREBY ORDERED THAT:
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, "`
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.
The orders are affirmed.
Kline, P.J., and Haerle, J., concurs.