Trial Court: Santa Cruz County Superior Court Superior Court No. CV157041 Trial Judge: Hon. Robert B. Atack
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
(Santa Cruz County Super. Ct. No. CV157041)
Plaintiff Jacobs Farm/Del Cabo, Inc. (Jacobs), sued defendant Western Farm Service, Inc. (Western Farm), alleging that pesticides defendant applied to fields near plaintiff's farm migrated to plaintiff's land, contaminated plaintiff's crop, and rendered the crop unmarketable. Plaintiff sued defendant for crop losses it suffered in 2006 and for an injunction to prevent further pesticide applications in 2007. By the time of trial in 2008, the injunction issue was moot; both the 2006 and the 2007 crops had been contaminated by the migrating pesticide. A jury found defendant liable in negligence, trespass, and nuisance and awarded plaintiff $1 million for the 2007 loss but nothing for 2006.
On appeal, defendant raises several arguments relating to the overall viability of plaintiff's claims in light of the comprehensive statutory scheme governing the use of pesticides in California. (Food & Agr. Code, § 11401 et seq.; Cal. Code Regs., tit. 3, § 6000 et seq., collectively, the pesticide laws.)*fn1 Defendant argues that the superior court lacked jurisdiction, except as allowed by the pesticide laws, to issue an injunction controlling the place where pesticides may be applied. Because that issue is not properly before us, we do not reach it. Defendant also raises several challenges to plaintiff's common law claims for damages. We reject these on their merits. We hold that plaintiff's causes of action for negligence, trespass, and nuisance are not displaced by the pesticide laws; the statutory scheme leaves ample room for such claims. We also find that the negligence and trespass causes of action were not barred by an administrative determination that defendant had complied with the pesticide laws, that the trial court did not err by instructing the jury in the doctrine of negligence per se, and that Civil Code section 3482 does not bar the nuisance cause of action. Accordingly, we shall affirm.
Plaintiff is a farming company that leases approximately 120 acres in Wilder Ranch State Park (Wilder Ranch) where it grows organic crops, including culinary herbs such as rosemary, dill, and cilantro. Defendant is a dealer in agricultural chemicals who advises farmers on the use of pesticides, recommends and sells products for control of pests, and also provides pesticide application services.
Plaintiff's Wilder Ranch fields are surrounded on three sides by other farms and on the south by the Pacific Ocean. The entire area, including the Wilder Ranch property, had been farmed conventionally and planted in Brussels sprouts for most of the past 50 years or more. Plaintiff began its organic farming enterprise at Wilder Ranch in 1998 and was certified as an organic farm under the National Organic Program in 2000. By 2006, when the incidents giving rise to this suit first arose, two of the surrounding farms were still planted in conventionally grown Brussels sprouts.
During the 2006 growing season, defendant recommended and applied certain organophosphate pesticides*fn2 to the Brussels sprouts fields adjacent to Wilder Ranch. These pesticides are important to the Brussels sprouts industry, having been used successfully for over 30 years to kill or retard the growth of pests that could otherwise destroy the growing crop. Defendant applied the pesticides pursuant to permits issued by the Santa Cruz County Agricultural Commissioner (commissioner). Defendant made the applications in a manner that would prevent it from drifting to nontarget crops during the application process. Nevertheless, some time after it was applied, some of the pesticide dispersed into the air (volatilized) and moved with the fog or the wind over plaintiff's fields. This was a problem because herbs like rosemary and dill are particularly susceptible to picking up the volatilized chemical. It was also a problem because the federal Environmental Protection Agency (EPA) sets no maximum tolerance level for organophosphate pesticide residue on those herbs. Herbs with any detectable amount of the pesticides cannot be sold--either as organic or conventional--period. Thus, when the pesticide volatilized and moved over plaintiff's farm, the herbs picked up the airborne chemicals and the crop was ruined.
Plaintiff first discovered the pesticide residue in October 2006, when one of plaintiff's wholesale customers alerted plaintiff to the results of tests it conducted on herbs grown at Wilder Ranch. Plaintiff reported the finding to the commissioner and filed a crop-loss report in November 2006. Plaintiff conducted its own investigation into the source of the contamination and, as part of that investigation, obtained a list from the commissioner's office, setting forth the names and pesticide permit numbers of all growers within a five mile radius of plaintiff's fields. Plaintiff determined that defendant had applied the pesticides on the fields closest to Wilder Ranch and, in February 2007, plaintiff's attorney informed defendant that plaintiff held it responsible for the contamination.
The deputy commissioner, Lisa LeCoump, conducted the commissioner's investigation to determine if the pesticide residue on the herbs was caused by a violation of the pesticide laws. In particular, the deputy commissioner's investigation focused upon whether defendant had violated title 3, section 6614, which provides, among other things, that "[n]otwithstanding that substantial drift will be prevented," a pesticide applicator must defer or cease a pesticide application if there is a "reasonable possibility of damage" to nontarget crops. (Tit. 3, § 6614, subd. (b)(2).) In her report dated March 5, 2007, the deputy commissioner noted that defendant's responsibility under the regulation was to avoid drift, which she interpreted to mean the movement of the pesticide away from the target crops at or around the time the pesticide is applied. The commissioner did not hold the pesticide applicator responsible for movement of the pesticide after the application, "such as by translocation, volatilization, evaporation or other forms of 'lift off.' " Applying that interpretation of the regulation, the deputy commissioner found no evidence that defendant had violated title 3, section 6614. The commissioner did not add any conditions to defendant's pesticide application permits for the 2007 growing season.
Plaintiff did not pursue to finality any administrative challenge to the deputy commissioner's conclusion that defendant had not violated the law nor to the commissioner's failure to add conditions to the permits for the 2007 growing season. According to plaintiff's founder, Laurence Jacobs, the commissioner's office had told him there was nothing it could do about postapplication drift.
In April 2007, plaintiff's rosemary crop showed low but detectable levels of pesticide, prompting plaintiff to file a complaint in the superior court on May 8, 2007. The complaint alleged causes of action for negligence, trespass, and nuisance and prayed for damages and an injunction. Plaintiff sued only defendant. Plaintiff did not sue the commissioner or the farm operators who had hired defendant to spray their fields. The complaint alleged that defendant was responsible for contaminating plaintiff's crop in 2006 and, that "Plaintiff fears that unless Defendant is enjoined from causing hazardous pesticides to appear in Wilder Ranch Farm organic crop fields, Plaintiff will suffer irreparable harm to the crops planted for harvest in 2007 and to soils in which the crops are being grown." The local newspaper published a letter from Jacobs on or about June 10, 2007, in which he complained that under current law he could not stop the pesticide spraying that damaged his crop and that he had undertaken this lawsuit to change the law.
The trial court issued a temporary restraining order as plaintiff had requested, but dissolved the order in June 2007 and denied plaintiff's request for a preliminary injunction. The court noted that the deputy commissioner had found no violation of the pesticide laws and, as it happened, crop samples taken in May showed no detectable pesticide on the herbs.
During the spring of 2007, defendant had voluntarily decided to use different types of pesticides to control pests in the Brussels sprouts fields and had advised plaintiff's personnel whenever it planned to spray. But by July of that year, the pest population had increased to the point that defendant decided to return to the use of organophosphates, this time trying a product other than the one it had used in 2006, adding drift retardant, and taking other precautions in an attempt to prevent postapplication drift. Plaintiff continued testing its crop for the presence of organophosphate pesticide. Tests in July, August, and September 2007 came back positive for pesticide residue. Plaintiff filed another crop-loss report. The deputy commissioner performed a second investigation and again found no violation of the pesticide laws.
On September 25, 2007, plaintiff and defendant stipulated to a preliminary injunction by which defendant agreed not to apply the subject pesticides on two fields closest to plaintiff's fields, leaving a 1.5 mile buffer zone surrounding plaintiff's crop. In April 2008, the commissioner placed a condition upon defendant's pesticide application permits, requiring a half-mile buffer zone between the sprayed areas and plaintiff's fields.
II.TRIAL OF PLAINTIFF'S COMPLAINT FOR DAMAGES
Trial commenced in September 2008. Given the now-mandatory half-mile buffer zone, trial focused solely upon plaintiff's claims for damages. Plaintiff's experts testified that the volatilization phenomenon has been known to scientists for years. In areas where there is frequent coastal fog, such as Wilder Ranch, volatilization is common. The experts concluded that the organophosphate residue on plaintiff's crop had been deposited there by the volatilization process and that the source of the residue was the pesticides that defendant applied to one or another of the fields near plaintiff's farm.
Although scientists may have known about volatilization, none of the individuals involved in this case had actually known about it prior to the discovery of the residue on plaintiff's crop in October 2006. Jacobs did not know about volatilization until he began looking into why his crop turned up with the pesticide in 2006. William Rodoni, a third generation Brussels sprouts farmer whose fields were adjacent to plaintiff's, was surprised to learn that the pesticides could move off the target site. The deputy commissioner had assumed that once the pesticides were sprayed, they "pretty much stayed on the crop where they were sprayed." It was in the course of investigating plaintiff's crop-loss report that she first learned of a study from the 1980s showing pesticide contamination of a dill crop at Wilder Ranch caused by volatilized pesticide.
Plaintiff argued that defendant should have been aware of the possibility of volatilization and that had been negligent in failing to keep abreast of the scientific literature. A good portion of plaintiff's case was an attack upon the deputy commissioner's interpretation of title 3, section 6614. As plaintiff interpreted the regulation, a pesticide applicator must defer or cease a pesticide application if there is a reasonable possibility of damage to nontarget crops regardless of when that damage might take place. This was different than the deputy commissioner's understanding, which was that a pesticide applicator is not responsible for that which occurs after the pesticide is applied.
The deputy commissioner maintained her position at trial. Plaintiff's counsel asked, "Now, I don't think there's any confusion that to allow spray drift to leave a target site and injure another person's crop is against the laws and regulations, is it not?" The deputy commissioner replied, "Yes. But the definition of 'drift' is the movement during the application, so if it left after the application it's not under our jurisdiction." The deputy commissioner later conceded that her answer, that the commissioner's office does not have jurisdiction over postapplication drift, may not have been correct. Indeed, she acknowledged that the commissioner had imposed the buffer-zone condition upon defendant's permits for 2008 to help prevent postapplication drift. Nevertheless, she insisted "it's not a violation [of the regulation] if the material is moving offsite after the application. It's not considered drift, so it's not a violation of the drift regulation."
Defendant's theory was that it had followed the law, complied with the requirements of its permits, applied the pesticides with due care, and was not responsible for what happened after it finished the job. Douglas Okumura, a recently retired assistant director of the Department of Pesticide Regulation (DPR), supported the deputy commissioner's view of title 3, section 6614. He stated that the DPR holds a pesticide applicator responsible for drift before and during an application but not for movement that happens later. Defendant also argued that plaintiff was contributorily negligent in choosing to plant a vulnerable crop in an area surrounded by conventional Brussels sprouts farms and in failing to establish its own buffer zone between its crop and the neighboring fields.
In his argument to the jury, plaintiff's counsel urged the jury to read and consider the letter Jacobs had published in the local newspaper, pointing out that plaintiff had filed this case specifically to change the law. And, after summarizing the deputy commissioner's testimony that postapplication drift was not a violation of title 3, section 6614, plaintiff's counsel told the jury: "This is your time to construe that section using the language in the regulation and apply it accordingly. Because if it isn't in your jurisdiction, then this is a meaningless regulation. Somebody has to enforce that regulation. Here's the time and place to do that."
The trial court instructed the jury in the common law of negligence, trespass and nuisance, and also in the doctrine of negligence per se. With respect to negligence per se, the court instructed the jury in the language of title 3, section 6614, and told the jury, "If you decide that [defendant] violated this law and that the violation was a substantial factor in bringing about the harm, then you must find that [defendant] was negligent unless you also find that the violation was excused." Defendant would be excused from a violation if defendant "was not able to obey the law" or if defendant "reasonably believed, from prior representations from the [DPR] or the Santa Cruz County Agricultural commissioner, that the law did not apply to other than spray drift at the time of application and it was complying with the law."
The jury found, by a vote of nine to three, that defendant was negligent, had trespassed, had created a nuisance, and that its conduct was a substantial factor in causing harm to plaintiff. These findings did not specify whether the torts had been committed in 2006, 2007, or both, but the damages award was broken down by year. The jury awarded plaintiff zero for its 2006 crop loss and $1 million for the 2007 crop loss. Although the jury also found that plaintiff was contributorily negligent, it concluded that plaintiff's negligence was not a substantial factor in causing the harm. The trial court denied defendant's motions for new trial and judgment notwithstanding the verdict. Plaintiff dismissed its prayer for injunctive relief. Judgment was entered on the jury verdict. The trial court awarded attorney fees to plaintiff. Defendant has timely appealed.
The gist of defendant's contentions on appeal is that the statutory scheme governing pesticide use in California displaces common law claims to the extent such claims would have the effect of regulating the place where pesticides may be applied. The argument has two prongs. First, defendant maintains that the superior court has no jurisdiction to issue an injunction relating to pesticide use except as specifically permitted by the pesticide laws. Second, defendant argues that common law claims for damages are also displaced to the extent the claims relate only to the place where the pesticides were applied. Subsidiary arguments are that the deputy commissioner's finding of no violation should have been given collateral estoppel effect and that the trial court erred in instructing the jury in the doctrine of negligence per se. Defendant also argues that Civil Code section 3482, which states ...