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George Hahn et al v. Department of Pesticide Regulation

November 1, 2012

GEORGE HAHN ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF PESTICIDE REGULATION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34200980000361CUWMGDS)

The opinion of the court was delivered by: Hull , J.

Hahn v. Dept. of Pesticide Regulation CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiffs George Hahn and California Vermiculture, LLC (collectively plaintiffs), manufacture and sell Wormgold products made from worm feces, otherwise known as castings. Defendant California Department of Pesticide Regulation (department) issued a notice of proposed action for civil penalties against plaintiffs for marketing and selling the Wormgold products as unregistered pesticides in violation of Food and Agriculture Code section 12993, which prohibits the sale of any unregistered "pesticide . . . or any substance . . that is represented to be a pesticide." (Food & Agr. Code, § 12993; further unspecified section references are to this code.) Following an administrative hearing, plaintiffs were found to be in violation of section 12993 and were ordered to pay $100,000 in civil penalties.

Plaintiffs filed a petition for writ of administrative mandate in the superior court seeking review of the administrative hearing officer's order. Finding plaintiffs represented the Wormgold products to be pesticides in violation of section 12993, the trial court entered judgment denying the writ petition.

On appeal, plaintiffs contend the trial court erred in that the Wormgold products are not "pesticides," as that term is defined in section 12753, subdivision (b) (hereafter section 12753(b)), and are therefore not subject to section 12993's registration requirement or to the department's jurisdiction. The department disputes that claim, asserting the trial court correctly found plaintiffs represented the Wormgold products as pesticides in violation of section 12993.

The parties also dispute the admissibility of evidence, both testimonial and documentary, on which plaintiffs rely in this appeal to support their claim that the Wormgold products are not "pesticides" under section 12753(b). The department asserts plaintiffs never established how the Wormgold products work, if at all, offering no expert testimony in that regard, and that the documents plaintiffs relied on at the administrative hearing were either not offered or admitted for their truth or not admitted at all and thus not admissible on appeal. Plaintiffs also object to the department's references to, and reliance on, federal statutes and regulations in determining whether the Wormgold products are pesticides.

We conclude the record supports the trial court's finding that plaintiffs represented the Wormgold products to be pesticides in violation of section 12993, thus vesting the department with jurisdiction to impose civil penalties for failure to meet applicable registration requirements. We therefore need not decide whether the Wormgold products are in fact "pesticides" as that term is defined in section 12753. We affirm the judgment.

FACTS AND PROCEEDINGS

Plaintiff California Vermiculture, LLC, doing business as Tree and Plant Rescue, manufacture, advertise, distribute, and sell three related products: Wormgold, a product which consists entirely of worm castings collected from worms that have been fed a diet of nothing but cardboard sludge; Wormgold Plus, which consists of worm castings mixed with rock mineral and fossilized kelp; and Tree and Plant Rescue Solution (TPRS), which consists of Wormgold Plus, molasses, vegetable compost, humic acid and oak flour mixed with water. Plaintiff George Hahn is California Vermiculture, LLC's chief executive officer.

Wormgold, Wormgold Plus, and TPRS (collectively the Wormgold products) are applied to the soil around plants or sprayed directly on the plant's leaves, trunk, and stem. Plaintiffs claim the Wormgold products add nutrients to depleted or unhealthy soil, promote plant growth, and improve plants' natural resistance to infestation by insects and other pests. They claim the Wormgold products are not intended to be ingested by pests and do not kill insects, are not poisonous to humans and do not contaminate vegetables, and do not act directly on pests to kill them or bar them from approaching or lighting on a plant. Rather, the Wormgold products are intended to be ingested by plants for the purpose of improving the plant's health and fostering its natural resistance to pests. Plaintiffs believe the Wormgold products accomplish this result by causing plants to produce more chitinase, an enzyme which degrades the chitin contained in the exoskeletons of unfriendly pests, which then causes insects to avoid those plants.

Plaintiffs began selling the Wormgold products in 1998, promoting them with advertisements that touted not only the products' capacity to make plants healthy and strong, but also their "insect repellency" and "fungus control" properties. The ads stated the Wormgold products were "non-toxic" and "all organic." While the ads often stated the Wormgold products were not pesticides, they also frequently contained claims that the products would "[r]epel harmful insects," "[c]ontrol diseases caused by unfriendly fungus and bacteria," and cause various pests to leave and fungus diseases to die.

Plaintiffs obtained patents related to the Wormgold products for "methods of using worm castings for fungal control" and "methods of using worm castings for insect repellency." While the Wormgold products were never registered as pesticides, plaintiffs did register Wormgold and Wormgold Plus with the Department of Food and Agriculture as "packaged soil amendment[s]" in 2004.

In 2007, the department issued a notice of proposed action (NOPA) against plaintiffs for $110,000 in civil penalties pursuant to section 12999.4 for failure to register the Wormgold products as pesticides. Section 12999.4, subdivision (a), empowers the department to levy civil penalties in lieu of civil prosecution for violations of section 12993.

The first count alleged sales of unregistered Wormgold products on the internet in violation of section 12993, for which the department sought $15,000 in civil penalties. The second count alleged sales of unregistered Wormgold products through the application of TPRS to trees owned by private parties within California in violation of section 12993, for which the department sought $50,000 in civil penalties. The third count proposed a $5,000 penalty for each quarter plaintiffs sold unregistered Wormgold products between April 10, 2003, and June 28, 2005, which amounted to $45,000.

Following an administrative hearing, the hearing officer issued a proposed decision recommending imposition of $100,000 based on a finding that plaintiffs made 20 sales of unregistered product during the relevant time period. The department adopted the hearing officer's recommendations ...


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